# FILED

February 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

TERESA MCGLOTHL IN and KATHY ) C/A NO. 03A01-9706-CV-00236 HELTON, ) ) SULLI VAN LAW Appellants, ) ) HON. JO HN M cLELLA N, III v. ) JUDGE ) BRIS TOL OBS TET RICS , ) GYNECOLOGY and FAMILY ) PLA NNIN G, INC ., ) ) and ) DR. GARY BOYLE, ) AFFIRMED ) AND Appellees. ) REMANDED

TERRY C. FRYE, Bristol, VA, for Appellants. CHARLES T. HERNDON, IV, HERNDON, COLEMAN, BRADING & McKEE, Johnson City, for Appellees.

O P I N I O N

Franks, J.

Plaintiffs, m other and d aughter, sue d defend ants, chargin g defend ants performed an a bortion on daugh ter, in violation of T.C.A. §39 -15-202, and the do ctor, in performing the abor

tion, was guil

ty of medical

malpractice and bat

tery upon the daughter. The Trial Court dis missed the part of the complaint r

elying upon violation of t

he statute,on the grounds that the statut

e was unconstitut

ional, and granted summary j udgment on the remaining ca uses of action. Plaintiffs have2

appealed. The disputed stat ute was passed by t

he General Assembly i

n 1989, and recorded a t Chapter 5 91, Public A cts of 198 9, which A ct states, in pertine nt part:

Section 39 -15-202. C onsent of pregnan t woman required pr ior to abortion-i

nformation provided by doctor-Waiting pe

riod-Penalt

y for violation-N otice to paren ts or guardia ns-Requ irements ina pplicable in certain cases. (a) An abortion othe

rwise permitt

ed by law shall

be performed or induced only wit

h the informed writt

en consent of the pregna nt woman, given freely

and without coercion.Such consent shall be treated as confiden tial. (b) In order to insure that a c onsent fo r an abortion is truly informed consent, a

n abortion shal

l be performed or induced upon a pregnant woman only aft er she has been oral

ly informed by

her attending physician of the follow ing facts and has signe d a consent form acknowledging that she has been informed as follows:

(1) That according t

o the best judgment of

her attending physician she is pregnan t; (2) The numbe

r of wee ks el apsed

from t he pro bable time of the conception of her unborn child, bas ed upon the information provided by her a s to the ti me of her last menstr

ual period or aft

er a history, physical examination, and appropriate laboratory tests; (3) That if more tha

n twenty-four (24) weeks have elapsed from the time of conception, her child may be viable, that i s, capable o f surviving outside of th e wom b, and that if s uch child is prematurel

y born alive

in the course of an abor tion her attending p hysician has a le gal obligation to take steps to preserve the l

ife and health of t

he child; (4) That abortion in a considerabl e number of cases constitut es a major surgic al procedure; (5) That numerous public and private agenci es and services are a

vailable t o assist her

during her pregnancy

and after the birth of her

child, if she chooses not to have t he abortion, whether she wishes to keep he r child or pl ace him or her for adoption, and tha

t her physi

cian will provi

de her with a list of such agencies and the s ervices available if she so re quests; or (6) Num erous ben efits and risk s are attenda nt either to continued pregnancy

and childbirt

h or to aborti on depending upon the circumstanc es that the pat ient might fi

nd herself in. The physician sha ll explain thes e benefits a nd risks to the best of his ability and knowledge of the circumst ances involved.3 (c) At the same ti

me the attending phy sician provi des the information required b y subsection (b) of this section, he shall inform the pregnant woman of the part icular ri sks associat

ed with her pregnan cy and childb irth and the a bortion or c hild delivery tech nique to be employed, i

ncluding providi

ng her with at least a general descr iption of the medical instructions t o be followed subsequent t o the abortion or child birth in or der t o ins ure h er sa fe re cov ery. (d) There shall

be a two (2) day wait

ing period after

the physician provides the requi

red information,

excluding the day

on which such information was given,

and on the third day

following the day

such information was given,

the patient

may return t

o the physici

an and sign a conse nt for m. Vio latio n of this s ubse ction by a p hysic ian is a Cla ss E f elon y. Provided, however, t

