# Petition — Fitzgerald v. Porter Memorial Hospital > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1762%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 916 ## Text Buy sve Court, U. & FIiLesE D 1976 IN THE Supreme Court of the Unit October Term, 1975 “No. 75-3203 EVELYN FITZGERALD, BRUCE FITZGERALD, DEBRA GREEN- ER, MICHAEL GREENER, GAIL ATHA, BARBARA STAFFELD, CHARLES STAFFELD, DIANA ARNETT, CHARLES ARNETT, PAULETTE THOMAS, THOMAS THOMAS, HENRY FARAG, DON- NA FARAG, SUSAN CHUBBS, BRUCE CHUBBS; and on behalf of all other persons similarly situated, AK, JR., CLERK Petitioners, VS. PORTER MEMORIAL HOSPITAL; ARTHUR S. MALASTO, in his capacity as Administrator of Porter Memorial Hospital; and MAURICE MASON, JAMES W. CHESTER, WARREN H. CANRIGHT, and JAMES J. CRANDALL, individually and in their capacities as members of the Board of Trustees of Porter Memorial Hospital. Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT IVAN E. BODENSTEINER Indiana Civil Liberties Union 606 Indiana Valparaiso. Indiana 46383 Atterney fer Petitioners ” i TABLE OF CONTENTS TABLE OF AUTHORITIES . OPINIONS BELOW . JURISDICTION . , : QUESTION PRESENTED FOR REVIEW CONSTITUTIONAL PROVISIONS INVOLVED . STATEMENT OF THE CASE : REASONS FOR ALLOWANCE OF THE WRIT. CONCLUSION . APPENDIX: Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716 (7th Cir. 1975). : Seventh Circuit Order of November 21, 1975, concerning plaintiffs' Petition for Re- hearing. ee P os 6 13 14 an ee eng een we guerre 1 eee QE re nee — eee — - iii Hurwitz v. Directors Guild of Pmer ice, Fae, , 304 F.2d 67 , cert. dented, 385 U. s. 971 (1966) . . K-2 Ski C any v. Head Skit Gom- pany; > “306 ms ” fees = Levin v. Mississippi River Fuel ~ Corporation, ae U.S. 162 (1966). Mercury Motor Express, Inc. v. Srivke. G75 F.2d 1086 (th i ee ge eee en ee Roe v. Ferguson, 515 F.2d 279 .. 8 Sap) 2p) Swann v. Charlotte Mecklenbur Board of Education, 489 Fa 966 (4th cir. 1974) ..... t r. Thomas v. Shaw, _ F.2d aa aad = | Turner v. “ae of Memphis, 369 ; (L961) ; Wulff v. St leton, 508 F.2d 1211 t cert. granted, 95 S. Ct. "2655 (1975) STATUTES 28 U.S.C. §1254(1) 28 U.S.C. §1343(3) and (4) 42 U.S.C. §1983 15 15 16 17 15 16 iv OTHER AUTHORITIES Rule 19(1)(b) of Rules of the Supreme Court of the United States ... 3 9 Moore's Federal Procedure, §110.25 5 (oe Oh. See cs ke ee at eee ee IN THE SUPREME COURT OF THE UNITED STATES October Term, 1975 No. EVELYN FITZGERALD, BRUCE FITZGERALD, DEBRA GREENER, MICHAEL GREENER, GAIL ATHA, BARBARA STAFFELD, CHARLES STAF- FELD, DIANA ARNETT, CHARLES ARNETT, PAULETTE THOMAS, THOMAS THOMAS, HENRY FARAG, DONNA FARAG, SUSAN CHUBBS, BRUCE CHUBBS; and on behalf of all other per- sons similarly situated, Petitioners, vs. PORTER MEMORIAL HOSPITAL; ARTHUR S. MALASTO, in his capacity as Administra- tor of Porter Memorial Hospital; and MAURICE MASON, JAMES W. CHESTER, WARREN H. CANRIGHT, and JAMES J. CRANDALL, individually and in their capacities as members of the Board of Trustees of Porter Memorial Hospital, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 2 Petitioners, Evelyn Fitzgerald, Bruce Fitzgerald, Debra Greener, Mich- ael Greener, Gail Atha, Barbara Staf- feld, Charles Staffeld, Diana Arnett, Charles Arnett, Paulette Thomas, Thomas Thomas, Donna ees ¢ Henry Farag, Susan Chubbs, Bruce Chubbs, individual iy and on behalf of all other persons similarly situated, respectfully pray that this Court issue a Writ of Certiorari to review and reverse the judgment of the United States Court of Appeals for the Seventh Circuit in Fitzgerald v. Porter Memorial Hospital, . t r. , entered on September 26, 1975, affirming the decision of the United States District Court for the Northern District of Indiana (Hammond Division) in Fitzgerald v. Porter Memorial Hos- pital, No. 74- (September I0, 1974). OPINIONS BELOW The opinion of the United States Court of Appeals for the Seventh Cir- cuit (hereinafter Seventh Circuit) was reported at 523 F.2d 716 (7th Cir. 1975) and may be found at pages A-l through A-13 of the Appendix. An order denying petitioners’ petition for rehearing and suggestion for en banc determination was entered on November 21, 1975. This order may be found at page A-14 of the Appendix. The opinion of the District Court may be found at pages A-15 through A-17 of the Appendix. ee ere ey, Se 3 JURISDICTION The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1254(1) and Rule 19(1)(b) to review a decision of the Seventh Circuit which decided an important question of federal law which has not been, but should be, settled by this Court and to exercise its supervi- sory powers over lower federal courts. QUESTION PRESENTED FOR REVIEW The petitioners present the fol- lowing question for review by this Court: Whether the Seventh Circuit erred in de- ciding a constitutional issue of first impression and of grave importance with- out the benefit of an evidentiary hear- ing. CONSTITUTIONAL PROVISIONS INVOLVED On the merits, this action touches on questions involving the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. How- ever, the limited question presented for review is essentially one of procedure rather than substance. STATEMENT OF THE CASE A. Nature of the Case This is an action brought pursuant to 42 U.S.C. §1983 by pregnant women and 4 their husbands seeking injunctive relief and damages for violation of rights se- cured to them by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. Jurisdiction is based on 28 U.S.C. §1343(3) and (4). Petitioners challenge the policy of de- fendant Porter Memorial Hospital that prohibits the presence of any non-medi- cal person in the delivery room during the birth of a child. Other defendants are the administrator of the hospital and the members of the hospital board of trustees. B. Statement of the Facts Petitioners are pregnant women and their husbands who have taken a compre- hensive course of study in and have prac- ticed various techniques and exercises which are a requisite part of the LaMaze Psycho-prophylactic Method of childbirth. This method requires a serious com- mitment on the part of those participat- ing. Both husbands and wives must at- tend a series of classes that include lectures, films, question and answer per- iods, instruction in controlled breathing and rekaxation techniques, and discus- sions on pregnancy and childbirth re- lated topics. This advanced instruction and training serve to prepare the couples for the events that occur during preg- nancy, labor, and delivery and enable them to function as a team during labor and delivery, with the husband supplying >, and emotional support to his wife. 5 Petitioners are prepared to offer evidence to prove their contentions, 1) that the presence of the husbands in the hospital delivery room is a well- accepted medical practice; 2) that the a -prophylactic (or prepared) child- irth methods with