Opposition Brief — Hartsell ex rel. Upton v. Fort Sanders Regional Medical Center

No. 95-1202 is eateas Cont, U.S. |

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Supreme Court of the Anited States

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October Term, 1995

IEZHJA HARTSELL, A Minor By Next Friend, JERRY

UPTON,

Petitioner,

vs.

FORT SANDERS REGIONAL MEDICAL CENTER and

RICHARD O. MANNING, M.D.,

Respondents.

On Petition for Writ of Certiorari to

the Court of Appeals for Tennessee, Eastern Section

BRIEF IN OPPOSITION FOR RESPONDENT

FORT SANDERS REGIONAL MEDICAL CENTER

RICK L. POWERS

Counsel of Record

DAN D. RHEA

ARNETT, DRAPER & HAGOOD

Attorneys for Respondent

Fort Sanders Regional

Medical Center

2300 First Tennessee Plaza

800 South Gay Street

Knoxville, Tennessee 37929

(423) 546-7000

8371

L (800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21

ervices, inc.

i

QUESTION PRESENTED FOR REVIEW

Does the Fourteenth Amendment dictate that either

Tennessee’s common law of battery or Tennessee’s statutes

regulating abortion procedures must apply to the cessation of

artificial life support measures in behalf of an unaborted newborn

infant?

ii

CORPORATE AFFILIATES OF RESPONDENT

Respondent Fort Sanders Regional Medical Center is a

wholly-owned subsidiary corporation of Fort Sanders Alliance,

a Tennessee non-profit corporation. The respondent owns no

subsidiary corporations.

TABLE OF CONTENTS

Page

Question Presented forReview .................... i

Corporate Affiliates of Respondent ................. ii

ne oS co coc on cccn nce, iii

ie ae ee iii

SN SE ke |

Statement of IE 625 S shon'd slaw sc's 5 cGu41 Fut |

a ]

Reasons for Denying the Writ ..................... 3

Other Misstatements inthe Petition ................ 6

ts ele Ci es 12

TABLE OF CITATIONS

Cases Cited:

Cruzan v. Missouri Department of Health, 497 U.S. 261,

110S. Ct. 2841, 111 L. Ed. 2d224(1990) .......... 11

DeShaney v. Winnebago County, 489 U.S. 189, 109 S. Ct.

998, 103 L. Ed. 2d249(1989) ................... 3,4

_ Ferriv. Ackerman, 444U.S.197,100S.Ct. 402, 62L. Ed.

SARIS SSS a eae a 3,4

iv

Contents

Page

Gorieb v. Fox, 274 U.S. 603, 47S. Ct.675 (1927) ..... 5,6

Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968) .. 7

Martinez v. State of Calif.,444U.S.277, 100S. Ct. 553,62

ny Es ELAS OUEE bo cdc aban vackvccduscasebeses 3,4

Roe v. Wade, 410 U.S. 113,93 S. Ct. 705, 35 L. Ed. 2d 147

(FOIE ckasnecntewerereveotorviaewessaeyirees 4,5

Statutes Cited:

Tenn. Code Ann. § 20-5-106(c) .........ccccccccess 8

POOR. COGS AMG. 6 FerG De acc ccchecwicecticvevies 2,4

Tenn. Code Ann. § 39-15-201(a)(1) ................. 5,9

Tenn. Code Ann. § 39-15-206 ..... 0... cree ceccesees 2

y RAS Eo By y Bee ret rere Peres 1,4

RP RAs REPU) cu ivns cdnnseduyeeweraharaceina |

SEAT RISE NEE: 6.0 Fei ves srad vaste sith es tassiaee 6,12

United States Constitution Cited:

FourteenthAmendment ................eeeeeeee i, 3,4,5,8

Vv

Contents

Page

Rules Cited:

WR PRIIIN Oo 5 565 soc acd vadu ly cone vu ceus 4,6

neers UU UD re Se hie 4

POE vg cee ca cocci Scien 6

Supreme Court Rule 42.2 2... 0... cece ccc cc cece 6,12

|

OPINION BELOW

Hartsellv. Fort Sanders Regional Medical Center,905 S.W.

2d 944 (Tenn. Ct. App. 1995) (Appl. Perm. ToApp. Den. 1995).

