ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT
HINKLE, District Judge.
This action arises from a state court's order compelling plaintiff Laura L. Pemberton,
Ms. Pemberton asserts the procedure was not medically necessary. She claims the physicians who rendered opinions that the procedure was medically necessary (and for whose actions the hospital has accepted responsibility), as well as the hospital itself, acted under color of state law. Ms. Pemberton claims the hospital and physicians violated her substantive constitutional rights and her right to procedural due process. Ms. Pemberton also alleges Florida common law theories of negligence and false imprisonment. Concluding that Ms. Pemberton's constitutional rights were not violated and that the hospital and physicians were not negligent, I grant summary judgment in favor of the hospital.
Ms. Pemberton delivered a prior baby in 1995 by caesarean section. Most caesarian sections are performed using a horizontal incision. Ms. Pemberton's 1995 caesarian, however, was performed using a vertical incision. Moreover, the vertical incision extended well beyond a traditional low vertical incision up into the thickened myometrium. The nature of this caesarean presented a greater risk of uterine rupture during any subsequent vaginal delivery than would be the case with a more typical caesarean section.
When she became pregnant again in 1996, Ms. Pemberton attempted to find a physician who would allow her to deliver vaginally. She was unable to find any physician who would do so. Every physician she contacted advised her that, because of the type of caesarean section she had undergone previously, vaginal delivery was not an acceptable option.
Undeterred, Ms. Pemberton made arrangements to deliver her baby at home, attended by a midwife, without any physician attending or standing by and without any backup arrangement with a hospital. On January 13, 1996, after more than a full day of labor, Ms. Pemberton determined she needed an intravenous infusion of fluids; she had been unable to hold down food or liquids and was becoming dehydrated. She went with her husband, plaintiff Kent Pemberton, to the emergency room of defendant Tallahassee Memorial Regional Medical Center ("the hospital"), where she requested an IV.
Ms. Pemberton first saw a family practice resident on call for obstetrics, who brought the case to the attention of Dr. Wendy Thompson, a board-certified family practice physician whose practice included obstetrics. Dr. Thompson advised Ms. Pemberton that she needed a caesarean section. Ms. Pemberton refused, saying she wanted only an IV so she could return home to deliver vaginally. Dr. Thompson declined to assist in that plan by ordering only an IV and instead notified hospital officials of the situation. Hospital officials set about securing additional opinions from board certified obstetricians Dr. A.J. Brickler and Dr. David R. O'Bryan, the chairman of the hospital's obstetrics staff. Dr. Brickler and Dr. O'Bryan each separately concurred in the determination that a caesarean was medically necessary. Meanwhile, the Pembertons left the hospital against medical advice, apparently surreptitiously.
The hospital set in motion a procedure devised several years earlier (and used once previously) to deal with patients who refuse to consent to medically necessary treatment. The hospital called its long-time attorney, John D. Buchanan, Jr., who in turn called William N. Meggs, the State Attorney for Florida's Second Judicial Circuit, where Tallahassee is located. Mr. Meggs, who had the responsibility under Florida law to institute any court proceeding seeking to compel a medical procedure
Judge Padovano went to the hospital and convened a hearing in the office of hospital Senior Vice President and Chief Medical Officer Dr. Jack MacDonald. In response to the judge's questions, Drs. Thompson, Brickler and O'Bryan testified unequivocally that vaginal birth would pose a substantial risk of uterine rupture and resulting death of the baby.
Judge Padovano ordered Ms. Pemberton returned to the hospital. Mr. Meggs and a law enforcement officer went to Ms. Pemberton's home and advised her she had been ordered to return to the hospital. She returned to the hospital by ambulance against her will.
Judge Padovano then continued the hearing in Ms. Pemberton's room at the hospital. Both she and Mr. Pemberton were allowed to express their views. The judge ordered that a caesarean section be performed.
Dr. Brickler and Dr. Kenneth McAlpine performed a caesarean section, resulting in delivery of a healthy baby boy. Ms. Pemberton suffered no complications.
In due course, Mr. Buchanan prepared a written petition setting forth the claim for relief previously submitted orally and a proposed order. Judge Padovano entered the order on February 2, 1996. Ms. Pemberton did not appeal.
Ms. Pemberton now seeks in this federal court an award of damages against the hospital. She has not named the physicians as defendants because the hospital has agreed, for purposes only of the claims at issue in this lawsuit, that the physicians acted as agents of the hospital, thus allowing entry of a judgment against the hospital for any claim established against any or all of the physicians.
Ms. Pemberton claims that the forced caesarean violated her substantive constitutional rights and that the procedure that led to entry of the order violated her right to procedural due process. She seeks relief under 42 U.S.C. § 1983 and, alleging conspiracy, under 42 U.S.C. § 1985. Ms. Pemberton also alleges common law negligence, in effect, medical malpractice, as well as false imprisonment arising from her forced return to the hospital. Mr. Pemberton joins as a plaintiff alleging loss of consortium.
The hospital has moved for summary judgment. For the reasons that follow, I grant the motion.
