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

—

ee Supreme Court, U.S.

ast FILED

No. 95-1202 i]

| FES 27 1996

*

In The ical CLERK ie

Supreme Court of the United States

October Term, 1995

Sd

IEZHJA HARTSELL, A Minor

By Next Friend, JERRY UPTON,

Petitioner,

versus

FORT SANDERS REGIONAL

MEDICAL CENTER and

RICHARD O. MANNING, M.D.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Tennessee,

Eastern Section

.

RESPONDENT’S BRIEF IN OPPOSITION

¢

R. FRANKLIN Norton

Counsel of Record

Gary G. SPANGLER

LYNN C. PETERSON

NorTON AND Lunn, P.C.

550 Main Avenue, Suite 900

P.O. Box 2467

Knoxville, TN 37901-2467

(423) 971-4600

Attorneys for Respondent,

Richard O. Manning, M.D.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Were the due process and equal protection clauses of

the United States Constitution violated when the Tennes-

see Courts limited plaintiff’s cause of action against

defendants to medical malpractice?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

SA AO CRIS eai cs debe ccckdeel ans stan ii

TA. Ce PATER» b0 kk 6 So bcc sapntesiunes iv

JURISDICTIONAL STATEMENT..................+.- 1

CONSTITUTIONAL AND STATUTORY

POPE 6 0s 5 Sank Gaenkeeaaetheiens el eae 1

SEAT Ree Ce See oo boca och eee e kaos =

A. SUMMARY OF PROCEDURAL

SUP RIGE o> ics yess sea wean Co aes 4

B. STATEMENT OF THE FACTS......... 5

ARGUMENT ...045.6.0025545k00 55 ree 13

I. THE UNITED STATES SUPREME COURT

LACKS SUBJECT MATTER JURISDICTION

OVER THE PETITION BECAUSE THIS

CASE INVOLVED ISSUES OF STATE LAW

WHICH ARE NOT OF A MAGNITUDE

SUFFICIENT TO WARRANT REVIEW BY

SERED CARE oo 0h0o cb iaes 4s eke case 13

I(A). THE PETITION SHOULD BE DENIED

BECAUSE PETITIONER FAILED TO

PROPERLY RAISE AND/OR PRESERVE

ANY ISSUE OF FEDERAL LAW IN THE

TEINS CORE 5 ook c iccaeccincaes 15

Il. THE DECISION BY THE TENNESSEE

COURTS TO DISALLOW PLAINTIFF FROM

PROCEEDING TO TRIAL ON HER CLAIM

OF COMMON LAW BATTERY, OR HER

STATUTORY CLAIM BASED ON ONE OF

TENNESSEE’S ABORTION REGULATIONS

DOES NOT VIOLATE THE DUE PROCESS

AND EQUAL PROTECTION CLAUSES OF

THE FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION ......... 19

ren

iii

TABLE OF CONTENTS - Continued

Page

II(A). THE TENNESSEE COURT’S INTERPRETA-

TION OF THE APPLICATION OF ONE OF

ITS ABORTION REGULATIONS TO THE

FACTS OF THIS CASE DOES NOT VIO-

LATE THE EQUAL PROTECTION CLAUSE

OF THE FOURTEENTH AMENDMENT... 19

II(B). THE TENNESSEE COURTS DID NOT VIO-

LATE THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT WHEN

IT LIMITED PLAINTIFF’S TRIAL TO A

CLAIM OF MEDICAL MALPRACTICE.... 22

ee ie ea an odn be 23

EERE SE ES a App. 1

iv

TABLE OF AUTHORITIES

Page

CASEs:

Bailey v. Anderson, 326 U.S. 203 (1945)............... 18

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......... 14

Chicago, I. & L. R. Co. v. McGuire, 196 U.S. 128

to Serer en Mig rity ere re ry toe att rye 18

City of Cleburne v. Cleburne Living Center, 473 U.S.

BOS CLOSE hb eh Aa ee aes EN TERRA lk ses 19

Conley v. Gideon, S50 SG. SE TART) ssc cases chccanne 14

Ferri v. Ackerman, 444 US. 193 (1979) ... 0c eccceccvss 17

Gorigd 0: Fox, 276 US. Ge Gee oie oe evk thc keneeewss 21

Martinez v. Stete of California, 444 U.S. 277 (1980) .... 17

Monks v. New Jersey, 398 U.S. 71 (1970).... ......... 15

Street v. New York, 394 U.S. 576 (1969) ........... 15, 18

The Trustees of Dartmouth College v. Woodward, 4

Wheat. S16, 4 Lili. GOP (IBIS) i usc cess Ch ekainds. 22

United States v. Atkinson, 297 U.S. 157 (1936)........ 18

STATUTES:

Tenn. Code Asn. § 29-26-+195....5. os cxdidsees sb aaved 4, 20

Tenn. Code Ann. § 39-4-206................000. 2 & 2

Tenn. Code Amn. & 39-15-2068.........00edss005 2, 18, 20

Tenn. Code Ann. § 39-15-206(c) ................ .20, 21

26 USK $1. oS Se Ee 1, 15

Vv

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES:

