Cardwell v. Bechtol

• Decision Date: 09 February 1987
• Docket Number: No. S,S
• Citation: Cardwell v. Bechtol, 724 S.W.2d 739, 67 A.L.R.4th 479 (Tenn. 1987)
• Parties: Wilma CARDWELL and Robert Cardwell, Individually and as Mother and Father and Next Friend of Sandra K. Cardwell, and Sandra K. Cardwell, Individually, Plaintiffs-Appellees, v. Dr. E.L. BECHTOL, Defendant-Appellant. /C 36
• Court: Tennessee Supreme Court

Page 739

724 S.W.2d 739

67 A.L.R.4th 479

Wilma CARDWELL and Robert Cardwell, Individually and as Mother and Father and Next Friend of Sandra K Cardwell, and Sandra K. Cardwell Individually, Plaintiffs-Appellees, v. Dr. E.L. BECHTOL, Defendant-Appellant.

No. S/C 36

Supreme Court of Tennessee at Knoxville.

Feb. 9, 1987.

John H. Hogin, Margaret G. Klein, Knoxville, for defendant-appellant.

Kenneth E. Hall, T. Harold Pinkley, Knoxville, for plaintiffs-appellees.

OPINION

DROWOTA, Justice.

An issue of first impression in Tennessee is raised in this appeal as to whether Tennessee should adopt a mature minor exception to the common law rule that requires a physician to obtain parental consent before treating a minor. This case arose out of treatment administered by Defendant, Dr. E.L. Bechtol, to Sandra K. Cardwell, the daugther of Robert and Wilma Cardwell. Defendant is a doctor of osteopathy. At the time of treatment, Sandra Cardwell was a minor. The suit was instituted by the Plaintiffs, Sandra Cardwell, individually, and by her parents, both individually and as next friends on behalf of their daughter.

While Sandra Cardwell (Ms. Cardwell) was attending high school, she had suffered from persistent but intermittent back pain. She first saw her family physician in the summer of 1981 for this problem. Subsequently, in early October, 1981, she went to the Knoxville Orthopedic Clinic where she was seen by Dr. Stevens. His preliminary diagnosis was that she was displaying symptoms associated with a herniated disc; he recommended that she be hospitalized for further tests and therapy. Her parents decided to obtain a second opinion before acceding to hospitalization and she went to see Dr. McMahon, an orthopedic specialist, in Oak Ridge on October 15, 1981; he concurred in the diagnosis and recommendation of Dr. Stevens.

On November 9, 1981, she was hospitalized at St. Mary's Medical Center in Knoxville. She was attended by Doctors Stevens and Wallace and underwent conservative treatment consisting primarily of physical therapy and injections. A recommended myelogram was rejected by her parents. A conservative course of treatment was continued following her discharge from the hospital on November 16, 1981. Dr. Sidney Wallace assumed treatment of Ms. Cardwell; he saw her several more times during the remainder of 1981 and in the early months of 1982. Apparently, both Ms. Cardwell and her parents hoped to avoid any necessity to resort to surgery.

Although her condition did not bother her continuously and she was usually able to participate in her normal high school activities, she was not obtaining any significant relief for her pain, despite the therapy and treatment she received under Dr. Wallace's care. In March, 1982, Dr. Wallace again recommended pre-surgical, diagnostic testing to identify definitely the nature of the problem, but Ms. Cardwell and her parents evidently continued to resist consideration of surgery. On April 26, 1982, having taken her mother's car to school, Ms. Cardwell left school early and went to see the family physician for treatment of a sore throat. With her mother's permission, she went to the family doctor's office alone. After her appointment with this doctor, she spontaneously decided that she would go to see Defendant, an osteopath who had treated her father's back condition on several occasions in the past. She had not told her parents that she was going to see Defendant but decided to do so on this day because her back was hurting her.

Defendant is a licensed osteopath but because he has been blind for most of his life, he limits his practice to manipulative treatments to adjust or realign the skeletal system. He conducts his sole practice with the assistance of his wife and daughter, who maintain his records. He was alone in his office when Ms. Cardwell came to see him. She told Defendant her name and that her father had been one of his patients; she also informed him of her symptoms and of the diagnoses of the orthepedic specialists she had seen. Defendant concluded, after examining her briefly, that a herniated disc was not her problem and treated her with manipulations involving her neck, spine, and legs for subluxation of the spine and bilateral sacroiliac slip. The treatment lasted for about 15 minutes, after which he asked her to return several times during the next few weeks for further manipulations. Ms. Cardwell wrote her name, age, and address down on a card Defendant supplied for this purpose and then paid his fee of $25.00 with one of her father's blank, signed checks, which had been given to her to be used when she needed money.