I. SUBSTANTIVE CONSTITUTIONAL RIGHTS
Ms. Pemberton invokes a variety of theories in support of her claim that requiring her to undergo a caesarean section was unconstitutional. She asserts a right to bodily integrity, a right to refuse unwanted medical treatment, and a right to make important personal and family decisions regarding the bearing of children without undue governmental interference. She also invokes her right to religious freedom, although she does not specifically delineate the belief she says was violated or specifically identify its religious mooring.
All of these are important interests of constitutional dimension. With the exception of religion, the Constitution does not explicitly address these various interests, but their constitutional stature has been recognized repeatedly.
Recognizing these constitutional interests, however, is only the beginning, not the end, of the analysis. Ms. Pemberton was at full term and actively in labor. It was clear that one way or the other, a baby would be born (or stillborn) very soon, certainly within hours. Whatever the scope of Ms. Pemberton's personal constitutional rights in this situation, they clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child.
This is confirmed by Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). There the Court recognized the state's increasing interest in preserving a fetus as it progresses toward viability. The Court concluded that by the point of viability — roughly the third trimester of pregnancy — the state's interest in preserving the life of the fetus outweighs the mother's own constitutional interest in determining whether she will bear a child.
The balance tips far more strongly in favor of the state in the case at bar, because here the full-term baby's birth was imminent, and more importantly, here the mother sought only to avoid a particular procedure for giving birth, not to avoid giving birth altogether. Bearing an unwanted child is surely a greater intrusion on the mother's constitutional interests than undergoing a caesarean section to deliver a child that the mother affirmatively desires to deliver.
Ms. Pemberton of course does not explicitly argue that her interest in avoiding a caesarean was greater than the baby's interest in living. Merely to state such a proposition is to refute it.
Ms. Pemberton does assert, however, that what was at stake was not the baby's interest in living, because, she says, vaginal delivery did not pose an appreciable risk of the baby's death as the doctors claimed. She says she could and would have delivered her baby vaginally without harming him in any way.
The medical evidence belies Ms. Pemberton's bravado. The evidence is this. After a caesarean section of the type Ms. Pemberton previously had undergone (that is, a caesarean involving a vertical incision extending well beyond a traditional low vertical incision up into the thickened myometrium),
The record includes testimony of six physicians on this subject. Five — those whose testimony has been offered by the hospital
In response, Ms. Pemberton offered the affidavit of a sixth physician, Dr. Marsden G. Wagner.
Moreover, Dr. Wagner's analysis assumes a delivery in a hospital attended by a physician. In fact, however, Ms. Pemberton was in the process of attempting vaginal delivery at home without a physician either participating or standing by. Prior to attempting to deliver vaginally at home, Ms. Pemberton was unable to locate a single physician willing to attend the birth; this shows just how widely held was the view that this could not be done safely. Ms. Pemberton's request to the hospital was not that she be allowed to deliver vaginally at the hospital but instead that the hospital provide an IV so that she could return home to deliver there.
Because of the very substantial risk that the course Ms. Pemberton was attempting to pursue would result in the death of her baby, requiring her to undergo an unconsented caesarean section did not violate her constitutional rights.
II. PROCEDURAL DUE PROCESS
Ms. Pemberton also claims she was denied procedural due process. This claim is unfounded on the merits and in any event would provide no basis for relief in this court.
First, the merits. The state judge afforded Ms. Pemberton notice and an opportunity to be heard prior to ordering performance of the caesarean section. She and Mr. Pemberton took the opportunity and were in fact heard by the court. Under the circumstances, this was all the process that was feasible. The baby's birth was imminent; convening a full adversary hearing with greater advance notice would have been impossible. The notice and opportunity to be heard that the Pembertons in fact received thus constituted all the process that was due. See, e.g., Goss v. Lopez, 419 U.S. 565, 581-82, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975) (recognizing that Due Process Clause does not invariably require full adversary hearing but that more limited process may be sufficient in given circumstances); Nash v. Auburn Univ., 812 F.2d 655, 660 (11th Cir.1987) (noting that "[w]hat process is due is measured by a flexible standard that depends on the practical requirements of the circumstances"); Fed.R.Civ.P. 65 (recognizing court's ability to enter emergency order with less than full adversary hearing and even, in appropriate circumstances, without notice).
Second, this court would in any event have no authority to review the procedures
III. PROFESSIONAL NEGLIGENCE
Ms. Pemberton also asserts that the physicians were negligent in rendering their opinions concerning the risks of vaginal birth and that the hospital was negligent in admitting these physicians to its medical staff and relying on their opinions.
Physicians owe their patients the duty to use reasonable care. Reasonable care on the part of a physician is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful physicians, that is, the prevailing professional standard of care. See, e.g., § 766.102, Fla. Stat. (1997); Fla. Standard Jury Instructions (Civil) § 4.2a.
In the case at bar, the duty of the treating physicians extended not only to the actual performance of the caesarean section but also to the diagnosis, advice and information that they provided. Making a diagnosis, advising the patient of options, and informing the patient of risks are part of the services that physicians have a duty to perform with appropriate care.
