Pemberton v. Tallahassee Memorial Regional Medical

• Decision Date: 13 October 1999
• Docket Number: No. 4:98CV161-RH.,4:98CV161-RH.
• Citation: 66 F.Supp.2d 1247
• Parties: Laura L. PEMBERTON, et al., Plaintiffs, v. TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, INC., Defendant.
• Court: U.S. District Court — Northern District of Florida

66 F.Supp.2d 1247

Laura L. PEMBERTON, et al., Plaintiffs, v. TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, INC., Defendant.

No. 4:98CV161-RH.

United States District Court, N.D. Florida, Tallahassee Division.

October 13, 1999.

Marie A. Mattox, Mattox & Hood PA, Tallahassee, FL, Kenneth L. Connor, Scott Edward Gwartney, Wilkes & McHugh PA, Tallahassee, FL, for Plaintiffs.

Laura Beth Faragasso, Henry Buchanan Hudson, Tallahassee, FL, Jesse F. Suber, Henry Buchanan Hudson et al, Tallahassee, FL, for Defendant.

ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT

HINKLE, District Judge.

This action arises from a state court's order compelling plaintiff Laura L. Pemberton who was in labor attempting vaginal delivery at home at the conclusion of a full-term pregnancy, to submit to a caesarean section that was medically necessary in order to avoid a substantial risk that her baby would die during delivery. Based on the state court's order, physicians on the medical staff of the defendant hospital performed the caesarean section, resulting in the birth of a healthy baby. Ms. Pemberton suffered no complications.

Ms. Pemberton asserts the procedure was not medically necessary. She claims the physicians who rendered opinions that the procedure was medically necessary (and for whose actions the hospital has accepted responsibility), as well as the hospital itself, acted under color of state law. Ms. Pemberton claims the hospital and physicians violated her substantive constitutional rights and her right to procedural due process. Ms. Pemberton also alleges Florida common law theories of negligence and false imprisonment. Concluding that Ms. Pemberton's constitutional rights were not violated and that the hospital and physicians were not negligent, I grant summary judgment in favor of the hospital.

Background

Ms. Pemberton delivered a prior baby in 1995 by caesarean section. Most caesarian sections are performed using a horizontal incision. Ms. Pemberton's 1995 caesarian, however, was performed using a vertical incision. Moreover, the vertical incision extended well beyond a traditional low vertical incision up into the thickened myometrium. The nature of this caesarean presented a greater risk of uterine rupture during any subsequent vaginal delivery than would be the case with a more typical caesarean section.

When she became pregnant again in 1996, Ms. Pemberton attempted to find a physician who would allow her to deliver vaginally. She was unable to find any physician who would do so. Every physician she contacted advised her that, because of the type of caesarean section she had undergone previously, vaginal delivery was not an acceptable option.

Undeterred, Ms. Pemberton made arrangements to deliver her baby at home, attended by a midwife, without any physician attending or standing by and without any backup arrangement with a hospital. On January 13, 1996, after more than a full day of labor, Ms. Pemberton determined she needed an intravenous infusion of fluids; she had been unable to hold down food or liquids and was becoming dehydrated. She went with her husband, plaintiff Kent Pemberton, to the emergency room of defendant Tallahassee Memorial Regional Medical Center ("the hospital"), where she requested an IV.

Ms. Pemberton first saw a family practice resident on call for obstetrics, who brought the case to the attention of Dr. Wendy Thompson, a board-certified family practice physician whose practice included obstetrics. Dr. Thompson advised Ms. Pemberton that she needed a caesarean section. Ms. Pemberton refused, saying she wanted only an IV so she could return home to deliver vaginally. Dr. Thompson declined to assist in that plan by ordering only an IV and instead notified hospital officials of the situation. Hospital officials set about securing additional opinions from board certified obstetricians Dr. A.J. Brickler and Dr. David R. O'Bryan, the chairman of the hospital's obstetrics staff. Dr. Brickler and Dr. O'Bryan each separately concurred in the determination that a caesarean was medically necessary. Meanwhile, the Pembertons left the hospital against medical advice, apparently surreptitiously.