hat this subs ection (d) shal l not apply

when the attendi

ng physician,

utilizi ng his experience,

judgment, or professional compet

ence, determines

that a two (2) day

waiting period or any w aiting pe riod w ould en dange r the life o f the pre gnant w oman . Such determinati on made by the att ending physician shall be in wri ting and shall sta

te his medical

reasons upon which he bases hi s opinion that the waiting period w ould enda nger the life o f the pregn ant wom an. This provision shal

l not relieve the attendi

ng physician of

his duty t

o the pregnan t woman to inform h er of the fa cts under su bsection (b ) of this section. (e) The attendi

ng physician pe

rforming or induci

ng the abortion shall provide

the pregnant woman with a dupli cate copy of t

he consent form signed by her. (f) The attendi

ng physician or

agency performing a

n abortion upon a minor of less t

han eighteen (18) y

ears of age shall

inform the parents or lega

l guardians of such mi

nor, or if t

he whereabouts of the parents cannot be det

ermined and there i s no other legal guardian than the agency or ot

her individual

to whom the child’s cus tody has been transferred,

two (2) days pri

or to the operat

ion that an abort

ion is to be perform ed upon such min or. Provide d howe ver, the prov isions of this section shal

l in no way be const

rued to mean, provide

for, or author

ize parental objec

tion to, i n any way, pre

vent or alter

the decision of t

he minor to proceed with t he abortion. Notice shall not

be required if: (1) The minor is emanci pated by marri age; or (2) The attending physician determines that,in his best medical judgment, the abortion i s necessary to preserve the

life or health of the mother

and must be performed prior to the expiration of t

he two (2) day noti

ce period. (g) The words “the phys ician” and “the at tending physi

cian” as4 used in this s ection shall mean any licensed physician on t he service treating t he pregnant woman. (h) The provisions of this section shall not apply in those situati ons where an abortion i s certified by a licens ed physicia n as necessary t

o preserve the l

ife of the pregnant

woman. In response to t

he notice of chall

enge to the consti

tutionali ty of the st

atute the Attorney General , responded:

The statutory

provision at i ssue, Section 39- 15-202(f), was delet ed by amendment in 1995 and is, acc ordingly, no longer in effect . The Attorney General

declines to defe

nd the constit

utionalit y of this r

epealed statutory provision. The Ch ancellor, in his opinion, said and we quote w ith approva l:

The plaintiff,

then a minor 17 year

s and approximately

10 months of age, contracted for an ab ortion on Septemb er 29, 1990. The statutory scheme in effect in Tennes see at the ti me provided that i

f a person was under 18 years of a

ge, that the

attending phy sician would infor m that person’s parents of the contemplat ed procedure two days

prior to the abortive procedur

e being performed on the minor . The two-day wait ing period set fort

h in subsection (d)(1) of T.C.A. 39-15- 202 applies to a pregnant woman who has been orally informed by her at

tending physician of

factors (1) t

hrough (6) and requir

es the signing of a

consent form ack nowled ging that the patient has b een advise d of the statu torily prescribed information. S ubsection (f)(1) and (2) is the on ly statutory subsection of T.C.A. 39-15-202 solely applicable to an individual l ess than 18 years o f age. It furth er appears that the statutory co nstruction in question repres ents the effort of the legislature to addres s the constitutiona l infirmities con tained in prio r legislation as it re lates to abortion ri ghts and minors. Thi s statutor y scheme was legisl

ativelyreestablish ed in 19 95 and is now provid ed in T .C.A. 3 7-10-3 01, et seq. This l egis lat ion ha s agai

n been f ound t o be con stituti

onall y in firm first for failure to properly protec t a minor’s co nfidentiality and anonymity in seeking a judicial bypass of par ental consent and secondly for failure to provid e a suff iciently ex peditiou s bypass p rocedu re. . . . See Me mphis Planned Parentho od, Inc. V. D onald Su ndquist, et al. , ___ Fed. Supp. (M.D. T enn. 1996) . It

thus appea

rs t hat both th

e Tenne ssee

Supreme Court and the United Sta tes District Court reviewed Tennesse e’s various statutory provisions as t

hey apply

to a minor’s ri

ght to terminat

e her pregnancy by

taking into cons ideration not only the provi sions regardi ng parental consent

and two-day waiti

ng period but als o consideration of the four criteria required by the United States Supreme Court in the case of Bellotti v. Baird , 443 U .S. 622 , 99 S.C t. 3035 ( 1979)

. Bellotti established the four crit eria that a j udicial by

pass procedure in a c onsent statute such as Tenne ssee’s must satisfy. The United D istrict Court found that the 1995 re- enactment failed to meet the two of the Bellotti

imposed criter

ia.5 The Court finds that Tennes see’s stat utory scheme i

nvolving abortions as it relates to a minor is so interw oven with other statutory provisions, that the Court c an not elide a pre viously decl

ared unconstitut

ional portion of a statute and de termine that

the remaining provisions ar

e constitut

ional and effecti

ve particular

ly where so many of the provisions

of the subject s tatutory scheme has been declared unconstitutional by stat e and federal courts.

. . . Further as to the issue of plaintiff’s cap acity to consen t which is predicated upon T .C.A. 39-1 5-202, the C ourt finds th at the record fails to rebut the pr

esumption of capacit

y by the pl

aintiff to sign the consent to abor tion do cume nt as a m ature m inor. See Cardwell v. Bechtol, 724 S.W.2d 7 39 (Tenn .. 1987). De fendants’ medical af fidavit is effe ctively unrebutted. A cause of a ction by pl aintiffs bas ed upon battery for failure to obt

ain informed or knowledgeabl e consent prior t

o the abortion being per

formed is not all

eged nor supported by

proper medical or othe r eviden ce. Plaintiffs ’ complaint predi cates their

cause of action upon defendants’ failure to com ply with T.C.A. 39-15-2 02(b) and (e) (battery or lack of informed conse nt and strict liabil

ity);thus, plai

ntiffs’ cause

of action rests solely

within the confine s of the provisions of T.C.A. 39-15- 202. Therefore, t

he viabilit

y of plaint

iffs cause of acti

on based on battery or lack of informed conse nt and strict liabil

ity rests upon the viability of the statu te. . . . Add itionally, T .C.A. 3 9-15-2 01, et seq. , fails to create a ci

vil cause of act

ion (although i

t does contain cr

iminal sanctions) f or failure to n otify such pare nts or guard ians and is additionall

y constit utionally unsound in that i

t fails t o provide a judicial by-pass proce dure wh ich the Un ited States sup reme Co urt manda ted in order to provid e to min ors their constitu tional gu arantee s. Bellotti v. Baird, supra at 642- 44 (19 79). Plaintiffs ap peal that part o f the decisio n holding the statute unconstitutional, the allegation of interferen ce with family relations, and the sum mary judgment as to the a

llegations

of battery

and medical malpract

ice. First, plaintiffs ar

gue that we should uphold T. C.A. 39-15-202(f) and assert that the United States Supreme Court has never expressly required a by-pass proced ure in o rder fo r a notif ication s tatute to b e valid. Citing H.L. v. Matheson , 450 U.S. 398 (1981). The Matheson Court held that i t would not entert

ain the constitu tional ch allenge to the sta tute bec ause th e plaintif f did no t have s tanding

. Id. 101 S.Ct. 1189. In Matheson Mr. Justice Powell i n a concurring opinion states the6

rule succ inctl y:

Numerous and significant interests compete when a minor decides whether or not to abor

t her pregnancy . The right to make t hat decision may not b e unco nstitution ally burde ned. Roe v. Wade , 410 U.S. 113, 154, 93 S .Ct. 705, 72 7, 35 L.Ed .2d 174 (1 973); Planned Parenthood of Central M o. V. Dan

forth , 428 U.S., at 74-75, 96 S .Ct. At 2843-2844 . In addition, the m inor has an interest in effe ctuating he r decision to a bort, if that is th e decisio n she m akes. Id. at 75, 96 S.C t., at 2844; Bellotti II , 443 U.S . at 647, 99 S .Ct., at 3035. T he State, asid e from the interest it has in e ncoura ging ch ildbirth ra ther than abortio n, cf. Maher v. Roe , 432 U.S. 464 , 97 S.Ct. 23 76, 53 L.E d.2d 484 (1977); Harris v. McR ae, 448 U.S. 297 , 100 S.Ct. 2 671, 65 L .Ed.2d 78 4 (1980), h as an interest in fostering such cons

ultation as

will assis t the minor in maki ng her decisio n as w isely as po ssible. Planned P arenth ood of Cen tral

