Segal v. First Psychiatric Planners, Inc. , 68 Mass. App. Ct. 709 ( 2007 )

Dreben, J.

The issue in this case is whether the plaintiff alleges only medical malpractice claims appropriate for screening by a tribunal or whether she also asserts nonmedical claims which do not require her to post a bond pursuant to G. L. c. 231, § 60B. In her complaint against a physician as well as the operator of Boumewood Hospital (hospital), the plaintiff asserted numerous instances of medical malpractice and also asserted claims of false imprisonment and intentional and negligent infliction of emotional distress by the hospital.² After a medical tribunal determined that the evidence presented by the plaintiff was insufficient to raise a legitimate question of liability appropriate for judicial inquiry as to both defendants, and that she may pursue her claims only upon filing a bond, she filed an emergency motion in the Superior Court for clarification or reconsideration. In her motion, she argued that her claim for false imprisonment against the hospital was based exclusively on nonmedical grounds and that her claims of intentional and negligent infliction of emotional distress against the hospital were, in large part, based on nonmedical grounds. The judge ruled that the bond requirement applies to ah her claims, stating, “Based on the specific fact allegations in the complaint, the court concludes that all of the plaintiffs claims are based on ‘malpractice, error or mistake’ by a health care provider in the course of providing medical treatment.” After the plaintiff failed to post a bond, a judgment entered dismissing her complaint against the hospital. This is an appeal by the plaintiff. We vacate the judgment in part, as some of the plaintiff’s claims are not medical, and hence, she was not required to file a bond for judicial consideration of those claims.

“General Laws c. 231, § 60B, inserted by St. 1975, c. 362, § 5, empowers a screening tribunal to appraise ‘[e]very, action for malpractice, error or mistake against a provider of health care.’ ” Little v. Rosenthal, 376 Mass. 573, 576 (1978). The court interpreted this language to mean that “all treatment-related claims were meant to be referred to a malpractice tribunal.” Ibid. Here, not only was the complaint sufficient to afford the hospital fair notice that the plaintiffs claims were not limited to medical malpractice,³ but also both the hospital and the judge were apprised of additional details of her claims, including the assertion, not specified in her complaint, that the hospital violated the requirements of G. L. c. 123, § ll.⁴

Prior to the convening of the medical malpractice tribunal, the hospital filed a motion for summary judgment to dismiss the claims in counts HI (false imprisonment), VI (negligent infliction of emotional distress), and VII (intentional infliction of emotional distress).⁵ In her opposition to the motion, and again in her motion subsequent to the determination of the tribunal, the plaintiff claimed that, contrary to the requirements of G. L. c. 123, § 11, she was formally admitted into the hospital either without, or at the least before, a psychiatric admission assessment. Her claim of false imprisonment is also based on her assertion that the hospital misled her into believing that she could leave at the time of her choosing and failed to inform her of a three-day notice requirement contained in the application for “conditional voluntary admission” (see note 4, supra).⁶

In her introduction to her offer of proof to the tribunal, the plaintiff specifically stated that her claims against the defendants “include more than her medical malpractice claims,” mentioned her claims of false imprisonment and intentional and negligent infliction of emotional distress, and pointed out that the jurisdiction of the tribunal extends only to the medical aspects of her claims.

In an affidavit, which was part of the offer, the plaintiff, in addition to detailing numerous events that in her view amounted to medical malpractice, set forth the following material relevant to her nonmedical claims. Expanding on the substance of paragraphs 42 and 45 of her complaint, see note 3, supra, she stated that upon her arrival at the hospital on October 1, 2001, a woman, who did not identify herself as a physician, took her into an office where the woman processed the plaintiff’s admission. The woman took down the plaintiff’s personal and insurance information and asked the plaintiff to sign a document (application), see note 6, supra, which the plaintiff did not read because of her blurred vision. From what she was told by hospital staff on the day of her admission, the plaintiff understood that she would be able to leave the hospital as she chose.