Black’s Law Dictionary, 4th Ed. Rev. (1968)........... 22

United States Supreme Court Rule 10........ 13, 15, 17

United States Supreme Court Rule 10(c)............. 18

United States Supreme Court Rule 42.2 ............. 24

Mah SOE: MIE TRE ooo os iin ees a saiwewes passim

JURISDICTIONAL STATEMENT

The United States Supreme Court lacks jurisdiction

over the Petition because this case involved issues of state

law which are not of a magnitude sufficient to warrant

review by this Court, the Tennessee Court of Appeals did

not decide any federal question in ruling on this case, and

Petitioner has not properly preserved the alleged Consti-

tutional claims. 28 U.S.C. § 1257.

+

CONSTITUTIONAL AND STATUTORY PROVISIONS

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any persons of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.”

U.S. Const. amend. XIV, § 1

“(a) The rights to medical treatment of an infant

prematurely born alive in the course of an abortion are

the same as the rights of an infant of similar medical

status prematurely born spontaneously. Any person who

performs or induces an abortion of such an infant shall

exercise that degree of professional skill, care, and dili-

gence in accordance with good medical practice neces-

sary to preserve the life and health of such infant

prematurely born alive in the course of an abortion,

except that if it can be determined, through amniocen-

tesis or medical observation, that the fetus is severely

malformed, the use of extraneous life support measures

need not be attempted.

(b) Any person who violates this section is guilty of

a Class E felony.

(c) No cause of action for wrongful death shall be

brought which arises out of the death of a fetus or infant

during the course of a lawful abortion, whether such

fetus or infant is quick or not, so long as the abortion is

performed in accordance with the provisions of this part;

however, once an infant is born alive, any person in

attendance thereto shall be civilly responsible for provid-

ing all reasonable and necessary care reasonable under

the circumstances in the general vicinity in which they

practice.”

Tennessee Code Annotated, § 39-4-206 (now § 39-15-206)

“(a) In a malpractice action, the claimant shall have

the burden of proving by evidence as provided by sub-

section (b):

(1) The recognized standard of acceptable profes-

sional practice in the profession and the specialty thereof,

if any, that the defendant practices in the community in

which he practices or in a similar community at the time

the alleged injury or wrongful action occurred;

(2) That the defendant acted with less than or failed

to act with ordinary and reasonable care in accordance

with such standard; and

Ee TN NS ET RT Te

(3) As a proximate result of the defendant’s negli-

gent act or omission, the plaintiff suffered injuries which

would not otherwise have occurred.

(b) No person in a health care profession requiring

licensure under the laws of this state shall be competent

to testify in any court of law to establish the facts

required to be established by subsection (a) unless he was

licensed to practice in the state or a contiguous bordering

State a profession or specialty which would make his

expert testimony relevant to the issues in the case and

had practiced this profession or specialty in one of these

states during the year preceding the date that the alleged

injury or wrongful act occurred. This rule shall apply to

expert witnesses testifying for the defendant as rebuttal

witnesses. The court may waive this subsection when it

determines that the appropriate witnesses otherwise

would not be available.

(c) In a malpractice action as described in subsec-

tion (a) of this section there shall be no presumption of

negligence on the part of the defendant. Provided, how-

ever, there shall be a rebuttable presumption that the

defendant was negligent where it is shown by the proof

that the instrumentality causing injury was in the defen-

dant’s (or defendants’) exclusive control and that the

accident or injury was one which ordinarily doesn’t occur

in the absence of negligence.

(d) In a malpractice action as described in subsec-

tion (a) of this section, the jury shall be instructed that the

claimant has the burden of proving, by a preponderance

of the evidence, the negligence of the defendant. The jury

shall be further instructed that injury alone does not raise

a presumption of the defendant’s negligence.”

Tennessee Code Annotated § 29-26-115

+

STATEMENT OF THE CASE

A. SUMMARY OF PROCEDURAL HISTORY

The plaintiff, lezhja Hartsell, filed this action in the

Circuit Court for Knox County, Tennessee on April 7,

1989. In the initial Complaint, plaintiff asserted claims of

medical malpractice and battery against Dr. Richard O.

Manning, certain nurses in attendance, and Fort Sanders

Regional Medical Center. On January 4, 1991, plaintiff

filed an Amended Complaint which alleged two (2) addi-

tional causes of action, outrageous conduct and violation

of Tenn. Code Ann. § 39-4-206.

On January 25, 1991, defendants filed a Motion to

Dismiss for failure to state a claim or cause of action upon

which relief can be granted relative to plaintiff’s claim

based on outrageous conduct and the alleged violation of

Tenn. Code Ann. § 39-4-206. After considering the record

and argument of counsel, on March 12, 1991 the Court

granted defendants’ Motion to Dismiss. On December 30,

1992, defendants filed a joint Motion for Partial Summary

Judgment seeking dismissal of plaintiff's claim of battery.