STATEMENT OF JURISDICTION

The United States Supreme Court lacks jurisdiction over the

Petition because the judgment of the Tennessee Court of

Appeals, Eastern Section, did not adjudicate any claimed rights,

privileges, or immunities under the United States Constitution or

any other federal law. 28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

The named petitioner (hereinafter “plaintiff”’) was born, at

a severely premature stage of gestational development on

September 28, 1983 at the respondent hospital, Fort Sanders

Regional Medical Center. Both prior to and immediately after

the plaintiff’s birth, the obstetrician, Richard O. Manning, M.D.

(hereinafter “Dr. Manning”) determined from objective

indications of the gestational age of the plaintiff that she was not

“viable” or capable of living on her own. Accordingly, Dr.

Manning instructed the hospital’s nursing staff to discontinue

artificial life-support measures they had instituted in plaintiff’s

behalf.

Less than an hour later, plaintiff’s efforts to continue

breathing were observed, and artificial life-support measures in

her behalf were reinstituted. The plaintiff survived, but claims

to have been injured by her experience immediately after her

birth. At no time did any physician or hospital staff member

attempt to terminate plaintiff’s mother’s pregnancy by any

means other than natural childbirth, and at no time did anyone

undertake any affirmative action to shorten plaintiff’s life

beyond the withdrawal of artificial life-support measures.

2

The plaintiff, through a “next friend,” sued Dr. Manning and

the hospital in a Tennessee state court six years later, on the

theory that the cessation of artificial life support measures after

plaintiff’s natural birth constituted medical malpractice, and/or

a battery. The plaintiff later added to her suit a theory of

Outrageous conduct, and a claimed violation of one of

Tennessee’s abortion regulation statutes, Tenn. Code Ann. § 39-

4-206 (now codified at Tenn. Code Ann. § 39-15-206), despite

the fact plaintiff did not claim, in state court, to be the victim of

an induced abortion.

The trial court dismissed plaintiff’s claims of outrageous

conduct and battery. The trial court also dismissed plaintiff’s

statutory claim derived from Tennessee’s abortion statute. The

trial court proceeded with a jury trial on plaintiff’s remaining

medical malpractice claim. The trial court directed a verdict for

the respondent hospital in the course of that trial, but ultimately,

the jury rendered a general defense verdict in behalf of Dr.

Manning, implicitly finding that Dr. Manning’s actions either

were not medical malpractice, or else caused no harm to the

plaintiff, or both.

The Tennessee Court of Appeals for the Eastern Section

affirmed. That court held that the dismissal of plaintiff’s battery

claim was proper because Dr. Manning, and the hospital staff,

had plaintiff’s mother’s consent to render medical treatment to

the newborn infant at her birth. The court further affirmed the

trial court’s dismissal of plaintiff’s statutory claim, based on

Tennessee’s abortion statute, on the ground that that statute did

not apply to unaborted, newborn infants like the plaintiff. The

Court of Appeals addressed no federal constitutional issues. The

Tennessee Supreme Court denied discretionary review of

plaintiff’s claims.

3

REASONS FOR DENYING THE WRIT

The plaintiff asserts that the due process and equal

protection clauses of the Fourteenth Amendment of the United

States Constitution compel the State of Tennessee, and its courts,

to grant the plaintiff a jury trial on either her claim of common

law battery, or else her statutory claim based on one of

Tennessee’s abortion regulations. The plaintiff cites no decision

of this Court, no decision of any federal Circuit Court, and indeed

no legal authority at all to support that interpretation of the

Fourteenth Amendment. To the contrary, the Fourteenth

Amendment does not compel states to offer common law damage

remedies for privately caused injuries at all; and when they do

offer such remedies, the Fourteenth Amendment does not

compel any particular form, characterization, classification, or

minimal elements for those remedies. See Martinez v. State of

Calif., 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481 (1980).

Likewise, the Constitution does not compel the states to

promulgate abortion regulations. If the states choose to

promulgate such regulations, the Constitution does not require

the states to include civil remedies therein for unaborted children

who have undergone natural childbirth. The Fourteenth

Amendment limits state actions only; it does not purport to

impose requirements of state protection against purely private

actions. DeShaney v. Winnebago County, 489 U.S. 189, 109S.

Ct. 998, 103 L. Ed. 2d 249 (1989).

The scope, extent, reach and application of astate’s tort law

are strictly matters of state law, and for state judicial

determination only. Ferri v. Ackerman, 444 U.S. 197, 100S. Ct.

402,62 L. Ed. 2d 335 (1979) (“when state law creates acause of

action, the state is free to define the defenses to that claim... .”

444 U.S. at 198, 100S. Ct. at 406). Likewise, the interpretation

of state abortion regulations, including the interpretation of who

is to be protected by them, are strictly questions of state law, and

4

state judicial determination only. Federal constitutional law

imposes certain limits and restrictions on how far states can goin

those areas, but the Constitution imposes absolutely no

affirmative requirements of what state law must provide in the

area of civil torts, or abortion regulation. See Martinez, supra;

Ferri, supra; DeShaney, supra.

Accordingly, in arguing that Tennessee’s courts should have

recognized and tried either the plaintiff's common law battery

claim, or else her state statutory abortion claim, the plaintiff

argues issues of state law only, which are merely dressed,

superficially, in the verbiage of federal constitutional rights.

Applying the criteria for consideration of Petitions for the Writ

found in Supreme Court Rule 10, the petitioner (who never cites

or refers to Rule 10, or any of its criteria, in her Petition) has not

identified any decisior by any court that conflicts with the

decision of the Tennessee Court of Appeals in this case on any

question of federal law.

For that matter the petitioner has not identified any

important question of federal law actually “decided by” the

Tennessee Court of Appeals in this case. See Supreme Court

Rule 10(c). The plaintiff actually presented only two arguments

of federal law to the Tennessee Court of Appeals. The plaintiff

invoked this Court's case of Roe v. Wade, 410 U.S. 113,93S.Ct.

705,35 L. Ed. 2d 147 (1973) ina hard-to-comprehend argument

that the present non-abortion case somehow represents an

extension or revision of Roe v. Wade principles. The plaintiff

also invoked one of Tennessee's abortion regulation statutes,

Tenn. Code Ann. § 39-4-206, and claimed that Fourteenth

Amendment equal protection principles required the extension

of that abortion statute beyond abortion procedures to cover

unaborted newborn infants like the plaintiff. The Tennessee

Court of Appeals adjudicated neither of these putatively federal

claims, leaving this Court without subject matter jurisdiction

over the Petition. 28 U.S.C. § 1257.

5

This is not an abortion case, and never has been! The

plaintiff, an unaborted, spontaneously-born infant, has never

claimed to be the victim of an abortion as that term is specifically

defined in Tennessee's abortion regulation statutes. See Tenn.

Code Ann. § 39-15-201(a)(1) (defining “abortion” as an attempt

to destroy a child “before its birth”). Roe v. Wade, supra,

addressed the Fourteenth Amendment privacy rights of pregnant

women against interference by the state. No one has ever

claimed any violation of a right to privacy in this case. Roe v.

Wade has no application, or relevance, to this case, where no one

attempted to terminate plaintiff’s mother’s pregnancy before

plaintiff's birth. The Tennessee Court of Appeals decided no

privacy issues whatsoever, much less any privacy issues

regarding pregnant women.

The plaintiff's equal protection argument below was

equally strained. The plaintiff argued that if Tennessee's

abortion statute was not extended to her, as an unaborted infant,

then it would unconstitutionally give aborted fetuses more rights

to medical care than those given to plaintiff as an unaborted

infant. That argument was, and is, premised entirely on an

unsupported interpretation of Tennessee law, that Tennessee's

abortion statute somehow gives more rights, as a matter of state

law, to aborted fetuses than otherwise bestowed by state law on

naturally born children. The Court of Appeals did not adopt or

endorse this interpretation of state law, and therefore never

reached plaintiff's equal protection claim. The Court of Appeals

did not have any bona fide claims of aborted fetuses before it to

warrant construction of Tennessee's abortion statutes. A court

cannot construe a statute that does not affect any parties actually

before the court. See Gorieb v. Fox, 274 U.S. 603, 47 S. Ct. 675

(1927).

