17 minute read
Is Your Tennessee Teen a Mature Minor?
Tennessee children are legally allowed to make a variety of medical decisions for themselves. A teen has the right to be treated for a sexually transmitted disease without parental consent.1 A child may seek prenatal care without a parent’s knowledge or consent.2 A teen may also be able to make mental health care decisions, including taking medication, without his or her parent’s knowledge or consent.3 This specific decision-making authority is provided by statute. While the common law rule requires parental consent for a child to obtain medical treatment, these legislative exceptions follow the general theory that public and individual health concerns, and to some degree autonomy over one’s own body, override the necessity for parental consent.
Another doctrine of medical decision making has recently garnered significant media attention: the “Mature Minor” doctrine. This doctrine creates a presumption that mature teenagers can make medical decisions, and consent to treatment, for themselves. The availability of COVID vaccines for children over age 12 raised questions about the application of the Mature Minor doctrine in Tennessee. This doctrine does not undermine the parent-child relationship; instead, it has long ensured medical providers’ ability to make the best decisions for their patient: the child. The doctrine works in conjunction with the other statutes giving minors medical decision-making authority.
The seminal case: The Mature Minor doctrine was first articulated in Cardwell v. Bechtol 724 S.W.2d 739 (Tenn. 1987) when Dr. Bechtol, a blind but licensed osteopath, treated Sandra Cardwell, a minor, for back pain without her parents’ consent. Sandra, with her parents’ knowledge and support, had received a diagnosis from another physician that a herniated disk caused her back pain. Surgery was recommended, but Sandra and her parents wanted to avoid surgery.
A month following the surgery recommendation, Sandra left school early in her mother’s car to see her family physician for treatment of a sore throat. She spontaneously decided to visit Dr. Bechtol, who she knew had treated her father for his back pain. She did not tell her parents or ask their permission. Due to his blindness, Dr. Bechtol limited his treatment of patients to manipulative treatments to adjust or realign the skeletal system. Sandra told Dr. Bechtol that her father was a patient and explained why she was there. Dr. Bechtol, alone in his office, listened to Sandra’s list of symptoms and the diagnosis of the specialist she had seen. After a brief examination he concluded that she did not have a herniated disk. He treated her briefly with neck, spine and leg subluxation. Sandra experienced severe pain the remainder of the day and was hospitalized, ultimately undergoing a laminectomy. She subsequently suffered bladder and bowel retention, difficulty walking, and decreased sensation in her legs and buttocks that persisted at trial.
Dr. Bechtol was sued for medical malpractice, battery (failure to obtain parental consent), negligent failure to obtain
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10 Things You Don’t Know About 2022 NBA President, Martesha L. Johnson
We had the opportunity to talk with our new NBA president to get to know her better. We are excited about her leadership this year.
Which living person do you most admire?
Stacey Abrams-her continued dedication to the causes of equity and voter rights, despite many obstacles, is inspiring.
What is your current state of mind?
Despite all of the seeming craziness of the world, I am doing well. The pandemic has been tough but it has also required me to sit with myself and be mindful of the things I need for self-care. My focus for the moment is practicing intentional self-care. I’ve been blessed with so many opportunities, and while I am incredibly thankful I am also incredibly busy. Juggling leadership and motherhood/family can be overwhelming, so my current challenge is to find ways (even small ones) to reflect and renew. Self care is the best gift we can give ourselves!
What do you consider the most overrated virtue?
Patience, probably because it’s the most challenging one to exhibit at times.
Which talent would you most like to have?
I would love to master ballet en pointe. However, with my knees, I’ll probably stick to admiring this beautiful art from afar.
What do you consider your greatest achievement?
My greatest achievement to date has been choosing to face my fears and step out into my leadership calling. Though I enjoy trial work (and a good debate), I am very introverted and extremely hard on myself. When the opportunity to be the public defender presented itself, my fear almost kept me from achieving my goal. I’m super proud of myself for saying yes when my insecurities said no!
What is your most treasured possession?
My most treasured possession is my Aquaphor!!! I never leave home without it. (I am obsessed with moisturizing…) No, seriously, my most treasured possessions are the clothes I brought my children home from the hospital in.
What do you most value in your friends?
I value the freedom to just “be!” My friends just get me. Their loyalty, love, and laughter are critical parts of my life. I always look forward to girls night!
Who are your favorite writers?
I’ve loved Mildred Taylor’s books since childhood, Ta-Nehisi Coates, and Maya Angelou.
Who are your heroes in real life?
Moms (specifically my Mom) and the public defenders I get to work with everyday.
What is your motto?
Live. Love. Laugh.