the lack of or lesser amounts of anaesthesia are safe and de- sirable for both mother and baby. Accordingly, petitioners attempted to have the husbands present for the de- liveries of their children but were de- nied this opportunity by defendant hos- pital's policy prohibiting the presence in the delivery room of any non-medical personnel. C. Proceedings Below On August 9, 1974, petitioners filed their complaint and motion for a temporary restraining order in the Uni- ted States District Court for the Nor- thern District of Indiana, Hammond Di- vision. A hearing on the motion for a temporary restraining order was held on August 20, 1974. At this hearing defendants filed a motion to dismiss the complaint and to dismiss the petition for a temporary restraining order. On September 10, 1974, District Court Judge Allen Sharp entered an order dismiss the complaint accompanied by a memoran opinion in which con- cluded that the petitioners lacked stancing to sue. 6 Petitioners filed a notice of ap- peal to the Seventh Circuit Court of Appeals on October 9, 1974. Oral argu- ment was heard on April 14, 1975. On September 26, 1975, the Seventh Circuit affirmed the lower court's dismissal of the action in an opinion by Judge (now Justice) Stevens which dealt with the merits of the case. [ October 10, 1975, petitioners filed a petition for rehearing and — gestion for en banc determination. s petition was denied by the Seventh Cir- ot in an order entered on November 21, 75. REASONS FOR ALLOWANCE OF THE WRIT The Seventh Circuit has decided a constitutional issue of first impres- sion and grave importance without the benefit of either an evidentiary hearing or a full record. The constitutional issues invoived in this case had not been considered by the lower court which dismissed the case for lack of standing. The dismissal, just two weeks after the action was filed, has deprived the pe- titioners of the opportunity to present relevant and necessary evidence for a proper determination of the merits. It is a well-settled principle that a court of appeals will not consider on appeal the merits of an issue on which the district court has not ruled. Hor- mel v. Helvering, 312 U.S. 552 (194T). Reviewing a decision of the Board of — 7 Tax Appeals, this Court discussed the correctness of an appellant court's de- ciding issues not raised in the lower court stating: Ordinarily an appellate court does not give con- sideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that par- ties may have the opportun- ity to otter all a evidence they believe relevant to the issues which the trial tri- bunal Is alone competent to decide; it is Sauatis essen- n order that litigants may not be surprised on ap- eal by final decision there of issues upon which the have had no opportunity to introduce evidence. Id. at 556 (emphasis added). The Court went on to state that the rules of prac- tice and procedure are devised to pro- mote the ends of justice, not to defeat them. Id. at 557. In essence, this age rule has been esteblished to al- ow the litigants an opportunity to pre- sent the issues at the trial level ac- companied by appropriate evidence. The scope of review problem gener- ally arises in cases where an issue is 8 presented for the first time on appeal, even though there has been a trial in the lower court on other issues. Such was the situation in Hormel and the principle set forth has been subsequent- ly followed in several circuits. Equal Employment Opportunity Commission v. Stonderd rarRe and Axle Company, Inc., . (5th Cir. LSE K-2 Ski Company v. Head Ski Company, 506 F.2d G71 (th Cir. 1974) Eureka-Carlisle Com- any v. Rottman, 398 F.2d I015 (Sth Cir. Foes) In Eureka, the court stated, ordinarily an appellate court will not consider a question of law or fact which was not presented to, considered, or decided by the trial court. Id. at 1610. In addition, courts have held that a court of appeals does not sit as a fact finder, Thomas v. Shaw, 497 F.2d 123 (5th Cir. 19/74); and that a court of appeals does not sit to ren- der advisory opinions or decisions on abstract legal propositions, Swann v. Charlotte-Mecklenburg Board of Educa- tion, 489 F.2d 966 Crh Cir. 1974). Despite the fact that these cases represent situations in which a trial was held, the rationale for not con- sidering a new issue on appeal is equ- ally applicable to situations where a trial has not yet been held, as in the present case. A court of appeals should not consider an issue that has not been presented to a trial court, for whatever 9 reason, because it deprives the parties of the opportunity to present relevant evidence that could have a profound im- pact on the outcome. In Borden's Farm Products Company v. Baldwin, 293 U.S. 194 (1934), on an appeal from a three-judge district court which dismissed, on a motion equivalent to a demurrer, a bill brought to enjoin enforcement of a provision of the New York Agriculture and Markets Law, this Court remanded the case for a trial on the merits. In declining to decide the underlying substantive issues, this court stated: ~ The factual basis of this contention is disputed and there are no findings dis- closing it. ... For the present purpose, it is suf- ficient to say that these arguments . .. lie outside the range of judicial notice . . But the case is not before us upon evidence, or upon determination of fact based on evidence, as the complaint was dismissed solely in the view that it failed to state a cause of action and the motion for injunction accordingly fell without findings being made . . . . the decision of this appeal should not turn on other facts which are the proper subjects of evidence 10 and of determinations of fact by the trial court. Id. at 208 (emphasis added). Consider- | ing the circumstances of the Borden case in light of the then recent expansion of governmental regulation and the conse- quent increase in allegations of consti- tutional violations, this Court referred to a prior decision, Hammond v. Schappi Bus Line, 275 U.S. 164, 170-72 (15275 and stated: ll The principles set forth in Borden are directly applicable to the case at bar. A dismissal before a trial on the merits in this instance prevents the introduction of evidence on novel and important constitutional questions. The decision by the court of appeals on the constitutional merits was made without the benefit of the identification and clarification of the issues by the trial court. Petitioners in this case have been denied the opportunity to present important evidence that is essential to We held that before the ques- support the allegations of constitutional tions of constitutional law, violations set forth in the complaint. both novel and far-reaching These plaintiffs are pe got to offer importance, were passed upon and indeed, are entitled to present such by this court, "the facts