After considering the record and argument of counsel, on

February 19, 1993 the Trial Court granted defendants’

Motion for Partial Summary Judgment and dismissed

plaintiff’s remaining claim leaving only the claim of

alleged medical malpractice to be tried by a jury.

The medical malpractice action came on for trial on

March 2, 1993. However, the Trial Court effectively per-

mitted plaintiff to try within the medical malpractice

action, the issue of whether defendants, including Dr.

Manning, obtained informed consent, i.e. committed bat-

tery, and said issue was tried within the recognized stan-

dard of acceptable professional practice applicable in

1983 for each health care provider. During the trial, plain-

tiff took a voluntary dismissal as to the nurses in atten-

dance. At the close of plaintiff's proof, the Trial Court

directed a verdict for defendant Hospital. The jury

returned a unanimous verdict in favor of Dr. Manning,

the sole remaining defendant.

Plaintiff timely filed a Notice of Appeal to the Court

of Appeals of Tennessee for the Eastern Section. The

Court of Appeals affirmed the Judgment of the Trial

Court. Plaintiff's Application for Permission to Appeal to

the Tennessee Supreme Court was denied.

B. STATEMENT OF THE FACTS

In March, 1983, Dr. Richard Manning was the mother,

Lieza Hartsell’s, treating physician. On May 27, 1983, Ms.

Hartsell consulted Dr. Manning believing herself to be

pregnant. Her pregnancy was medically confirmed by Dr.

Manning and she came under his care for such preg-

nancy. (A.T. I, 68B). Ms. Hartsell, an admitted cocaine and

marijuana user, was considered a very high risk patient

and an ultrasound was obtained on June 13, 1983 to

determine the baby’s due date. (A.T. I, 68C). Ms. Hartsell

missed several scheduled prenatal office visits and did

not see Dr. Manning again until early September, 1983.

On September 27th, Dr. Manning both spoke with and

examined Ms. Hartsell because of complaints of vaginal

bleeding. (A.T. I, 68E-68H). An ultrasound was obtained

to rule out placenta previa, a condition that causes hem-

orrhaging and blood loss to the uterus. (A.T. I, 68H, 68)).

The ultrasound report did not substantiate placenta pre-

via, but confirmed the fetus as 23-weeks gestational age

and Ms. Hartsell was permitted to go home with instruc-

tions to call if she had further problems. (A.T. I, 68K,

68L).

The following morning, on September 28, 1983, Lieza |

Hartsell called Dr. Manning at his home at approximately

6:00 a.m. complaining of severe pain. Dr. Manning

instructed her to go to the hospital where he would meet

her. (A.T. L, 68L). Dr. Manning arrived first. He met Ms.

Hartsell upon her arrival around 6:40 a.m. Upon admis-

sion and examination, Dr. Manning diagnosed her condi-

tion as abruptio placenta, a severe life threatening

condition. He diagnosed the fetus as 23-weeks gestational

age with no chance for survival. (A.T. I, 68M-68X).

Abruptio placenta is when the afterbirth (placenta) shears

off the uterine wall. (A.T. I, 68JJ). Dr. Manning’s estimate

of the gestational age of the fetus was based upon his

examination and the ultrasounds of June 13 and Septem-

ber 17, 1983. Dr. Manning knew the child was going to be

delivered and, in his medical judgment, could not survive

due to extreme prematurity. (A.T. I, 68X-68TT). Because of

this medical judgment and due to the fact that Ms. Hart-

sell was screaming with pain, intravenous Demerol was

administered to Ms. Hartsell at 6:50 a.m. Prior to the

infant’s spontaneous delivery, Dr. Manning charted that

a

no heroic measures or neonatologist’s presence were indi-

cated because of the fetus’ gestational age and its non-

viability. (A.T. 1, 68X-68Z).

Dr. Manning attended to Ms. Hartsell for approxi-

mately 45 minutes. He then left her bedside to go to the

bathroom. At such time, Ms. Hartsell was being attended

by Faye Goodman, a registered nurse at Fort Sanders

Hospital with over 30 years obstetrical nursing experi-

ence. (A.T. 1, 68P, 68Q, 68U). Ms. Hartsell spontaneously

delivered her child at approximately 7:24 a.m. while Dr.

Manning was in the bathroom. (A.T. I, 40). A Fort Sanders

Hospital obstetrical nurse, Linda Hults, took the newborn

to the delivery room and called for Michael Tinker, a

Certified Registered Nurse Anesthetist. Mr. Tinker

arrived immediately thereafter and inserted an oxygen

tube and began breathing for the infant. (A.T. II, 78-79).

The infant’s one minute APGAR score was two; one for

heart rate and one for respiratory effort. This was out of a

total possible APGAR score of ten. Notwithstanding the

fact that the infant was receiving 100 percent pure oxygen

through the endotracheal tube, the infant’s heart rate rose

only to 50 and had, in fact, decreased to 40 when the

breathing tube was removed around 7:30 a.m. (A.T. I,

68FF, A.T. II, 86-88 and 92-92A).

At 7:30 a.m., Dr. Manning entered the delivery room

and was advised of the child’s spontaneous delivery.

After assessing the infant’s condition and having deter-

mined that the child’s heart rate had decreased from 50 to

40 after receiving 100 percent pure oxygen for several

minutes (normal heart rate being in the range of 120 to

150), Dr. Manning directed CRNA Tinker to cease his

_ resuscitation efforts based on his medical judgment and

8

belief that the infant was too premature to survive and

regarding it as the humanitarian thing to do. (A.T. I, 68FF

and 68HH). CRNA Tinker concurred with the appro-

priateness of Dr. Manning’s directive, as did Nurse Hults,

and Tinker removed the breathing tube. (A.T. II, 88A-90

and A.T. IV, 317G-317H). CRNA Tinker testified that had

he regarded Dr. Manning’s order as being wrong, he

would not have performed the extubation and that it

would have been within his standard of care not to follow

the suggested treatment course. (A.T. I, 89-90).

Dr. Manning advised Ms. Hartsell before the infant

was delivered that the child was too premature to sur-

vive. (A.T. I, 44). After delivery, Ms. Hartsell again was

informed by Dr. Manning that the baby was much too

premature to survive. Having been given this informa-

tion, the mother did not make any treatment requests

relative to the infant. (A.T. I, 45). Around 8:05 a.m., Ms.

Hartsell signeu a Special Hospital Permit Form consistent

with the consensual treatment that Dr. Manning had

given to her and her infant. (Fort Sanders Hospital Medi-

cal Records, Trial Exhibit 1).

After ordering that resuscitative efforts cease for the

newborn, Dr. Manning returned to the care and treatment

of Ms. Hartsell to monitor her for blood loss and the

delivery of the placenta. (A.T. I, 68HH). During this time

frame, the infant continued to be cared for and monitored

by attending hospital nurses. (A.T. IV, 312-313). The

infant continued to have a slow, irregular heart rate, but

no respirations were observed. (A.T. I, [IV 3171). Around

8:20 a.m., Nurse Latham noticed increased respiration

and heart rate and an audible cry was noted. Dr. Manning

was informed promptly and he immediately requested

that neonatologist, Steven Prinz, come from Children’s

Hospital. Dr. Prinz arrived around 8:40 a.m. and took

over management of the infant who was transferred to

Children’s Hospital. (A.T. 1, 68KK).

Plaintiff, lezhja Hartsell, survived her extremely pre-

mature birth. She has only a partial, mild to moderate,

hearing loss. (A.T. II, 149). At the time of the trial, she

was a nine-year old elementary school student making

straight “A’s” in all of her academic classes and was

regarded as a talented and gifted student by the school

system (an accelerated program for students recognized

as being more intelligent and motivated than average

students). (A.T. I, 23). Plaintiff is able to hear and commu-

nicate with others through the use of hearing aids. Her

direct examination testimony at trial demonstrated that

she was a good speller and an avid reader. (A.T. I, 20-22).

Plaintiff's medical causation expert witness, on the

issue of plaintiff’s hearing loss, was Dr. Arthur Prensky.

Dr. Prensky diagnosed her hearing loss as sensorineural

due to a lack of oxygen and possibly to certain medica-

tions the child received upon her birth. (A.T. II, 139-141).

However, Prensky conceded and testified on both direct

and cross examination that there were periods of time

before her birth which could have caused or contributed

to this sensorineural hearing loss. (A.T. II, 153). Dr. Pre-

nsky also testified that Ms. Hartsell’s abruptio placenta

was a potential contributing factor for hypoxia (oxygen

deprivation) to the fetus just preceding and shortly after

birth. (A.T. II, 154). On cross examination, Dr. Prensky

testified that he could not say whether or not the plaintiff

would have had sensorineural hearing loss if the breath-

ing tube had not been removed. (A.T. III, 198). In any

10

event, Dr. Prensky testified that plaintiff’s hearing loss

was in part correctable with hearing aids. (A.T. II, 50).

This was confirmed by the testimony of plaintiff’s audi-

ologist expert, James Thelin, who testified that if the

plaintiff uses hearing aids on a regular basis, her func-

tional capabilities will improve and that her prognosis as

far as articulation and language is excellent and very well

100 percent correctable. (A.T. III, 267B-267C). Dr. Thelin

further conceded that when he spoke with plaintiff her

conversational speech was fluent. (A.T. III, 267C).

Dr. Andrew Zimmerman, a board certified neurolo-

gist with special competence and specialization in pedi-

atric or child neurology, testified on behalf of Dr.

Manning that the plaintiff's sensorineural hearing loss

was due to her very low birth weight and extreme pre-

maturity, and that the plaintiff did not suffer any signifi-

cant oxygen deprivation, either due to her abruptio

placenta or the extubation. (A.T. IV, 324). Dr. Zimmerman

also testified that it was his opinion that any oxygen

deprivation that plaintiff may have experienced after the

order for extubation did not result in any hearing loss.

(A.T. IV, 325).

Dr. Manning, testifying on his own behalf, opined

that he acted within the recognized standard of accept-

able professional practice for an obstetrician practicing in

Knoxville, Tennessee in September, 1983 in his diagnosis,

care, and treatment of the plaintiff and her mother. He

specifically testified that his medical judgment that a 23-

week gestational age infant could not survive and should

not receive extraordinary medical resuscitative effort,

was within the standard of care at that time. (A.T. I,

68MM-68ZZ and A.T. II, 68AAA-68DDD).

11

Dr. Baha Sibai, head of the Obstetric unit at the

University of Tennessee Medical Center in Memphis, tes-

tified as to the obstetrical standard of care for a physician

in 1983 practicing in Knoxville, Tennessee and similar

communities confronted with spontaneous premature

delivery of a 23-week gestational age infant. Dr. Sibai

testified that his obstetric unit has the largest maternal

transfer system in the United States and the largest

number of pre-term births delivered comparatively in the

United States. (A.T. IV, 336C-336D). As head of the Uni-

versity of Tennessee Obstetric Service in Memphis, Dr.

Sibai has both teaching responsibilities as well as active

clinical (birthing) duties. (A.T. IV, 336E-336F). He testified

that he had trained more than half of all obstetricians

now practicing in Knoxville. (A.T. IV, 338). Plaintiff’s

counsel stipulated Dr. Sibai’s eminent qualifications as an

expert in the fields of obstetrics, gynecology, perinatol-

ogy, and neonatology. (A.T. IV, 339A).

Dr. Sibai testified that Dr. Manning acted within the

standard of care for an obstetrician practicing in Knox-

ville, Tennessee in 1983 relative to his diagnosis, treat-

ment, and care of the plaintiff and her mother. (A.T. IV,

341-342). He specifically testified that in 1983 it was very,

very difficult for premature infants born below 26-weeks

gestational age to survive outside the womb and that

premature infants estimated at a gestational age of 23-

weeks were considered nonviable for all practical pur-

poses, and that the standard of care for an obstetrician for

such a premature infant in 1983 was to inform the mother

that the baby had no chance for survival and not do

anything relative to resuscitative efforts on behalf of the

infant. (A.T. IV, 343-346). Dr. Sibai concurred with Dr.

12

Manning’s medical judgment that the plaintiff was non-

viable based on her estimated gestational age of 23-

weeks, and testified that Dr. Manning acted within the

recognized standard of acceptable professional practice

for an obstetrician in 1983 in ordering the cessation of

resuscitative efforts. (A.T. IV, 348-349). Dr. Sibai further

opined, with reasonable medical certainty, that he did not

believe the plaintiff had sustained any hypoxic injury as a

result of Dr. Manning’s order to extubate the infant. (A.T.

IV, 349-353). Both Dr. Manning and Dr. Sibai assessed the

plaintiff’s survival at 23-weeks gestational age and subse-

quent medical course as miraculous. (A.T. I, 68KK and

A.T. IV, 358A).

The Respondent submits that the Statement of the

Case in Hartsell’s Petition for Writ of Certiorari, primar-

ily at pages 5-6, and the appendix at pages 18 and 25-29,

includes alleged facts which are outside the record. The

alleged details of Iezhja Hartsell’s condition upon her

admission to Children’s Hospital and her examination by

Dr. Prinz are not matters of proof in this case.

*

SUMMARY OF ARGUMENT

The claims raised by Petitioner in this action are

based upon state law which is supported by long-

established legal doctrine, and over which this Court

lacks subject matter jurisdiction. Further, Petitioner has

failed to properly raise and preserve the constitutional

issues posed, thus these issues have been waived. There

are no special and important reasons which would war-

rant review by the Supreme Court.

13

The Courts below did not violate the due process and

equal protection clauses of the Fourteenth Amendment of

the United States Constitution by limiting plaintiff's trial

to her claim of medical malpractice.

The ruling of the Tennessee Court of Appeals should

stand. The Petition for Writ of Certiorari to the United

States Supreme Court should be denied.

¢

ARGUMENT

I.. The United States Supreme Court lacks subject mat-

ter jurisdiction over the Petition because this case

involved issues of state law which are not of a

magnitude sufficient to warrant review by this

Court.

Rule 10 of the Rules of the Supreme Court of the

United States provides that, “a petition for a writ of

certiorari will be granted only for compelling reasons.”

The text of this rule sets forth specific reasons which

satisfy this standard that includes conflicts between deci-

sions of various circuit courts of appeal or decisions by

state or federal courts concerning significant issues of

federal law. This action fails to meet the criteria set forth

in Rule 10. This action involves issues of state law only

which are supported by established legal doctrines, and

which are not of a magnitude sufficient to warrant review

by the Supreme Court of the United States.

In her Complaint and Amended Complaint, plaintiff

asserted four (4) alternative theories of liability against

the defendants: 1) medical malpractice; 2) common law

battery; 3) outrageous conduct; and 4) a statutory claim

14

based on one of Tennessee’s abortion regulations. In

response to defendants’ Motion for Partial Summary

Judgment, the Trial Court dismissed plaintiff’s battery

claim. In response to defendants’ Motion to Dismiss, the

Trial Court dismissed plaintiff's claims of outrageous

conduct and an alleged violation of one of Tennessee’s

abortion regulations for failure to state a claim or cause of

action upon which relief can be granted. Plaintiff's

remaining medical malpractice claim was heard before a

jury which returned a defense verdict. 7

The Trial Court properly evaluated the record and

found that plaintiff had not come forward with evidence

to create an issue of. fact on her battery claim and dis-

missed this claim. The issues involved were exclusively

those of the application of state common law and state

procedure to the facts of the case. Partial summary judg-

ment was properly allowed in accordance with Celotex

Corp. v. Catrett, 477 U.S. 317 (1986). Likewise, the Trial

Court properly evaluated the record and found that

plaintiff could prove no set of facts which would entitle

her to relief on her claims of outrageous conduct and the

alleged violation of a Tennessee abortion regulation and

dismissed these claims. Again the issues involved were

exclusively those of the application of state statutory and

common law and state procedure to the facts of the case.

The Motion to Dismiss was properly granted in accor-

dance with Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2

L.Ed.2d 80 (1957). The plaintiff had a fair and adequate

opportunity for consideration of these issues by the

Courts below.

This case does not involve conflicts with other Courts

of appeals or conflicts between state courts regarding a

15

federal question, does not involve a departure from the

usual course of judicial proceedings, and does not

involve an important question of federal law which

should be settled by this Court. The Petition does not

raise any of the criteria of Rule 10, and none of those

criteria are met by the facts and circumstances of this

case. Accordingly, this respondent respectfully submits

that the Petition should be denied.

I(A). The Petition should be denied because petitioner

failed to properly raise and/or preserve any issue

of federal law in the Tennessee Courts.

Petitioner did not raise the constitutional claims

asserted in her Petition for Writ of Certiorari in the Ten-

nessee Courts and accordingly, these claims are waived.

Consequently, this Court lacks subject matter jurisdiction

relative to this Petition. See, 28 U.S.C. § 1257; Monks v.

New Jersey, 398 U.S. 71, 90 S.Ct. 1563, 26 L.Ed.2d 54 (1970);

Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d

572 (1969).

Following a defense verdict in the Trial Court, the

plaintiff filed an appeal with the Tennessee Court of

Appeals. The issues presented to that Court in plaintiff’s

brief were as follows:

I. The Trial Court erred in taking away the minor

plaintiff's statutory and common law rights by

limiting plaintiff's causes of action to medical

malpractice.

I(A). The Trial Court erred in taking away the minor

plaintiff’s common law right to be free from a

harmful or offensive touching.

I(B).

I(C).

II.

II(A).

II(B).

II(C).

II(D).

Ill.

16

The Trial Court erred in taking away the minor

plaintiff’s statutory right to medical care to pre-

serve her life and health.

The Trial Court erred in taking away the minor

plaintiff’s right to have defendants’ actions mea-

sured by our common standards of decency

under the theory of outrageous conduct.

Even if the Trial Court did not err in limiting the

minor plaintiff’s causes of action to medical mal-

practice, it erred in its instructions and evidenti-

ary rulings for the one cause of action it did

aliow.

The Trial Court erred in failing to instruct the jury

on a physician’s duty not to abandon his patient.

The Trial Court erred in excluding proof that

defendants did nothing for plaintiff until she “did

not stop gasping at the end of five minutes” and

further that defendants discontinued life support

for her when she “had a heart rate in excess of

100.”

The Trial Court erred in excluding any proof

related to defendant hospital’s advertisement that

in 1924 it kept a two pound, fourteen ounce pre-

mature baby alive and that she survived to be a

healthy adult.

The Trial Court erred in excluding proof of AMA

ethical rulings when the defendant had contrac-

tually agreed to strictly abide by those rulings.

The Trial Court erred in directing a verdict for

defendant hospital when there was material evi-

dence to support a verdict for plaintiff.

The issues raised by plaintiff in her application for per-

mission to appeal to the Tennessee Supreme Court were

|

17

phrased differently, but were essentially the same as

above. (App. 1).

The only time that the United States Constitution was

mentioned by plaintiff in the courts below was a claim,

made in passing, that the state court’s interpretation that

a Tennessee abortion regulation did not apply to prema-

ture infants not born as a result of a failed abortion, made

that statute unconstitutional.

The United States Constitution does not compel the

states to pass legislation regulating abortion. Further, if a

state chooses to enact certain abortion regulations, the

Constitution does not require that the state include in

them civil remedies for premature infants not born as a

result of a failed abortion. The scope, extent, and applica-

tion of a state’s tort law are solely matters of state law,

and for state courts to interpret. Ferri v. Ackerman, 444

U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 339 (1979). While the

United States Constitution imposes some limits and

restrictions on the creation of state tort laws, it imposes

no requirements relative to what the states must offer its

citizens in the area of civil torts. The United States Con-

stitution does not compel the states to offer common law

remedies for private causes of action, and specifically the

Fourteenth Amendment does not compel any particular

| form or elements for civil remedies made available by

state regulation. See, Martinez v. State of California, 444

U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Ferri, supra.