“After completing [the plaintiff’s] admission,” the woman escorted the plaintiff to an anteroom where her belongings were searched. She was then taken by the woman and a nurse to a small room where the plaintiff was undressed and her clothing was searched. Thereafter, she was taken into the ward, Dodge I, and shown her room and bed. Only after these admission procedures were completed was the plaintiff seen by a woman who took the plaintiff’s medical and psychiatric history. The plaintiff does not recall meeting the doctor whose notes appear on the hospital records (Dr. Nguyen)⁷ or any other male physician on the day of her admission.

The plaintiff stated in her affidavit that although she wanted to leave the hospital the morning after her admission, as a result of being misinformed prior to signing the application and later again by not being properly informed of the three-day requirement, she was forced to remain at the hospital for several days.

Because the action was dismissed for failure to file a bond, and not under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), our review of the dismissal is limited to whether the claims dismissed were “medical.” “The tribunal procedure ... is appropriate only where there is an ‘issue of medical “malpractice, error or mistake” ’ (emphasis in original).” Leininger v. Franklin Med. Center, 404 Mass. 245, 248 (1989), quoting from Little, 376 Mass. at 577. In the view of the majority of the panel, the false imprisonment claim — that the plaintiff was admitted under misleading circumstances and without following the procedures of G. L. c. 123, § 11, for proper admission — does not present an issue of “medical malpractice, error or mistake.”⁸

In Leininger, supra at 248, the Supreme Judicial Court held that a claim of failure to follow the requirements of G. L. c. 123, § 12 (involuntary commitment), by committing the plaintiff to a mental health facility without an examination was not a medical claim that should have been referred to a medical malpractice tribunal. Failure to comply with the provision of the statute was not a medical decision. Accordingly, the court held that the plaintiff’s complaint should not have been screened by a tribunal; the court vacated the judgment dismissing the action because of the plaintiff’s failure to post a bond. The Leininger court stated, “We have discerned a strong legislative intent that the tribunal ‘should evaluate only the medical aspects of a malpractice claim.’ ” Id. at 247-248, quoting from Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521 (1979).

The claims of the plaintiff in Leininger, supra at 246, were for violation of her civil rights under G. L. c. 12, § 111, for false imprisonment, and for intentional infliction of emotional distress. At the hearing before the Leininger tribunal the plaintiff asserted that those claims were established by her involuntary commitment without following the statute. Id. at 247. The false imprisonment and emotional distress claims of the plaintiff in the case at bar are sufficiently similar to the claims in Leininger for us to conclude that they, too, do not present an “issue of medical ‘malpractice, error or mistake.’ ” 404 Mass. at 248, quoting from Little, 376 Mass. at 577. See Garcia v. Psychiatric Insts. of America, Inc., 638 So. 2d 567, 567 (Fla. Dist. Ct. App. 1994) (false imprisonment and battery claims against doctor and hospital governed by tort statute of limitations rather than shorter medical malpractice statute of limitations). The plaintiffs nonmedical claims center on the allegation that she was misled as to the terms of her admission and discharge and that she was not assessed until after her admission in violation of the statutory requirement. As in Leininger, she does not, with respect to these claims, urge that the hospital was negligent or mistaken by reason of its medical judgment. Contrast Johnston v. Stein, 29 Mass. App. Ct. 996, 997 (1990) (where the misrepresentation was of a medical nature).

Because the foregoing claims of the plaintiff do not involve the medical aspects of a malpractice claim, the judgment insofar as it dismissed those claims is to be vacated and the case remanded to the Superior Court for further proceedings thereon consistent with this opinion.⁹

So ordered.

2 The plaintiff does not appeal from the dismissal of her claims against the physician or from the tribunal’s determination that her offer of proof was insufficient as to her medical claims. Her appeal is only from the dismissal of those claims against the hospital that she asserts are nonmedical.

3 In a section of her complaint entitled “Boumewood Hospital Misled and Falsely Imprisoned Plaintiff,” paragraph 42 states: “Upon her admission, the hospital asked Plaintiff to sign certain admission papers. Given her blurred vision . . . she could not read the papers. She thus asked the [hospital] staff what she was signing. Plaintiff was informed that she was signing paperwork which stated that she was voluntarily asking to be admitted to the hospital. Plaintiff then asked whether there were a minimum number of days that she would have to stay in the hospital. The hospital falsely told her ