Whitman v. Mercy-Memorial Hospital ( 1983 )

Hood, J.

Plaintiffs appeal from a denial by the trial court of an injunction which would have ordered defendant hospital to allow the presence of plaintiff Coch in the delivery room during the birth of his and plaintiff Karen Whitman’s child. Since the relief sought has been rendered moot by the subsequent birth of the child, a review of the facts and the proceedings is instructive as to why the Court chooses to deal with the issue presented.

Plaintiffs filed in May, 1982, a petition seeking injunctive relief, asking that defendant hospital be prohibited from excluding plaintiff Coch from its delivery room during the birth of a child expected on or about May 22, 1982, by plaintiff Whitman. Coch was the acknowledged father of the expected child. Although the plaintiffs were not married, Coch resided with Whitman and her son from a prior marriage and supported them, and the plaintiffs considered themselves "a family unit”.

Plaintiffs had attended a natural childbirth course together and had received the attending physician’s permission for Coch’s presence during Whitman’s labor and delivery at defendant hospital, which was the only hospital in Monroe County equipped for the delivery of babies. The hospital refused to permit Coch’s presence in the delivery room because he was not a husband nor a member of Whitman’s "immediate family”. The hospital relied upon its written policy that limits a delivering mother to one nonmedical support person who must be a member of the mother’s immediate family. Plaintiffs claim that the hospital’s action and policy violate the Elliott-Larsen Civil Rights Act, 1976 PA 543; MCL 37.2101 et seq.; MSA 3.548(101) et seq.

The trial judge, after a hearing, denied plaintiffs’ request for injunctive relief and dismissed their action. A panel of this Court then granted plaintiffs leave to appeal, and entered an order prohibiting defendant hospital from enforcing, as to plaintiffs, its policy of excluding any but the patient’s "immediate family”.

Plaintiffs’ child, a baby girl, was born by Caesarean section at the University of Michigan Women’s Hospital in. Ann Arbor, Michigan, on June 30, 1982. Plaintiff Coch was present in the delivery room. Thus, while this dispute is, as has been indicated, technically moot, the issue involved is of public significance and likely to recur in the future. We therefore conclude that it should be decided by this Court. Colombini v Dep’t of Social Services, 93 Mich App 157, 161; 286 NW2d 77 (1979).

The defendant’s policy states that an "authorized participant” may be present in the delivery room only under the following conditions:

"A. The mother to give birth requests to have the authorized participant present during the delivery;

"B. The attending physician consents to the authorized participant’s presence during delivery after satisfying himself/herself that preparation of the authorized participant is adequate;

"C. Admission of the authorized participant to the delivery room will only be considered when the mother is going to be awake; that is, the mother will be receiving, for the delivery, a local, spinal, epidural or caudal anesthetic and will not be in an unconscious or uncommunicative state due to medications or otherse;

"D. The authorized participant will leave the delivery room at the request of attending physician, anesthetist or nurse when in the judgment of the attending physician, anesthetist or nurse the presence of the authorized participant is or would be contrary to the best interest, welfare, safety or privacy of the mother, baby or other patient(s);

"E. The authorized participant may not enter the Delivery Room before the attending physician;

"F. While in the Delivery Room, the authorized participant will wear clothing which conforms to that worn by professional people in the room and will remain seated at the head of the delivery table;

"G. The authorized participant requests to be present in the Delivery Room by means of formal Request To Be Present for Birth-Acknowledgement and Assumption of Responsibility.

"H. The authorized participant will submit written evidence that he/she has completed an approved prenatal childbirth preparation course with the mother.”

The defendant’s policy also defines an authorized participant as "a husband or a member of the immediate family of the mother giving birth”. In the "Request To Be Present” form which each "authorized participant” must submit, he or she must agree to:

"Assume all responsibility and risk for any adverse mental, emotional and/or physical effects which may result that in any manner arise from my presence and observations in the Delivery Room for the contemplated birth.”

The request must be signed by the "participant” and the mother’s attending physician.

Plaintiffs met each and every one of the defendant’s requirements, except that Coch was not Whitman’s husband or a member of her "immediate family”. Therefore, the question we must answer is whether the hospital’s policy as applied to Coch was impermissibly discriminatory. We conclude that it was.

The Elliott-Larsen Civil Rights Act provides that:

"Except where permitted by law, a person shall not:

"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of * * * marital status.” MCL 37.2302(a); MSA 3.548(302)(2).

A "place of public accommodation” includes a health institution "whose * * * services are offered * * * or * * * made available to the public”. MCL 37.2301; MSA 3.548(301). Had plaintiffs Whitman and Coch been married to one another, it is clear that under defendant’s policy Coch would have been permitted into the delivery room as Whitman’s nonmedical support person. Therefore, defendant’s policy clearly violated the above statutory provision against discrimination on the basis of marital status.

We also reject the defendant’s argument that its policy is protected by the Public Health Code, §21513, MCL 333.21513(a); MSA 14.15(21513)(a), which makes the hospital’s governing body "responsible for all phases of the operation of the hospital * * * and quality of care rendered in the hospital”. MCL 333.21511; MSA 14.15(21511) provides that each hospital must be licensed under the code, and MCL 333.20152; MSA 14.15(20152) provides that each licensee should certify to the Department of Health as a part of its application that "[a]ll phases of its operation * * * comply with state * * * laws prohibiting discrimination”. It is therefore clear that hospitals are not exempted from the mandates of the Elliott-Larsen Civil Rights Act.

Defendant also argues that the decision regarding whom to permit into the hospital’s delivery rooms is a discretionary medical one and the limitations it has established, although they exclude the unmarried fathers of delivered children, are rationally related to medical goals.

There is indeed authority for the proposition that a hospital’s policy regarding nonmedical support persons in delivery rooms is purely discretionary and involves no constitutional rights. See Fitzgerald v Porter Memorial Hospital, 523 F2d 716 (CA 7, 1975), cert den 425 US 916; 96 S Ct 1518; 47 L Ed 2d 768 (1976); Hulit v St Vincent’s Hospital, 164 Mont 168; 520 P2d 99 (1974). Defendant, how-, ever, unlike the hospitals involved in Fitzgerald and Hulit, has not excluded all nonmedical support persons. It has determined that each maternity patient may have one nonmedical person to support her during labor and delivery. Having established such a policy, defendant must administer the program in a nondiscriminatory manner.

We also reject defendant’s assertion that its policy does not in fact discriminate on the basis of marital status because married persons and unmarried persons alike may only be accompanied by a relative. This argument completely ignores the fact that a married woman has one relative that no unmarried woman has: a husband.

Finally, defendant’s recitation of the plethora of possible untoward results of disallowing its policy is speculative at best. We note that the other requirements in the defendant’s policy are well designed to screen out those persons who are not bona fide in their relationship to and intent to aid and support the mother and her baby.

Reversed.

Mackenzie, P.J., concurred.