Mo. V. Danfo rth, sup ra, 428 U .S., at 91, 9 6 S.Ct. A t 2851 ( STEW ART , J., concurring ); post, at 1178 (STEVENS, J., concurri ng in judgment). The State also may

have an interest

in the family

itself,the insti

tution though which “we inculcate and pass down m any of our most cherished values, moral and cultura

l.” Moore v. East Cleveland, 431 U.S. 494, 503-504, 97 S.Ct., 1932, 1937- 1938, 52 L.Ed.2d 531 (1977). Parents have a traditional and substant ial inter est in, as wel

l as a responsi

bility for, the rearing and w elfare o f their ch ildren, es pecially d uring im mature years. Bellotti II, supra , 443 U.S., at 637- 639, 99 S.Ct. At 3045-3046. None of these interests is absol ute. Even an adult woman’s r ight to an ab ortion is not unq ualified

. Roe v. Wade , supra , 410 U.S., at 154, 93 S.Ct., at 727.Particular ly when a minor becomes pregna nt and considers a n abortion, th e relevant circ umstance s may vary wid ely depending upon her age, matur ity, mental and physi

cal conditi on, the stabili ty of her home if s

he is not emancipat

ed, her relat

ionship with her parents , and the like. . . . In sum, a State may not validly

require notice to parents i

n all cases,without providi ng an independent decis ion maker to whom a pregnan t minor can have reco urse if she b elieves that sh e is mature enough to make the abor tion decision independently or that notification otherwise would not be in her best interests

. (Empha sis supplied). Clearly,under the Constit ution of the United St

ates and the case l

aw decisions deali

ng with this issue, it is established that the statute as written offen ds the individual’s constitut ional safeguards . Moreover, the st atute impermissibly res tricts t he individ ual’s libe rty and pri vacy inter ests und er this St ate’s C onstitutio n. See: Hawke v. Hawke , 855 S.W.2d 573 (Tenn. 1993),and Davis v. D avis , 842 S.W.2d 588 (Tenn. 1992) , cert. denied

113 S.Ct. 1259 (1 993). Next, plainti

ffs contend that t

he Trial Court err

ed in finding the7

remain ing sec tions of that statu te to be u ncons titutiona l, i.e., (a), (b) , (c), (d) an d (e).

Under th e familiar rule that we w ill only consider c onstitutional issu es if the matter may

not otherwise be re solved, we conclude t hat no private ci

vil right of action e xists for the alleg ed viola tions of the rem ainder o f the sta tute. See Roddy v. Volunteer Medical Cli

nic, Inc. , 926 S .W.2d

572 (Te nn. App . 1996 ). As the Su preme Court in Planned Parenthood Associat ion v. McWherter , 817 S.W.2d 13 (Tenn. 1991) observed , the legislature a dopted the statute as a pa rt of Chap ter 591 of th e Public Acts of 1989 when the legisl ature revised Tennessee criminal laws and sentencing procedure and this

statute i s a part of that

massive revision and includes a cri minal penalty for cer tain violations , i.e., a felony. Plaintiff s cite the 198 8 Public A ct, Chapter 929, which contai ns the following provi sion: Failure to ob tain consen t pursuant to the requirem ents of this A ct is prima fac ie evidence of failur e to obtain infor

med consent and of interference

with family r

elations i n appropriate ci

vil actions . The law of this State shall not be construed to preclude the awa rd of exemplary damage s in any appro priate civil action relevant to the violation of this Act. Nothing in thi s Act shall be const rued to limit