The hospital asserts, however, that Ms. Pemberton did not voluntarily seek care from the hospital or physicians, was therefore not a "patient" to whom they owed any duty, and in any event did not rely on the physicians' advice. Thus, says the hospital, Ms. Pemberton would have no claim against the physicians (or the hospital on their behalf) based on the advice they gave, even if the advice was rendered negligently. I disagree.
A physician's duty with respect to advice and information extends not only to the actual patient but, in appropriate circumstances, to the person who makes the treatment decision on the patient's behalf. When the patient is a competent, consenting adult, the duty is to use due care in providing advice and information to the patient. But when someone else — a parent or guardian, for example — is responsible for making the relevant medical decision, the physician's duty surely encompasses the advice and information provided to that person. I assume, for purposes of this decision, that when the decision maker is the state court, the treating physician's duty to use due care in providing advice and information is the same.
When a patient presents at a hospital emergency room, a hospital ordinarily acts reasonably when it relies on the medical advice of appropriate physicians. Dr. Thompson, who first determined that Ms. Pemberton needed a caesarean section, was board certified in family practice and routinely treated obstetrics patients. Ms. Pemberton has cast not the slightest doubt on her credentials or competence. When Dr. Thompson said Ms. Pemberton needed a caesarean section to avoid an unacceptable risk of death or injury to the baby, the hospital did precisely what it should have done: it invoked the legal process. The hospital also took the additional and quite reasonable step of securing additional medical opinions from board certified obstetricians Dr. Brickler and Dr. O'Bryan. Again, Ms. Pemberton has cast not the slightest doubt on the credentials or competence of these physicians.
In invoking the legal process, the hospital again proceeded reasonably, relying on the advice of its duly licensed and fully competent attorney. The hospital ultimately took no action except as ordered by the state court on petition fully approved by the State Attorney.
That leaves for analysis the advice provided by the physicians. The uncontradicted evidence in this record is that the physicians' advice was correct in all material respects. They have testified that a vaginal birth in these circumstances would have presented a substantial risk of uterine rupture and resulting death of the baby, as well as a substantial risk to the health of the mother. Dr. Wagner's testimony is not to the contrary. He too acknowledges that a vaginal birth would have presented a substantial risk of uterine rupture, death of the baby, and danger to the mother. And there is no evidence contradicting the seemingly obvious conclusion that attempting vaginal delivery at home posed unnecessary risk.
To be sure, Dr. Wagner disagrees with the other physicians concerning what level of risk is "acceptable," and she quantifies the risk as slightly lower — a two percent risk of rupture and resulting 50 percent risk of death of the baby, as compared to a four to six percent risk of rupture and resulting near certain death — but there is no indication these numbers were given to or asked for by the state court judge who made the decision. Dr. Wagner says a one percent risk of the baby's death (calculated
The hospital, physicians who considered the matter on the night at issue, and ultimately the state court were faced with a mother who had decided to deliver her baby vaginally at home. Ms. Pemberton's own expert now places the risk of the baby's death from attempted vaginal delivery in a hospital at one percent. As is uncontested, the risk of death from attempted vaginal delivery at home would have been higher. With little time to act, the physicians gave what they believed, and still assert, was correct advice. Regardless of whether the actual risk of the baby's death was one percent or six percent or 60 percent, the risk was substantial, as the physicians testified at the time. The advice that the risk of death was substantial was not negligent.
Had Dr. Wagner been available to attend an attempted vaginal delivery in a hospital where he had privileges, the state court almost surely would have allowed him to do so. This hospital and these physicians would surely have been pleased not to be involved. But Ms. Pemberton had found neither Dr. Wagner nor any other physician who believed vaginal delivery could be attempted safely. Ms. Pemberton was proceeding at home without medical care or backup. This hospital sought opinions of three qualified physicians on its medical staff; they rendered unassailable opinions that there was a substantial risk the baby would die if a vaginal delivery was attempted; and the hospital submitted the matter to the state court based on the best (and only) medical evidence then available.
In short, Ms. Pemberton has presented insufficient evidence to support her claim that the hospital or physicians were negligent. The hospital has established the contrary and is entitled to summary judgment.
IV. FALSE IMPRISONMENT
Finally, Ms. Pemberton alleges that her transportation from her home to the hospital against her will pursuant to the state court's order constituted false imprisonment. This theory adds nothing to Ms. Pemberton's other claims. Any order requiring a patient to submit to a procedure against her will necessarily restrains the patient's movement; if the order is valid, the restraint is not false imprisonment. That Ms. Pemberton was moved across town, rather than across the hospital, does not change the analysis. In any event, if a patient can be and is lawfully ordered by a court to submit to a procedure, the patient obviously cannot nullify the court order by simply leaving the hospital. Bringing Ms. Pemberton back to the hospital pursuant to court order was not false imprisonment.
Because Ms. Pemberton's constitutional rights were not violated and the hospital and physicians on its medical staff were not negligent,
IT IS ORDERED:
The motions of defendant Tallahassee Memorial Regional Medical Center, Inc. for summary judgment (documents 83 and 102) are GRANTED. The clerk shall enter judgment providing, "All claims are dismissed with prejudice." The clerk shall close the file.