After Ms. Cardwell left Defendant's office, she began to experience a tingling and numbing sensation in her legs. She drove to her aunt's house and lay down to take a nap. She was awakened by severe pain about an hour later. The pain was such that she had difficulty walking, but having driven her mother's car, she was obligated to pick her up from work. She found she had difficulty driving and when she reached her mother's place of employment, her pain had become very intense. By the time she and her mother arrived at home, she was no longer able to walk by herself. Later in the evening, she was driven to the emergency room at St. Mary's Medical Center in Knoxville and was subsequently admitted. Over the course of the evening, she also developed urinary retention problems and had to be catheterized.

During the next few days, she underwent diagnostic testing, which confirmed that she had a herniated disc, and a laminectomy was performed on April 29, 1982. Although no visible nerve damage was apparent, she continued to experience bladder and bowel retention and had continued difficulty walking as well as decreased sensation in her legs and buttocks. Her condition has improved gradually since her surgery, but she had not yet regained normal bowel control or complete sensation in her buttocks and one of her legs at the time of trial.

This action was filed on April 22, 1983, in Anderson County Circuit Court. The initial complaint alleged only medical malpractice (in the diagnosis and treatment of Ms. Cardwell's condition) but the complaint was subsequently amended to include counts of battery (failure to obtain parental consent), negligent failure to obtain consent, and failure to obtain informed consent. The case was tried from September 25 to 27, 1984. At the close of the Plaintiffs' evidence, Defendant's Motion for a Directed Verdict on the medical malpractice issue was granted by the trial court because Plaintiffs had failed to carry their burden of proof under T.C.A. § 29-26-115, which requires that a plaintiff in a medical malpractice suit produce expert testimony on the local standard of care of a physician in a practice or specialty relevant to the treatment performed by the defendant. The remaining issues of battery and informed consent were submitted to the jury; the jury instructions included the mature minor exception to the requirement of parental consent to perform medical treatment on a minor. A general verdict was returned for Defendant.

On appeal, the Eastern Section affirmed the trial court's directed verdict on the malpractice count, holding that Plaintiffs' expert witness, an orthopedic surgeon, was not qualified by his own admission to testify regarding the standard of care of an osteopath in this situation, and thus the trial court did not abuse its discretion in disqualifying his testimony. Nevertheless, the Court of Appeals reversed on the issue of battery because neither the Tennessee Legislature nor the Tennessee Supreme Court had adopted the mature minor exception to the established common law rule that a physician cannot treat minors without parental consent. Having directed a verdict on its finding of a technical battery, the intermediate court determined that it had no choice but to reverse and remand the case for a new trial solely on the issue of damages.

A timely Application for Permission to Appeal was filed by the Defendant and was granted by this Court. We now reverse the Court of Appeals on the issue of battery and reinstate the judgment of the trial court. The issues presented on appeal concern the capacity of a mature minor to give informed consent to medical treatment under the mature minor exception and the requirements of expert testimony under the Medical Malpractice Statute, T.C.A. §§ 29-26-115 and 29-26-118.

I. The Mature Minor Exception

A.

On April 26, 1982, the date of Ms. Cardwell's treatment by Defendant, she was 17 years, 7 months of age, a senior in high school with good grades, and was planning to attend college. She had been licensed to drive since she was 16 years old. As a routine practice from the time she was 14 years old, she had permission to use her father's checking account; she carried several signed, blank checks in lieu of cash and had been very responsible in the exercise of this privilege. Testimony consistently characterized Ms. Cardwell as a mature young woman who acted somewhat older than her age. Her parents permitted her substantial discretion because of her demonstrated maturity.

On the day she went to see Defendant, she had taken her mother's car so that she could go by herself to see the family physician about a sore throat. She had left school early and with her parents' permission had gone to this doctor's office alone, where she was examined and treated by the family doctor, who had not personally obtained parental consent. She decided to see Defendant on her own initiative because she knew her father had been to see him and she thought that Defendant might be able to provide some relief for her back pain. She had not told her parents that she was going to see Defendant and apparently had not been encouraged to do so by her parents. Although she did not know exactly what manipulative therapy involved, she was generally aware of the kind of practice an...