The mere fact that Petitioner mentioned the United

States Constitution in her brief to the Tennessee Court of

Appeals does not preserve this issue for review by the

Supreme Court of the United States. Rule 10 of the United

ES a

18

States Supreme Court Rules states that certiorari will be

granted relative to important questions of federal law

“decided by” the lower courts. See, United States

Supreme Court Rule 10(c). The Tennessee Courts did not

decide any important questions of Federal law. Speci-

fically, the Tennessee Court of Appeals did not address

the constitutionality of Tenn. Code Ann. § 39-15-206 in its

opinion. When,

the highest state court has failed to pass on a

federal question, it will be assumed that the

omission was due to want of proper presenta-

tion in the state courts, unless the aggrieved

party in this court can affirmatively show the

contrary.

Street, supra at 1360; See e.g. Bailey v. Anderson, 326 U.S.

203, 66 S.Ct. 66, 90 L.Ed. 3 (1945); Chicago, I. & L. R. Co. v.

McGuire, 196 U.S. 128, 25 S.Ct. 200, 49 L.Ed. 413 (1905).

Petitioner has not identified any question of federal law,

important or otherwise, actually “decided by” the Ten-

nessee Court of Appeals. This respondent respectfully

submits that this was not done because the Tennessee

Courts and specifically the Tennessee Court of Appeals

did not decide any question of federal law in this case.

Because the plaintiff has only presented and argued

questions of state law in the courts below, and because

the Tennessee Court of Appeals did not decide any fed-

eral question in ruling on this case, Petitioner has not

preserved her alleged constitutional claims and thus

these issues are waived. United States v. Atkinson, 297 U.S.

157, 56 S.Ct. 391 (1936). Accordingly, this respondent

respectfully submits that the Petition should be denied.

19

II. The decision by the Tennessee Courts to disal-

low plaintiff from proceeding to trial on her

claim of common law battery, or her statutory

claim based on one of Tennessee’s abortion reg-

ulations does not violate the due process and

equal protection clauses of the Fourteenth

Amendment of the United States Constitution. ©

The Petitioner does not cite any decision of this

Court, any decision of any Federal Court, or any legal

authority whatsoever to support plaintiff’s assertion that

the due process and equal protection clauses of the Four-

teenth Amendment of the United States Constitution

compel the Tennessee Courts to grant plaintiff a jury trial

on either her claim of common law battery, outrageous

conduct, or her statutory claim based on one of Tennes-

see’s abortion regulations.

II(A). The Tennessee Court’s interpretation of the

application of one of its abortion regulations to

the facts of this case does not violate the equal

protection clause of the Fourteenth Amendment.

The equal protection clause of the Fourteenth

Amendment of the United States Constitution is in

essence a directive that all persons similarly situated

should be treated alike. See, City of Cleburne v. Cleburne

Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3253-54, 87

L.Ed.2d 313 (1985). The equal protection clause does not

require that individuals who are differently situated be

treated equally, nor does it disallow similar treatment of

dissimilarly situated individuals.

20

Piaintiff maintains that the equal protection clause

requires the Tennessee Courts to extend the application of

one of its abortion regulations to premature infants born

to women not seeking an abortion. Plaintiff asserts that

Tenn. Code Ann. § 39-15-206 somehow grants more rights

to aborted fetuses than to prematurely born infants. How-

ever, Tenn. Code Ann. § 39-15-206(c) simply provides that

if, during the course of an abortion, an infant is born

alive, the individuals in attendance must provide “all

reasonable and necessary care reasonable under the cir-

cumstances in the general vicinity in which they prac-

tice.” The standard set forth in this statute is identical to

the standard applied in a Tennessee medical malpractice

case, and the standard that was applied to plaintiff's case.

See, Tenn. Code Ann. § 29-26-115.

In Tennessee in order to make out a claim for medical

malpractice, the individual (including a premature infant)

must show that the care they received was below the

acceptable standard of professional practice in their com-

munity. See, Tenn. Code Ann. § 29-26-115. In Tennessee an

infant born alive during the course of an abortion is

entitled to that same degree of medical care from those

attending, specifically “all reasonable and necessary care

under the circumstances in the general vicinity in which

they practice.” See, Tenn. Code Ann. § 39-15-206(c). The

standard of care afforded to aborted fetuses born alive

and the standard of care afforded the premature infants

are identical, and this is the standard of care that was

applied to plaintiff's case. Accordingly, the statute in

question and the Tennessee courts’ interpretation of the

statute provided similar treatment to dissimilarly situated

individuals and in no way violates the equal protection

21

clause of the Fourteenth Amendment to the United States

Constitution.

Above and beyond the fact that Tenn. Code Ann.

§ 39-15-206(c) does not violate the equal protection

clause, the validity of this abortion regulation cannot be

tested in the absence of facts and of parties actually

affected by those regulations. See, Gorieb v. Fox, 274 U.S.