Battle of the Pros iPad Pro 12.9 vs iPad Pro 9.7
We love to buy gadgets as soon as they hit the market. We are fully aware that you pay extra for being an early adopter. Guess we enjoy being broke (and also being the first kids on the block with the new toy). So, it should come as no surprise that we bought Apple’s big screen 12.9 iPad Pro as soon as it hit the market.
The iPad Pro 12.9
We must admit, we were a bit disappointed when we started fooling with it. Yes, the iPad Pro 12.9 was the biggest, fastest Apple tablet ever made. You can buy a really nice keyboard to go with it, and we did. You can also buy a pressure-sensitive stylus/pencil to take notes, sketch, and really create great art. We bought that too. The giant screen is beautiful, and the quad speakers are incredible. The large screen really works well with split screen apps that are now available in the new iOS 9 series. You can watch movies on the right-side of your screen and edit documents on the left, for example. In other words, you can play and work at the same time; which we don’t necessarily recommend but do occasionally enjoy.
But, we were not as overjoyed with our new pricey toy as we thought we would be. First, by the time we added additional storage, a cellular modem, a Bluetooth keyboard, and the pencil, the price tag was creeping up north of $1,200. For that price we could buy a very nice fully functional laptop (keyboard included). In addition, the large size makes the iPad Pro 12.9 seem less portable. Its size almost defeats the pur-
consent, and failure to obtain informed consent. At the conclusion of the proof, the malpractice case was dismissed. The remaining issues were sent to the jury with the Dr. Bechtol’s requested instruction regarding the mature minor pose of having an iPad. (At least we felt exception to the requirement of paren- that way after we bought it.) tal consent. A verdict was returned for The 12.9” display is so large you Dr. Bechtol. The appeals court reversed really need to carry it in a laptop bag, on the issue of battery, ruling that there and it just does not have the portable, was no statute or case law to rebut the compact feel that made the original iPad established common law rule that a and its successors so popular. So, while physician cannot treat minors without the iPad Pro 12.9 is powerful and has parental consent. Dr. Bechtol appealed. a great deal of potential—especially for
The proof had established that graphic designers and media creators— Sandra was a seventeen-year-old high it is not a laptop killer in our opinion. school senior at the time of treatment, was considered a very mature child by The iPad Pro 9.7 her parents and others, was allowed to We’re not sure if the Apple execs heard go to her family doctor alone for treat- our complaints about the 12.9 iPad Pro, ment, was often entrusted with the fam- but we took it as a nod in our direction ily vehicle, and was planning to attend when they subsequently announced a college. She testified that she was not smaller iPad Pro, the 9.7. Gadget nerds treated against her will. Dr. Bechtol like us and our money are soon parted. testified that generally parents would So, when the new iPad Pro 9.7 became accompany minors when they came available, we had to buy one immediateto him for treatment. Based upon her ly, as well. And, as usual, we were excitstatements and conduct, he believed ed in anticipation of delivery of our new her to be of age and that further inquiry gadget. We were certain that the new, was not necessary. smaller iPad would be more portable
The Plaintiffs argued that because and more in line with the iPads we had the legislature had addressed medical come to know and love, while providing treatment of minors in some contexts all the “Pro” advantages. Unfortunately, without parental consent but had not we had become spoiled. enacted a statute to address the spe- After using the iPad Pro 12.9, the cific issue at hand, the law of the State screen on the 9.7 seemed tiny (yes, we required parental consent.4 know we complained that the 12.9 was too
In this case of first impression, our big; forgive us for being tech divas). With Supreme Court disagreed. Tennessee the 9.7 we began to feel like we were just is a common law state they opined, “… looking at an iPhone screen. In fact, it was however, judicial development of the very hard to tell the difference between common law is not arrested by piece- a regular iPad or iPad Air 2 and the iPad meal legislative adoption of specific Pro 9.7. Yes, the iPad Pro 9.7 has a faster, statutory exceptions to a general com- more power processor than the iPad Air mon law rule.” 2. Yes, Apple has updated the iPad Pro
The Rule of Sevens: The Court recognized that minors achieve varying degrees of maturity and responsibility, and this understanding had been part of the common law for over a century. The rule of capacity has been sometimes known as the Rule of Sevens: a child under the age of seven has no capacity; a child between seven and fourteen has a rebuttable presumption of no capacity; a child between age fourteen and twenty-one has a rebuttable presumption of capacity.5
In determining that Sandra had capacity to consent, the Court noted, “[a] minor acquires capacity to consent at different stages in his development. Capacity exists when the minor has the ability of the average person to understand and weigh the risks and benefits.”