evidence-1 Judge Sprecher referred to essential to their decision should be definitely found by the lower courts upon adequate evidence." lplaintiffs are prepared to offer evidence concerning: (1) the ex- tent to which the psychoprophylactic method of childbirth is an accepted and commonly practiced medical procedure; (2) the alternative precautions against infection or invasion of privacy that might easily be employed by the Hospital short of a comple’~e ban on fathers in the delivery room; (3) the uniqueness of psy- choprophylactic childbirth techniques when compared with other more traditional medical procedures; (4) the efficacy of the hospital's claims of lack of changing facilities and unavoidable privacy inva- sions in a hospital — ‘s) — in light of the physical plant; (5) the nla a acceptance of the LaMaze technique by physicians practicing at Porter Memorial 293 U.S. at 123. Hospital itself; (6) in Judge Sprecher's 293 U.S. at 210. The ‘concurring opinion of Justices Stone and Cardozo stated the same principle in a similar manner: We are in accord with the view that it is inexpedient to determine grave consti- tutional questions upon a ; demurrer to a complaint, or upon equivalent motion, if there is a reasonable like- lihood that the production of evidence will make the 12 the impropriety of the Seventh Circuit's decision on the merits when he stated that the majority “has bowed to the ex- pertise of the medical profession without the benefit of an evidentiary hearing" on the basis of a state interest that "is so noncompelling as to be virtually non- existent." Fitzgerald v. Porter Memorial Hospital, 523 Fog 716, 722, 724 (7th Cir. 197 " 5) (Sprecher, dissenting). In the case at bar, there exists a genuine dispute as to the underlying facts which must first be settled by the trial court before a proper determination of the con- stitutional issues can be made. The Eighth Circui. Court of Appeals, in a suit by an environmental organization and individuals to enjoin a development pro- ject until an impact statement had been filed, refused to consider the merits when the appeal was from a motion to dis- miss for lack of standing. Coalition for the Environment v. Volpe, 504 F.2d 156 (8th Cir. 1974). The Yoipe court held that the only issue presented to the re- viewing court for determination was that of standing. Because of the trial court's decision on the standing issue, it simply did not reach any of the other issues and therefore, it is not proper for the reviewing court to decide issues not treated by the trial court. Id. words, "the magnitude of the importance of the presence of the expectant father." Fitzgerald v. Porter Memorial Hospital, ; ; t r. (Sprecher, J., dissenting). 13 We treat arguments con- cerning the substantive al- legations only as they re- late to the question of standing and do not reach the issues: .. . These questions are best dealt with in the first instance by the trial court. Id. at 162. The situation in Volpe is identical to the present case. Because of the adverse ruling on the standing issue, petitioners were not allowed to present their case. Upon review, the only question that should have been considered by the,Seventh Circuit was that of standing. Once the court had determined that standing did exist, the case should have been remanded, as in Volpe, to the district court for a trial on the merits. 2The only issue plaintiffs raised on the appeal to the Seventh Cir- cuit was that of standing. (See p. l of Brief of Appellants filed In the Seventh Circuit.) Plaintiffs' brief dealt with the merits of the constitu- tional question only to the extent that it was necessary to establish that the rights asserted were arguably within the zone of interests protected to satisfy the standing requirements as set forth in Association of Data Pro- ceasing Service organization v. Camp, 14 Cases dealing with interlocutory appeals present the same basic issue. The general rule is that where an inter- locutory appeal is taken, the appellate court will not go any further into the merits of the case than is necessary to decide the matter upon appeal. 9 Moore's Federal Procedure, §110.25 1 (2d e s Court has held that upon an interlocutory order, "[i]t was not in- tended that the cause as a whole should be transferred to the appellant court." Ex Parte National Enameling and St in ompany, 301 U.S. 156 71508) The Fichth Circuli cuit has held that upon an interlocu- tory appeal it is improper to consider grave constitutional questions where there exists reasonable likelihood that further eee oo “ee help ro wie the issues. Board of Managers of Ar- kansas Training School for Boys v. Geor policy arguments that an appellant court should not decide issues that have not been presented to a trial court are equ- ally applicable whether there has been a trial on other issues or whether there has been no trial at all. Where the in- troduction of evidence would be helpful to clarify the issues, the appellate court should not decide the merits with- out the benefit of a record below. The general rule in both instances is not without exception. This Court has held that where the point is so clear that nothing would be gained by remanding the issue even rn the opinion does not decide it, effective 15 judicial administration requires that the matter be disposed of on appeal. Levin v. Mississippi River Fuel Corpor- ation, ere no Issue remains to be solved, and it is clear under prior decisions and the un- disputed facts of the case what the out- come will be, there is no reason not to dispose of the case. Turner v. City of Memphis, 369 U.S. 350, 353 (1961). Pe- titioners do not — against expedi- tious disposition of cases when it is consistent with proper judicial admin- istration. Petitioners do contend, how- ever, that the current case simply does not fit this exception. This is a case of first impression and grave constitu- tional ortance. It would be a seri- ous mistake for the appellate court to decide the merits of the constitutional questions without the benefit of a hear- ing -- especially when a balancing of competing interests is necessary. The constitutional issue in the case at bar is not clear; it has not been resolved by prior decisions; and essential to its proper determination is a resolution of the dispute as to the underlying facts by a trial court. For these reasons, e Levin - Turner exception does i.ot apply to the present case. Referring to the exception, the Second Circuit stated, "[s]Juch an exception serves the obvious interest of economy of litiga- tion, . .. [but] it is the rare case that contains no triable issue of fact." Hurwitz v. Directors Guild of American Tneerporate. 364 F.2d 67, 70 (2d Cir. ) cert. denied, 385 U.S. 971 (1966). The present Case is not such a rare 16 situation. Finally, this Court has before it now a case, Wulff v. Singleton, 508 F.2d 1211 (8th Cir. 1975) cert. granted, 95 S.Ct. 2655 (1975), which, a¥thoush it includes a ee a a court question, expressly presents the question, "Whether the Court of Appeals acted in excess of its jurisdiction when it proceeded to determine on the merits the constitution- ality of [a Missouri statute]." 95 S.Ct. at 2655. Im Wulff, the Eighth Circuit Court of Appeals overruled the three- judge district court's dismissal for lack of standing, and then proceeded to decide the constitutional issues. Referring to the appropriateness of deciding the sub- stantive questions, the court stated that, "(this question is not without its diffi- culty. There is little direct authority for the propriety of our reaching the merits." 508 F.2d at 1214. Proceeding to the merits, the court relied primarily on the policy arguments of judicial econ- omy and the proposition that a court of appeals has the power "to do what plainly ought to be done."" Mercury Motor Express, Inc. v. Brinke, 475 F.2d TOBe- LOSI CoEh Cir. 1973). The Wulff court held that the statute in question was obviously unconstitutional, therefore not requiring a determination by a three-judge court.3. 3What was so obvious to the Eighth Circuit Court of Appeals, raised considerable doubt in the Sixth Circuit when the identical issue was presented. Roe v. Ferguson, 515 F.?d 279 (6th Cir. 17 By granting certiorari, this Court now has the opportunity to decide whether or not the Court of Appeals exceeded its jurisdiction by ruling on the merits. 1975). Im Roe v. Ferguson, a statute wo ok to the one hetd invalid in Wulff was challenged. The district court found that the Ohio statute was in con- flict with the Social Security Act and, therefore, invalid. Reversing the lower court's holding, the Sixth Circuit Court of appeals remanded the case for a con- vening of a three-judge court to deter- mine the constitutional issues. The court stated, [W]e find ourselves, therefore, in disagreement with the Eighth Circuit's ruling in Wulff v. Single- ton [citation suittedy" that the unconstitutionality of this type of statute is so “obvious and patent" as to obviate the need for a three- judge court. Id. at 284. The fact that these two cir- cuits disagree on the clearness of the constitutional issue suggests the in- herent danger of expanding the circuit courts' jurisdiction over issues that have not yet been presented at the trial level where classification of the ques- tion within the particular context would assist their proper determination. This disagreement points out the need for an evidentiary hearing. 18 Essentially the same issue is an . sented in the case at bar, with the exception that the three-judge court provision is not involved. The general rule that appellate courts will not consider issues not presented to the lower courts is applicable because: 1) the case presents a grave constitu- tional question of first impression; and 2) there exists a genuine dispute as to the material facts. It would be unfair to the parties involved to de- prive them of an opportunity to present evidence in support of their claims. Petitioners seek to have the Seventh Circuit Court of Appeals decision on the merits of the constitutional claims reversed and remanded to the district court for an evidentiary hearing. — APPENDIX CONCLUSION For the foregoing reasons, a Writ of Certiorari should be issued to review the judgment and order of the Seventh Circuit. uaa? Respectfully submitted, IVAN E. BODENSTEINER Attorney for Plaintiffs Indiana Civil Liberties Union 606 Indiana Avenue Valparaiso, Indiana 46383 SS, A-1 3n the Gnited States Court of Appeals For the Seventh Circuit No. 74-1949 Evetyn Frrzceratp, Bruce FirzceraLp, DesraA GREENER, MicuageL Greenrr, Gaw AtHaA, Karen Scott, Grorrrey Scott, Barsara Srarrerp, CHARLES STAFFELD, DANA Arnett, CHARLES ARNETT, PAULETTE THOMAS, THOMAS THomas, Henry Farac, Donna Farac, ELEANoR KrrKLaNp, Atrrep KirKLAND, Susan Cuusss, Bruce Cuvusss; and on behalf of all other persons similarly situated, Plaintiff s-Appellants vs. Porter Memoria HospitaL; ArtHur S. Matasto, Admin- istrator of Porter Memorial Hospital; Boarp or TrusTEEs oF Porter Memoria HosprraL; Maurice Mason; James W. Cuester; Warren H. Canricut; James J. Cranpat, indi- vidually and in their capacities as members of the Board. Defendants-Appellees On Appeal from the United States District Court for the Northern District of Indiana (Hammond Division) No. 74-204 H ALLEN SHarp, Judge. LRoJeD Aprit 14, 1975 — Decipep SerremsBer 26, 1975 Before Castie, Senior Circuit Judge, Stevens and SprecHer, Circuit Judges. Stevens, Circuit Judge. This appeal presents the ques- tion whether a mother, her husband, or their doctor has a 74-1949 A-2 constitutional right to have the father present during the birth of a child. Porter Memorial Hospital, a public hospital, maintains and enforces a policy “prohibiting the presence of any person or persons in the Delivery Rooms located in the Obstetrics Ward other than members of the Medical Staff and Nursing Staff.” Plaintiffs are married couples who have completed training courses in the psychoprophylactic or LaMaze method of childbirth.? At the time of the filing of the complaint herein, each couple but one was either expecting the birth of a child or had recently given birth at Porter Memorial Hospital.* In each case, the Hospital had either indicated that, pursuant to the above-quoted policy, it would not permit the husband to be present in the delivery room or actually prevented the husband from participating in the delivery. Plaintiffs brought suit against the Hospital, the members of the board of direc- tors and the Hospital administrator under 42 U.S.C. § 1983* and the First, Fourth, Ninth, and Fourteenth Amendments to the Constitution,’ on behalf of themselves and other similarly-situated persons, challenging the con- 1 Affidavit of Administrator Arthur S. Malasto, see n. 6, infra. ? As plaintiffs lained in their brief to this court, method requires a serious commitment on the part of those participati Husbands and wives must attend a series of classes tion and training serve to the take place during pregnancy, and delivery, and enable them to function as a team during labor and delivery, with the husband supplying physical and emotional support to his wife.” 3 Al all of the plaintiffs have had their children, the case is not moot. In , iy ~ FA US. 113, 125, the Supreme oat See its 7 ides ac c justi- yw ag oy of rte mar . It y could be ‘capable of ‘ under color of any statute, ordinance, regula- oe of any State or Territory, subjects, or —~_ay-y - 7-8 Pe A tates or other fos - - of = immunities secured e Constitution eee PTT bet linble in an action at law, suit pag gr Se Juriediction wes claimed under 38 USC. § 1965(3). There is no dis- : | 4 ee een Dente A-3 74-1949 stitutionality of the Hospital’s policy and seeking in- junctive and declaratory relief and damages. The district court held a hearing on plaintiffs’ applica- tion for a temporary restraining order at which the plain- tiffs introduced the testimony of one physician and the affidavits and letters of others explaining the LaMaze birth method and its benefits for both mother and child. Defen- dants countered with the affidavit of defendant Malasto, Hospital Administrator, wherein he explained that the Hospital had recently considered, but rejected, a change in the exclusionary policy and set forth reasons for con- tinuing the rule.’ Motions to dismiss both the complaint for failure to state a claim and the petition for a tempora- ry restraining order were filed. On September 10, 1974, the district court, in an un- reported memorandum opinion and order granted the mo- tion to dismiss.’ No ruling was rendered on the request * Malasto stated:~ aed ee nS Ge male end masiationn of Fuster Mamestel Hee- one p presence any person or persons the Deli Rooms ted in the Obstetrics Ward other than members the Medical Staff and N Staff. That on June y Kang My By ef , CO eow te pelle eine the corridor the said three (3) delivery rooms. That the said corridor is off-limits to all persons other than attending physi- cians and members of the Nursing Staff and obstetrics patients. “A diagram showing the corridor and its rooms is at- tached hereto and made a part hereof and labeled bit 1. are facili it had jurisdiction under 28 U.S.C. § 1343(3). Fe is a “m cor- poration” within the meaning of Monroe v. Pape, US. 167, and 74-1949 A-4 for certification of the suit as a class action. The court found that the Hospital was not denying the plaintiffs access to its facilities or totally prohibiting a medically approved operation and that plaintiffs did not have stand- ing to assert the rights of their physicians. From this order plaintiffs appeal.’ I. Plaintiffs characterize the right they assert as an aspect of the “right of marital privacy.” The source of its con- stitutional protection is either the so-called penumbra of various provisions of the Bill of Rights’ or the word “liberty” in the Due Process Clause of the Fourteenth Amendment.’® It is somewhat unfortunate that claims of this kind tend to be classified as assertions of a right to privacy. For t (Continued) = of Kenosha v. Bruno, 412 US. 507, and, thus, immune to suit er § 1983. Clearly the individual defendants could be sued under that provision, however, and it Ly the action could be maintained against the Hospital directly er the Fourteenth Amendment, via 28 USC. 1331. See Calvin v. Conlisk, No. 74-1289, at 11 (7th Cir., June 30, 1975); H v. Bd. of Junior College District No. 515, No. 74-1915, at .... (7th Cir., Sept. ...., 1975). ® Defendants argue initially that the district court order must be affirmed because plaintiffs have failed to allege an essential precondition to the right they seek to assert, “the right to have fathers present at attending physician.” (Complaint, para. X.5). As defendants point out, nowhere in the complaint do plaintiffs specifically allege that their ror ag had, or would have, consented but for the policy of the tal, to the presence of the fathers in the delivery room. Thus, they argue that it would be inappropriate for us to reach the consti- tutional question presented We think a fair of the complaint indicates, however, that it is the policy of Porter Memorial and not any hesitancy on Hospital the part of plaintiffs’ doctors which has prevented the husbands from being t in the delivery room. In su phs 18(c) and (d) i is alleged that plaintiffs Bruce Fitzgerald and chael Greener were sO ex * children. Moreover, in su ph 18(e), plaintiffs allege that the Obstetrical Committee of tal voted t in birth of his child. Wille Gis sesemmeniation wes teter selected ty the staff and Board of Trustees, it is clear that there were i- who would have delivered the Scott baby at Porter the father’s . Thus, we conclude that the con- squarely presented by this A-5 74-1949 the group of cases that lend support to plaintiffs’ position do not rest on the same privacy concept that Brandeis and Warren identified in their article in the 1890 Edition of the Harvard Law Review." These cases do not deal with the individual’s interest in protection from unwar- ranted public attention, comment, or exploitation. They deal, rather, with the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny. The Court has referred to such decisions as implicating “basic values,”"* as being “funda- mental,”"* and as being dignified by history and tradi- tion."* The character of the Court’s language in these cases brings to mind the origins of the American heritage of freedom — the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable. Guided on & Brandeis, “The Right to Privacy”, 4 Harv. L. Rev. 193 12 “In my view, the proper constitutional in this whether this Connecticut statute infringes a.’ De Process Clause of the Fourteenth Amendment because the enactment violates basic values ‘implicit in the concept of ordered liberty,’ Palko v. Con- necticut, 302 U.S. 319, 325.” Griswold v. Connecticut, 381 US. 479, 500 (Harlan, J., concurring). 18“These decisions make it clear that only personal ts that be deemed ‘fundamental’ or ‘implicit > the ~t, of cutuet liberty’ Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included = this guarantee of personal privacy.” Roe v. Wade, 410 U.S. 113, “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional 14 “We deal with a right of oy ae than the Bill of Rights— Griswold v. Connecticut, 381 US. 479, 486. “Judici -restraint will not, I be bro bout the ‘due Ea .' area i 4 Fe a 2 ton formula advanced my BLACK, and now in part espoused ART. eee ne sahteved i Gils aves, os in played in establishing 479, 501 (Harlan, J., concurring). 18 “Tf the right of pri means it is the t chbush uupend & chaie, ts ts Ole tab eco eon ue intrusion into matters so fundamentally a person as the 74-1949 A-6 by history, our tradition of respect for the dignity of individual choice in matters of conscience and the re- straints implicit in the federal system, federal judges have accepted the responsibility for recognition and pro- tection of these rights in appropriate cases. But can it fairly be said that this is such a case? As we understand plaintiffs’ argument, there are three aspects of their asserted right that make it worthy of constitutional protection. It arises out of the marital rela- tionship; the birth of a child is an extremely lnportant event; in their judgment, and in the judgment of a respectable segment of the medical profession, the LaMaze procedure is safe and, indeed, a more beneficial obstetrical procedure than traditional practices which deny the father the right to be present when the delivery takes place in a hospital. Neither individually nor collectively do these facts justify judicial review of the rule which has been adopted by the professional staff of the defendant hos- pital. Although plaintiffs’ claim is advanced only in the name of “marital privacy,” we are persuaded that, if valid, it could be asserted with equal force by unwed parents and perhaps also by other persons about to undergo serious medical procedures.” Respect for the private aspects of the institution of marriage were heavily emphasized in Justice Douglas’ opinion for the Court in Griswold v. Cou- necticut, 381 U.S. 479. But neither the conception that produced Griswold, nor its progeny, is narrowly limited to marital rights. For Justice Douglas drew support for the Court’s holdings from its earlier recognition of the parents’ right to educate their children in schools of their choice,’ the right to study the German language,** and the right to select one’s associates.'’ And the Griswold holding 16If the right plaintiffs assert does exist, surely it is not confined to the husband and wife. An unwed mother may have the same need for emotional support, and the same interest in a superior medical pro- cedure, as a wife. Indeed, any patient about to undergo serious surgery might also assert a constitutionally interest in the companion- ship of his choice during the time of stress, or, indeed, in the surgical procedure of his choice. Plaintiffs make no such expansive claim, but a fair analysis of their position requires concern about the consequences of adopting the rule they espouse. 17 Pierce v. Society of Sisters, 268 US. 510. 18 Meyer v. Nebraska, 262 US. 390. WNA-ACP. v. Alabama, 357 US. 449, 462. A-7 74-1949 that husband and wife may decide whether or not to use contraceptives has subsequently been extended to accord a comparable right to unmarried individuals.” Finally, the constitutio rotection given to the pregnant wom- an’s right to decide whether or not to bear her child is clearly not dependent on respect for the institution of marriage; it respects the individual’s interest in a decision which, by any standard, is certainly of fundamental im- portance and implicates basic values. Plaintiffs ask us to hold that their decision to use the LaMaze method of child birth is entitled to he respect and may not be frustrated by a public hospital’s rule. The birth of a child is an event of unequalled importance in the lives of most married couples. But deciding the question whether the child shall be born is of a different magnitude from deciding where, by whom, and by what method he or she shall be delivered. In its medical aspects, the obstetrical procedure is comparable to other serious hospital procedures. We are not persuaded that the mar- ried partners’ special interest in their child gives them any greater right to determine the procedure to be fol- lowed at birth tha: that possessed by other individuals in need of extraordinary medical assistance. Plaintiffs do not contend that they have a right to have the husband present without the consent of the attending physician. Implicitly, therefore, they acknowledge that their asserted right is subordinate to the dictates of sound medical practice. Having implicitly admitted that individ- ual doctors may find valid medical reasons for excluding the father in individual cases, they must equally recognize that hospitals may also assume that the number of cases in which exclusion is appropriate is sufficiently large to justify the development of facilities and procedures in which the presente of the husband would be objection- able.** More importantly, the valid medical reasons for exclusion in individual cases requires us equally to recog- nize that the dispute within the medical profession as to 20 Eisenstadt v. Baird, 405 US. 438. 21 Administrator Malasto’s affidavit states that permitting fathers to be in the deli room given the physical set-up at 4 NE ayy 4% St OA - 7 A 74-1949 A-8 the propriety and safety of permitting the husband to be present during the routine birth” is not one that should be resolved by substituting our judgment for the profes- sional judgment of the staff of defendant hospital. We hold that the so-called right of marital privacy does not include the right of either spouse to have the husband present in the delivery room of a public hospital which, for medical reasons, has adopted a rule requiring his ex- clusion. 7 Plaintiffs also argue that the hospital rule improperly restricts the rights of their physicians to practice medi- cine.” They rely on Doe v. Bolton, 410 U.S. 179, and other 22 Compare J. Morton, “Fathers in the Delivery Room —an - tion Standpoint,” Topics 103 (Jan. 1966); S. Olds & L. Witt, “New Man in the Room —the Father,” Today’s Health 52 (Oct. 1970); N. Sehgal, Potential for Problems Husbands are in the Delivery Room,” Resident and Staff Physician 33 (March, 1973); C. Shu, Husband-Father in Delivery Room,” Hospitals, JAHA. 90 (Sept. 17, 1973), with e.g., Int’l Childbirth Education Association, “Hus- bands in the Delivery Room” (1971) It ay all ies are in accord Lg gm 7 | — in refusing to change x plain mn FR A BP in their ef in Support of into delivery room uniform.” oe 8 > Se See Fee mote dispute, rather than oS a ution t te, which concerns us, no pur- pose w be served by remanding the case to the district court for a hearing. 0 The Cisteics court 26 net seach Gis contention, Oe 8 ue Se that the not possess requisite standing assert right of absent doctors. The district court relied on the fact that Barrows v. Jackson, 346 US. 249. Recent decisions of the Court sug- gest, however, that whenever one lationship asserts injury to himself and to the ts the other party to such a selationshi he may assert the rights of the absent partner. As the Court i in Griswold v. Connecticut, 381 US. 479, 481, “The ts of husband and wife, pressed here, are likely to be dined adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.” Ae9 74-1949 cases invalidati hospital rules which piaced greater restrictions on the performance of abortions than on comparable medical procedures. Those rules impaired the exercise of a right which the Court had held entitled to constitutional protection. We have rejected the claim that the right asserted by ——- in this case is entitled to such protection, and there is no claim that the hospital’s exclusionary rule discriminates against obstetrical proce- dures as opposed to other operations. The argument advanced by plaintiffs when standing in their doctors’ shoes is no stronger than their own. We are moved, but not persuaded, by their own interest in companionship and moral support; we are unmoved, and certainly unper- suaded, by the argument that the rule is an unconstitu- tional impairment of the doctors’ right to practice medi- cine free of unreasonable governmental restraint. Since, as we have already noted, there is a difference of opinion within the profession as to the desirability of such a rule, this is a classie example of the kind of situation in which individual hospitals should be permitted to make individual choices, rather than having an inflexible rule imposed upon all hospitals in the nation by federal judicial decision. AFFIRMED. Sprecuer, Circuit Judge, dissenting. Although | concur in Judge Stevens’ disposition of the jurisdictional, mootness and standing issues and I have no quarrel with his general discussion of the right to privacy, | dissent completely from his conclusion that the right to privacy does not include the right of expectant parents to have the male present with the female in the delivery room of a public hospital in cases where the attending physician has con- sented to that procedure. Cf. sueumee: ©. Bad, GS US, G0, 00-00, Friendship Medicat Center, . v. i of Health, supra n. 11, at 1145-1148. See gen- — RF Yale 123. 399 (1962) ;; Comment, “dranding , a . os to Constitutional Jus Tertii,” 88 Harv. L. Rev. 423 (1974). : : f f i 74-1949 A-10 Although the plaintiffs pray on appeal “that this court should reverse on the standing issue and remand the case to the district court for a trial on the merits,” Judge Stevens has bowed to the expertise of the medical profes- sion without the benefit of an evidentiary hearing. Never- theless, the record before us includes uncontradicted evi- dence that under the LaMaze method of childbirth “in the more than 45,000 cases collected in . . . surveys, there was not one infection traceable to the practice and not one malpractice suit.” The plaintiffs also submitted the affidavit of a Clinical Professor of Obstetrics and Gynecology at the University of Chicago School of Medicine who stated that he has delivered approximately one thousand babies in the past four years with the fathers present in the delivery room and it is his opinion: {1} That... the presence of the father during the delivery of the infant is beneficial to the mother, the father, the infant and himself; {2} That the father’s presence in the delivery room has an ye vogy A stabilizing effect on the mother, thereby aiding her in the second stage of labor (delivery) ; {3] That the mother’s cooperation during the second stage of labor helps to enable her to deliver the baby sooner and more safely because she will be calmer, and thus able to bear down more intensively, thus shortening this stage of labor; (4) That because of this shortened labor, the new- born will have increased probability of a healthy birth and a decreased probability of hypoxia (insufficient oxygen) ; {5} That the father’s presence in the delivery room does not create a need for additional personnel in the delivery room, and that in fact, no greater number of hospital personnel are in attendance when the father is present than when he is not; {6] That there have been no serious incidents at- tributable to the presence of the father in the delivery room in my experience; (7] That I have found no evidence in current obstetrical literature indicating that the presence of ene oe a a — = A-11 74-1949 husbands in the delivery room (assuming proper safeguards are taken) would be hazardous and in fact the most comprehensive study to date on the subject, published by the International Childbirth Education Association in 1968, reported that out of 45,050 husband attended deliveries there were no cases of puerperal infection traceable to the practice. The cases establishing fundamental familial and Pe creative rights are pertinent: Meyer v. Nebraska, 262 U.S. 390 (1923) (parents have right that children study German language) ; Pierce v. Socicty of Sisters, 268 U.S. 510 (1925) (parents have right to direct education of children) ; Skin- ner v. Oklahoma, 316 US. 535 (1942) (person has right not to be compulsorily sterilized); Griswold v. Uonnec- ticut, 381 U.S. 479 (1965) (married persons have right to use contraceptives); Loving v. Virginia, 388 U.S. 1 (1967) (black and white persons have right to marry each other); Eisenstadt v. Baird, 405 U.S. 438 (1972) (un- married persons have right to use contraceptives) ; Stanley v. /llinois, 405 U.S. 645 (1972) (unmarried father has custodial rights to his child); Roe v. Wade, 410 U.S. 113 and Doe v. Bolton, 410 U.S. 179 (1973) (person has right to procure abortion at certain times and under certain circumstances). Mr. Justice Cardozo believed that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body... .” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914). Consequently, the informed consent of the patient is necessary before the doctor deals with the patient’s body. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), cert. dented, 409 U.S. 1064 (1972). In the present case the patients have expressed their desire for a | anpuner form of childbirth which is safe and sanitary for mother and child and imposes a minimum burden on the hospital. The —- doctors are willing to perform childbirth in the desired way and in fact the patients’ claim is conditioned upon the consent of the attending physician, yet the patients’ desires as to the manner in which they wish their bodies dealt with has been frustrated by rejection of the method by “the Medical Staff” of the defendant hospital. 74-1949 A-12 This problem is the exact one confronted by Mr. Justice Douglas in his concurring opinion in Doe v. Bolton, 410 U.S. 179 at 219-20: The right of privacy has no more conspicvous place than in the physician-patient relationship unless it be in the priest-penitent relationship. It is one thing for a patient to agree that her hysician may consult with another physician about er case. It is quite a different matter for the State compulsorily to impose on that physician-patient rela- tionship another layer or, as in this case, still a third layer of physicians. The right of privacy—the right to care for one’s health and person and to seek out a physician of one’s own choice protected by the Four- teenth Amendment—becomes only a matter of theory, not a reality, when a multiple-physician-approval sys- tem is mandated by the State. The State licenses a physician. If he is derelict or faithless, the procedures available to punish him or to deprive him of his license are well known... . The good-faith decision of the patient’s chosen physi- cian is overridden and the final decision passed on to others in whose seiection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which that entails. The right to seek advice on one’s health and the right to place reliance on the physician of one’s choice are basic to Fourteenth endment values. We deal with fundamental rights and liberties, which, . . . ean be contained or controlled only by discretely drawn legislation that preserves the “liberty” and a only those phases of the problem of com- pelling legislative concern. o > o To protect the woman’s right of privacy ... the control must be through the physician of her choice and the standards set for his performance. Although it is true that the prohibition of the husband from the delivery room is not a deprivation of the magni- tude of the prohibition of an abortion neither is the state’s interest in the former of the same magnitude. In A-13 74-1949 fact, it is so non-compelling as to be virtually non- existent: the hospital fears that the participating husband may catch a glimpse of other women in labor and that it does not have facilities for him to don and doff his hospital gown. . Furthermore, the magnitude of the importance of the pee of the —— father should not necessarily downgraded. e moment of delivery is a crucial psychological milestone in the life of the mother. It is probably equally crucial to those fathers who are allowed to b» present. In any event, to deny the right of her mate s presence when she desires it at a critical time is unnecessarily, and I believe unconstitutionally, cruel to the expectant mother. In United States v. Vuitch, 402 U.S. 62 (1971), Mr. Justice Black said for the Court at 72: Certainly this construction ape age abortions for mental health reasons} accords with the general usage and modern understanding of the word “health,” which includes psychological as well as physical well- being. Indeed Webster’s Dictionary, in accord with that common usage, properly defines health as the “[s]tate of being ... sound in body [or] mind.” Viewed in this hight, the term “health” presents no problem of vagueness. Indeed, whether a particular operation is necessary for a patient’s physical or mental health is a judgment that ag = emer are obvi- ously called upon to make routinely whenever surgery is considered. I would reverse and remand for a trial] on the merits. A true Copy: Teste: EEE EEE EEE EEE EEE EEE EEE EEE TEETH EEE EEE HEHEHE EEE HERE EERE ED Clerk of the Untted States Court of Appeals for the Seventh Circuit USCA 4158—The Scheffer Press, Inc., Chicago, Dlinois—9-26-75—250 A-14 UNITED STATES COURT OF APPEALS For The Seventh Circuit Chicago, Illinois 60604 November 21, 1975 BEFORE THOMAS E. FAIRCHILD, Chief Judge Hon. TIUTHER M. SWYGERT, Circuit judge* Hon. WALTER J. CUMMINGS, Circuit ~~ ‘ WILBUR F. PELL, JR., Circuit Judge Hon, JOHN PAUL STEVENS, Circuit Judge . "ROBERT A. SPRECHER, Circuit Judge Hon. PHILIP W. TONE, Circuit Judge WILLIAM J. BAUER, Circuit Judge EVELYN FITZGERALD, et al., ) Appeal from Plaintiffs-Appellees ) the United ) States Dis- No. 74-1949 vs. ) trict Court PORTER MEMORIAL HOSPITAL, ) for the Nor- et al., ) thern Dis- Defendants-Appellees.) trict of Indiana, Hammond Di- vision. (74-204 H) ORDER On consideration of the suggestion that the above-entitled cause be reheard en banc, a majority of the active members of the Court having voted to deny a re- hearing en banc, IT IS ORDERED that the suggestion that the above-entitled cause be reheard en banc be, and the same is hereby, DENIED. ¥Judges Swygert, Pell and Sprecher voted to grant the rehearing en banc. os A-15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION ) EVELYN FITZGERALD, ET AL. Vv. CIVIL NUMBER ) ) ) ) H 74-204 PORTER MEMORIAL HOSPITAL, ) ET AL. ) ) ORDER Defendants’ Motion to Dismiss Com- plaint and Dismiss Petition for Tempor- ary Restraining Order is GRANTED. ENTER: September 10, 1974 f8/ Allen Sharp udge, U. S. District Court MEMORANDUM The court assumes jurisdiction pur- suant to 28 U.S.C. §1343(3) and (4). Plaintiffs seek to enjoin the en- forcement of a policy of the Porter Mem- orial Hospital, a tax supported institu- tion, and to have the policy declared invalid. The policy in question excludes fathers from the delivery room during the birth of their children. No licensed physicians have been joined as plaintiffs in this action. The complaint contains no allegation that any of the licensed physicians with staff privileges at Por- ter Memorial Hospital would consent to A-16 the presence of a father in the hospital delivery room during childbirth. Plain- tiffs allege that this policy is viola- tive of certain of their constitutional rights including the right to privacy and the right to marital privacy as estab- lished in Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). Plaintiffs allege that they do have standing to assert the right to privacy as defined in the cases cited above and in the case of Eisenstadt v. | Baird, 405 U.S. 438 (1972). et a Plaintiffs claim standing on the basis that there is a confidential re- lationship and that in such a situation, either party has standing to raise the rights of the other when there are fun- damental rights at issue. This is al- leged under the holdings in Griswold, supra, and Eisenstadt, supra. However, the Supreme Court of the United States has held that, subject to narrow excep- tions, one may not claim standing to vindicate the rights of another. Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 241 ‘ (1953). In the instant case, unlike the fac- tual situation in Roe, supra, Doe, supra, and Hathaway v. Worchester City Hospital, 475 F.2d Tot (Ist Cir. 1973), the hospital is not denying the plaintiffs access to the facilities or the opportunity to have a certain, medically approved operation performed; but the hospital has placed a certain restriction on the personnel present during the operation. It is A-17 alleged that such restriction could cur- tail the effectiveness of a certain type of childbirth method, the LaMaze method of psychoprophylactic childbirth. Since no licensed physicians are included in this suit, and the plaintiffs have not alleged that any physician would consent to the use of the LaMaze method, the plaintiffs are seeking to assert the rights of the physician in regard to the practice of medicine. The court does not believe that the plaintiffs, in this instance, fall within the exception to the general rule which bars standing to one ~ = age to vindicate the Constitut: snal rights of a third party as stated in Barrows, supra. Any doctor, unlike the third party in Barrows, could assert his rights under the Consti- tution without difficulty. Thus, the lack of a physician as a plaintiff pre- vents the plaintiffs from asserting the physician's right with respect to the medical practice allowed by the defen- dant hospital. Thus, for the reasons given above, the court finds that the particular right sought to be asserted belongs to a physi- cian and a patient cannot assert that right as it affects the medical proce- dures in a hospital since the hospital is not denying the patient the opportunity of having an operation performed, but only placing certain restrictions upon the procedure. The defendant's motion to dismiss is therefore granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1762%3A1. Public record. Not legal advice.