Beyond that, plaintiff's equal protection argument

concerning Tennessee's abortion statute, even if accepted at face

6

value, would go toward the invalidation of that abortion statute,

rather than any unprecedented judicial extension of a state

statute beyond its expressly stated meaning. The validity or

invalidity of Tennessee’s abortion regulations under the

Fourteenth Amendment cannot be tested in the absence of facts,

and of parties actually affected by those regulations. See Gorieb

v. Fox, supra. The plaintiff has not been affected by any

Tennessee abortion regulation! To repeat, this is not an abortion

case, and never has been!

Accordingly, the Petition for Writ of Certiorari does not

present a federal question within this Court’s jurisdiction,

because the Tennessee Court of Appeals adjudicated no federal

questions. Moreover, the Petition should be denied as not raising

any substantial federal question within the criteria of Supreme

Court Rule 10. Most respectfully, the court should consider

awarding sanctions and damages to the respondents for this

frivolous filing, pursuant to Supreme Court Rule 42.2 and 28

U.S.C. § 1927.

Out of an abundance of precaution, and pursuant to the

admonitions of Supreme Court Rule 15.2, the respondent

respectfully submits the following list of other misstatements of

fact or law contained in the Petition.

1. “The decision of an intermediate state

appellate court has been held to be the highest

court of a state for purposes of certiorari to

the United States Supreme Court where the

Interstate Circuit, Inc. v. Dallas, 390 U.S.

676 (1968).” Quotation from page | of

Petition.

7

Response: The /nterstate Circuit casewas reviewed by the

Supreme Court pursuant to its then mandatory jurisdiction, and

not pursuant to its certiorari jurisdiction over state court

proceedings under the current version of 28U.S.C. § 1257. This

is not a material issue, however, inasmuch as the petitioner’s

application for discretionary review before the Tennessee

Supreme Court contained the same deficiencies, with respect to

not raising any bona fide or substantial federal questions, as did

petitioner's brief to the Tennessee Court of Appeals.

2. “In addition to the injury, pain and

suffering Plaintiff endured for the hour she

struggled to breath without Defendants’

assistance, .. .” Quotation from page 6 of

Petition.

Response: These particular damage allegations were

never proven, and the general jury verdict against the petitioner

may well have rejected them.

3. “Subsequently, and sua sponte, the trial

court offered to and dismissed Plaintiff's

cause of action against Defendant: alleging

battery.” Quotation from page 7 o/ Petition.

Response: In reality, the trial court dismissed plaintiff's

battery claims pursuant to defendants’ motions for partial

summary judgment. See Footnote |, Court oiAppeals Decision,

905 S.W. 2d 944 at 947.

4. “In this case the facts before he Court

posed directly the question of whether the

appellant is a citizen at the moma of her

birth or whether her citizenship nust first

pass a test of ‘viability’ that oly her

physician can administer.” Quotation from

page 9 of Petition.

Response: The petitioner was granted a trial on her claim

for medical malpractice against the defendants, a state-created

right available to “citizens” and not available to non-viable

fetuses. See Tenn. Code Ann. § 20-5-106(c) (extending wrongful

death claims only to fetuses “viable” at the time of injury). Dr.

Manning’s initial determination that plaintiff was not a viable

fetus obviously did not forestall the plaintiff's right toa jury trial,

as a citizen, on her medical malpractice claim. The procedures

followed by Tennessee courts in this case plainly recognized

plaintiff's citizenship and state created common law right to sue

for personal injuries, despite Dr. Manning's initial

determination of non-viability. The plaintiff never raised this

“question” of her “citizenship” below.

5. “It is unconstitutional for either the

Tennessee courts or indeed the United States

Supreme Court to delegate to members of the

medical profession, the determination of

which citizens are entitled to the Fourteenth

Amendment protection.” Quotation from

page 12 of Petition.

Response: Obviously no one has done any such thing.

Tennessee's courts granted the plaintiff a jury trial on her

medical malpractice claim, and the plaintiff lost. That fully

satisfies the requirements of the Fourteenth Amendment

concerning state tort claims. The plaintiff never raised the

question of her “citizenship” below.

6. “[Plaintiff] has lost her right to civil

remedies guaranteed to every other citizen.”

Quotation from page 13 of Petition.

9

Response: Again, the plaintiff was given a civil jury trial

on her tort claim, and she lost. The plaintiff has offered no

evidence or court precedent to show that any other severely

premature infant whose artificial life support measures were

withdrawn on the basis of non-viability has been granted a right

to sue specifically for battery or for violation of one of

Tennessee’s abortion statutes. Absent such a showing, the

plaintiff's claim of denial of equal protection is an unaddressable

hypothetical abstraction.

7. “The Court of Appeals of Tennessee,

Eastern Section has withheld [plaintiff’s)

right to seek civil redress for common law

and statutory violations by judicial sleight of

hand.” Quotation from page 13 of Petition.

Response: The Court of Appeals ruled that the consent

defense to battery applied as a matter of state law in this case, on

the facts before it. The Court of Appeals also ruled that

Tennessee's abortion statute did not apply to an unaborted

newborn infant. Plaintiff cites no law requiring the state to apply

either one or the other of those theories to these facts. Atany rate,

perceived errors of state law and/or state procedure are not

matters of federal Constitutional concern.

8. “Defendants’ expert justifies the

actions by addressing Plaintiff's

birth in terms of an abortion.” Quotation

10

9. “The ruling of the Court of Appeals of

Tennessee stands [T.C.A. §39-4-206] onend

by impermissibly establishing twoclasses of

infant rights to medical care: ones whichcan

be enforced by civil action under the

Tennessee abortion statute and the common

law of battery and ones which cannot.”

Quotation from pages 17 and 18 of Petition.

Response: This statement is based upon petitioner's

counsel’s own unique, unsanctioned, unsupported, and strained

interpretation of the cited abortion statute. Tennessee’s courts

have certainly never endorsed that interpretation in any reported

precedent. In addition, no Tennessee precedent is offered to

support plaintiff’s bare assertion that an aborted fetus, who is

born alive, would necessarily have either a statutory claim (apart

from one based on a medical malpractice theory) or acommon

law right of action for battery in the event his physician

withdraws artificial life support measures. The statute nowhere

suggests such specific causes of action, and no precedent is

offered to show that either exists. The plaintiff's medical

malpractice claims based on the withdrawal of artificial life

support measures were heard and decided by a jury.

10. “The decision of the Court of Appeais of

Tennessee is that only physicians and their

standard of care can determine the right to

receive or withdraw life saving care.”

Quotation from page 21 of Petition.

Response: The plaintiff was given an opportunity to

convince a jury that Dr. Manning had a professional duty of care

to provide artificial life support to the plaintiff immediately after

her birth. She complains here of nothing more than losing her

11

The State of Tennessee may very well have chosen not to

require physicians to render treatment, even potentially life-

preserving treatment, that in the exercise of reasonable care, they

consider to be ineffective. The petitioner cites absolutely no

federal constitutional authority prohibiting states from making

such a choice. This Court’s case of Cruzan y. Missouri

Department of Health, 497 U.S.261, 1105S. Ct. 2841, 111 L.Ed.

2d 224 (1990) (which was never cited below) validates and

recognizes state policymaking authority in regulating privately

authorized withdrawals of artificial life support measures. The

Fourteenth Amendment, which restricts State action only,

certainly dictates no contrary policies to the states.

12

CONCLUSION

The Petition for Writ of Certiorari should be denied.

In addition, the petitioner’s trivialization of important

constitutional protections, and frivolous filing should be

discouraged in the strongest possible terms. The Petition has

occupied the time and resources of both of the respondents, as

well as of this Court, undoubtedly at some cost to its more

important duties. Respectfully, the respondents ask this Court to

not only deny the Petition for Writ of Certiorari, but to consider

the appropriateness of an award of damages to the respondents

pursuant to Supreme Court Rule 42.2 and 28 U.S.C. § 1927.

Respectfully submitted,

RICK L. POWERS

Counsel of Record

DAN D. RHEA

ARNETT, DRAPER & HAGOOD

Attorneys for Respondent

Fort Sanders Regional

Medical Center

2300 First Tennessee Plaza

800 South Gay Street

Knoxville, Tennessee 37929

(423) 546-7000