the common law rights of parents. They insist

that “it onl

y stands t

o reason that i

t would also be appli

cable to the si

milar issue of pa rental notifica tion”. This p rovision ha s no effica cy here. It is contain ed in another chapter of

the Code and the Court in McWherter , in discussing Tennesse e’s 1988 Parental Consent St atute and Tennessee’ s 1989 Parental Notification Stat ute, held that the

two statutes were i

n “direct confl

ict” and observed at

page 15: Despite the absence o f an explic it repealer bill, there can be little question about t

he legislat

ive intent wit

h regard to the t

wo conflicting statutes i nvolved here. . .. Because of an irre concilable confl

ict between the revisi ons of the 1988 Parental Consent Statute . . . and those of t he 1989 Pa rental Notif ication Statute . . . the latter Statute h as effective ly repeale d the fo rmer by im plication

. . . . The Rule relating t

o whether a private c ause of action is created by a statute i s stated in 73 Am.Jur .2d §432, p. 530:

In this respec t, the general ru le is that a statute w hich does not purpo rt to8 establish a civ il liability, but merely mak es provision to secure the safety or welfare of the publ

ic as an entit

y, is not subject to a construction esta blish ing a civil liabi lity. Under the test we set

forth in Bucke r v. Car lton, 623 S.W.2d 1 02 (Tenn. Ap p. 1981), we conclude that the l

egislatur e did not create

a private right of action for da mages, as it relat es to the remaini

ng sections of the

Act. This is re

inforced when the remainder of the Statu te is considere d indepen dent of the provision w hich we h ave held unconstitut

ional. The gravamen of t he complaint as t

o both plainti

ffs is the viol

ation of the statut

ory provisi

on requiring pare

ntal notice

. As to the claims of bat

tery and medica

l malpractice, defendant doctor submitted an unreb utted affidavit stating that he wa s familiar with the standard o f care applicable t

o the procedure perfor

med, and at all r

elative t imes exercised car

e required under that st

andard. No affidavit

was filed in rebut

tal of the doct

or’s affidavi

t, and

summ ary judgm ent wa s appro priate on the issue of me dical m alpractic e.

As to the re maining iss ue of batte ry, the affidavits f iled by defen dants present evid ence that the plaintiff w as a mature minor, and no coun tervailing aff idavit disputes thi s evidence. The Supreme Court i n Bechtolteaches that a minor fourteen years of a ge or ol der is pre sumed to have the cap acity to co nsent to treatme nt. Id. at 745. This presumption is not rebutt ed on this record,

and indeed is rei

nforced by the affidavits f iled by defen dants. Bef ore leaving this issue, we point to our d ecision in Roddy at page 576, where we said:

Determining whether defendant failed to obta

in informed consent fr

om Ms. Roddy is dependent upon t he standard of care of t

he profession or specialit y. If i nformed consent is not

effectively

obtained, the defendant’s depart

ure from the standar

d of care is not negl

igence, but battery , because the doct rine of batter

y is appli cable to cases i

nvolving treatme nt perfo rmed w ithout in forme d or kn owled geable consen t. Malpractice is based on the lack of car e or skill i

n the performance of services contracted for, and battery is predicated upon wrongful trespass on the pers on, regardle ss of the skill e mployed. T he assertion of one is the den ial of the other. . . . (Emphasis supp lied). For the foregoing re asons, we affirm the j udgment of the Trial Court and9

remand a t appellants’ c ost.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Don T. McM urray, J.

_( Separate Conc urring Opinion) Houston M. Godd ard, P.J.

# FILED

February 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION

TERESA McGLOTHLIN and ) KATHY HELTON ) ) Appellants ) ) v . ) ) BRISTOL OBSTETRICS, ) SULLIVAN COUNTY GYNECOLOGY and ) 03A01-9706-CV-00236 FAMILY PLANNING, INC. ) ) and ) ) DR. GARY BOYLE ) ) Appellees )

CONCURRING OPINION

Goddard, P.J.

I concur in the opinion authored by Judge Franks. I write separately to point out that judges are always required to follow the law as pronounced by superior courts, but they are not required to agree with those pronouncements.

_______________________________1 1 Houston M. Goddard, P.J.