The hospital set in motion a procedure devised several years earlier (and used once previously) to deal with patients who refuse to consent to medically necessary treatment. The hospital called its long-time attorney, John D. Buchanan, Jr., who in turn called William N. Meggs, the State Attorney for Florida's Second Judicial Circuit, where Tallahassee is located. Mr. Meggs, who had the responsibility under Florida law to institute any court proceeding seeking to compel a medical procedure without a patient's consent,¹ deputized Mr. Buchanan as a special assistant state attorney for purposes of dealing with this matter. Mr. Buchanan contacted Second Circuit Chief Judge Phillip J. Padovano, advised him of the situation and of Mr. Buchanan's intent to file a petition on behalf of the State of Florida seeking a court order requiring Ms. Pemberton to submit to a caesarean section, and requested a hearing.

Judge Padovano went to the hospital and convened a hearing in the office of hospital Senior Vice President and Chief Medical Officer Dr. Jack MacDonald. In response to the judge's questions, Drs. Thompson, Brickler and O'Bryan testified unequivocally that vaginal birth would pose a substantial risk of uterine rupture and resulting death of the baby.

Judge Padovano ordered Ms. Pemberton returned to the hospital. Mr. Meggs and a law enforcement officer went to Ms. Pemberton's home and advised her she had been ordered to return to the hospital. She returned to the hospital by ambulance against her will.

Judge Padovano then continued the hearing in Ms. Pemberton's room at the hospital. Both she and Mr. Pemberton were allowed to express their views. The judge ordered that a caesarean section be performed.

Dr. Brickler and Dr. Kenneth McAlpine performed a caesarean section, resulting in delivery of a healthy baby boy. Ms. Pemberton suffered no complications.

In due course, Mr. Buchanan prepared a written petition setting forth the claim for relief previously submitted orally and a proposed order. Judge Padovano entered the order on February 2, 1996. Ms. Pemberton did not appeal.²

Ms. Pemberton now seeks in this federal court an award of damages against the hospital. She has not named the physicians as defendants because the hospital has agreed, for purposes only of the claims at issue in this lawsuit, that the physicians acted as agents of the hospital, thus allowing entry of a judgment against the hospital for any claim established against any or all of the physicians.

Ms. Pemberton claims that the forced caesarean violated her substantive constitutional rights and that the procedure that led to entry of the order violated her right to procedural due process. She seeks relief under 42 U.S.C. § 1983 and, alleging conspiracy, under 42 U.S.C. § 1985. Ms. Pemberton also alleges common law negligence, in effect, medical malpractice, as well as false imprisonment arising from her forced return to the hospital. Mr. Pemberton joins as a plaintiff alleging loss of consortium.³

The hospital has moved for summary judgment. For the reasons that follow, I grant the motion.⁴

Discussion

I. SUBSTANTIVE CONSTITUTIONAL RIGHTS

Ms. Pemberton invokes a variety of theories in support of her claim that requiring her to undergo a caesarean section was unconstitutional. She asserts a right to bodily integrity, a right to refuse unwanted medical treatment, and a right to make important personal and family decisions regarding the bearing of children without undue governmental interference. She also invokes her right to religious freedom, although she does not specifically delineate the belief she says was violated or specifically identify its religious mooring.⁵

All of these are important interests of constitutional dimension. With the exception of religion, the Constitution does not explicitly address these various interests, but their constitutional stature has been recognized repeatedly.⁶ Ms. Pemberton invokes the First, Fourth, Eighth and Fourteenth Amendments of the United States Constitution; all of these save the Eighth probably speak to the interests at issue. While the precise reach of these various constitutional principles in this context remains unclear, it cannot be doubted that Ms. Pemberton had important constitutional interests that were implicated by the events the hospital set in motion.

Recognizing these constitutional interests, however, is only the beginning, not the end, of the analysis. Ms. Pemberton was at full term and actively in labor. It was clear that one way or the other, a baby would be born (or stillborn) very soon, certainly within hours. Whatever the scope of Ms. Pemberton's personal constitutional rights in this situation, they clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child.⁷

This is confirmed by Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). There the Court recognized the state's increasing interest in preserving a fetus as it progresses toward viability. The Court concluded that by the point of viability — roughly the third trimester of pregnancy — the state's interest in preserving the life of the fetus outweighs the mother's own constitutional interest in determining whether she will bear a child.⁸

The balance tips far more strongly in favor of the state in the case at bar, because here the full-term baby's birth was imminent, and more importantly, here the mother sought only to avoid a particular procedure for giving birth, not to avoid giving birth altogether. Bearing an unwanted child is surely a greater intrusion on the mother's constitutional interests than undergoing a caesarean section to deliver a child that the mother affirmatively desires to deliver.⁹ Thus the state's interest here was greater, and ...