603, 77 S.Ct. 675, 71 L.Ed. 1228 (1927). Plaintiff was in no

way affected by this Tennessee abortion regulation. In

holding that Tenn. Code Ann. § 39-4-206 was inapplicable

to this case, the Tennessee Court of Appeals stated:

The clear language of the Statute shows that it

was designed to protect babies born during an

abortion, not all babies born prematurely. This is

not to say that premature babies are not to be

protected. But this Section does not give babies

born prematurely a special cause of action

beyond that which they are already assured

under the law of medical malpractice. (p. 6).

Decisions made relative to plaintiff's care upon birth

were not governed or regulated by this Tennessee abor-

tion regulation. At no stage of this case has plaintiff

contended that she was born as the result of a failed

abortion, and the record is uncontroverted that the case

before this Court has never had anything to do with an

abortion. Accordingly, this Court cannot test the validity

of this Tennessee abortion regulation when it was never

applied to the plaintiff or the facts of this case.

22

II(B). The Tennessee Courts did not violate the due

process clause of the Fourteenth Amendment

when it limited plaintiff’s trial to a claim of

medical malpractice.

The plaintiff contends that in violation of her due

process rights, the Trial Court limited her cause of action

to medical malpractice. Plaintiff asserts that her claims

for common law battery and an alleged statutory viola-

tion were withheld by “judicial slight of hand.” (p. 13 of

Petition for Writ of Certiorari.) This simply is not true.

The due process clause of the Fourteenth Amend-

ment to the Constitution of the United States grants to the

person affected the right “to be present before the tribu-

nal which pronounces judgment upon the question of life,

liberty, or property, in its most comprehensive sense.”

Black’s Law Dictionary, 4th Ed. Rev. (1968). This right

includes the right to be heard, by testimony or otherwise,

and to have the right of controverting, by proof, every

material fact which bears on the question of right in the

matter involved. Daniel Webster defined due process to

mean, “a law which hears before it condemns; which

proceeds upon inquiry, and renders judgment only after

trial.” The Trustees of Dartmouth College v. Woodward, 4

Wheat. 518, 581, 4 L.Ed. 629 (1819). Relative to plaintiff's

battery claim, both the Trial Court and the Tennessee

Court of Appeals concluded that plaintiff’s mother gave

informed consent for Dr. Manning and the hospital to

treat her newborn infant and properly dismissed the bat-

tery claim. Relative to the alleged statutory violation of

one of Tennessee’s abortion regulations, the Trial Court

and the Tennessee Court of Appeals properly concluded

that inasmuch as plaintiff does not contend that she was

23

born as a result of a failed abortion the statute does not

apply. Contrary to plaintiff’s contention that she was

denied a hearing on her claims of common law battery

and an alleged statutory violation, both the Trial Court

and the Tennessee Court of Appeals fully considered

these claims and found them to be without merit.

Plaintiff received a trial on her claims, a right avail-

able to all citizens; she has not lost “her right to civil

remedies guaranteed to every other citizen.” (p. 13 of

- Petition for Writ of Certiorari). The Tennessee Courts

granted plaintiff the right to a jury trial. The plaintiff lost.

This fully satisfies the due process requirements of the

Fourteenth Amendment to the United States Constitu-

tion.

CONCLUSION

The respondent respectfully submits that this case

presents no issue of law or fact that justifies review by the

United States Supreme Court. The petitioner has had this

record properly reviewed both at the trial and appellate

Court levels. This respondent respectfully submits that

the decisions of these Courts are proper and that the

Petition for Writ of Certiorari should be denied.

Plaintiff’s claims were carefully and fully considered

in the lower courts. Furthermore, because Petitioner has

not properly raised or preserved for appeal the asserted

issue that certain constitutional protections were violated,

and has not presented this Court with a federal question

for review as required to invoke the jurisdiction of this

Court, this appeal is frivolous and appears to have been

ii.

24

advanced solely for the purposes of harassment or delay.

Accordingly, this respondent respectfully requests this

Court to not only deny the Petition for Writ of Certiorari,

but also to consider the appropriateness of an award of

damages to the respondents pursuant to Rule 42.2 of the

United States Supreme Court Rules.

Respectfully submitted,

RicHARD O. MANNING, M.D.

R. FRANKLIN Norton

Gary G. SPANGLER

Lynn C. PETERSON

Attorneys for Respondent,

Richard O. Manning.

Of Counsel:

Norton AND Lunn, P.C.

P.O. Box 2467

550 Main Avenue

Suite 900 :

Knoxville, Tennessee 37901-2467

(423) 971-4600

APPENDIX

App. 1

QUESTIONS PRESENTED FOR REVIEW IN

IEZHJA HARTSELL’S APPLICATION FOR

PERMISSION TO APPEAL TO THE

TENNESSEE SUPREME COURT

I. Did the Court of Appeals err in limiting Appel-

lant’s causes of action to medical malpractice by holding

inapplicable every law, statute, theory, jury instruction or

rule which would prevent the removal of life support

from a minor infant?

II. Did the Court of Appeals err in approving a

directed verdict in favor of Defendant Hospital when

there was material evidence in the record which would

support a verdict for the Plaintiff?