Adopting the Doctrine: The Court reasoned that the Mature Minor doctrine was consistent with the evolution of the common law and violated no legislative policy. Since the presumption was rebuttable there was little chance “the exception will swallow the rule.” The Court made clear that absent a specific statute allowing or prohibiting certain medical treatment, whether a child is a mature minor is a decision that will be made by the health care provider and will depend upon the child’s age, ability, level of maturity, conduct at the time, the nature of the potential treatment and its risks, the child’s ability to appreciate the risks and consequences, and other facts specific to the child’s situation.
On the Horizon: As the Delta variant surged in the fall of 2021, schools struggling to reopen safely for in-person learning implemented mask mandates as a critical safety protocol. These masking requirements generated ferocious controversy which garnered national attention as Tennessee parents loudly voiced their opinions. The government responded swiftly – first with Governor Lee’s Executive Order, allowing parents to opt out of school mask requirements, and later with a special session resulting in legislation prohibiting mask requirements in schools except under “severe conditions” during a Governor declared COVID emergency. The Governor contemporaneously ended the COVID-19 state of emergency in Tennessee and it has not been reinstated despite another surge in illness due to the Omicron variant.
Tennessee’s new legislation was promptly challenged by parents of public-school students with disabilities citing failure to comply with the Americans with Disabilities Act, and the State is currently temporarily blocked from preventing schools from issuing mask mandates. The State has appealed the preliminary injunction and temporary restraining order to the U.S. Court of Appeals for the 6th Circuit.
It is unclear whether Tennessee’s new law, if upheld, would allow mature minors to don a mask absent parental consent, or, whether parents could prohibit their mature minor from wearing a mask (at school or elsewhere), although under a public and personal safety analysis the answer would seem to be that a mature minor could make her own decision.
Cardwell remains good law today. In the political uproar over the implications of the Mature Minor doctrine this year, there was little discussion of the requirement that physicians must consider the circumstances of each patient individually. Not every teenager will qualify as a “mature minor.” But there
cameras. Yes, you can take great selfies and great pictures with the high-resolution camera that comes with it. Yes, you can even record videos in 4k resolution.
Nevertheless, for just regular users it is very hard to tell the iPad Pro 9.7 apart from the iPad Air. The displays are nearly identical. They run the same software. They use the same apps. There just does not seem to be a great advantage to having an iPad Pro 9.7 versus having a regular iPad (especially the sleek iPad Air 2).
iPad Pro 12.9 v. iPad Pro 9.7
Returning to the comparison of the iPad Pro 12.9 to the iPad Pro 9.7 (yes, we got a bit sidetracked), we believe the iPad Pro 12.9 is actually a superior product. The high resolution and the four-speaker system take greater advantage of the faster processor and superior display on the iPad Pro models. In addition, you have more screen real estate to use the split screen feature that is bundled into iOS 9—now 9.3.1. Of course, you can use the split screens feature on any iPad, but it just works better on the larger screen. Th e bottom line is that while the 12.9 iPad Pro is a bit more cumbersome to carry, you get spoiled once you have used the larger screen. You do not want to return to a smaller iPad model. So, in our opinion, the iPad 12.9 is the winner (but barely) over the iPad Pro 9.7 or just a regular iPad. But, here is a word to the wise and thrifty. If you are not a spendthrift like us, our best advice is to buy neither “Pro” model and stick with an iPad Air 2. Save your money.(continued on page 33)
are likely many sophisticated, intelligent, independent teens who would be judged capable of making their own medical decisions, including vaccinations. It is important to understand the nuances and reasoning behind the mature minor doctrine and how it allows health care providers to maintain the highest standard of care. n
CYNTHIA C. CHAPPELL most recently served as Chair of the NBA CLE Committee. She regularly handles criminal charges, orders of protection hearings, contempt hearings, and matters that arise when a civil case involves the criminal justice system. She is a Fellow of the Tennessee and Nashville Bar Foundations. A three-time recipient of the Best of the Bar in family law by the Nashville Business Journal, Cindy is also an Emeritus member of the Harry Phillips Inns of Court.
JOSHUA BRAND’s practice frequently includes the intersection of criminal, family, and civil law. He is a fellow of the Nashville Bar Foundation. When he’s not helping people, you can find him playing the banjo.
Endnotes
1 Tenn. Code. Ann. § 68-10-104 (c ) 2 Id. § 63-6-223 3 Id. § 33-8-202 4 The legislature had enacted certain laws dealing with minors, including, Tenn. Code Ann. §§ 68-34-104 (contraception “procedures, supplies and information shall be… available… regardless of…age…), § 68-34-107 (contraceptive supplies and information may be furnished to…any minor who is pregnant, a parent, or married…) § 63-6-220 (treatment of juvenile drug abusers), § 63-6-222 (emergency treatment of minors). 5 Except as it relates to consumption or possession of alcohol, the age of majority in Tennessee is now 18 down from 21.
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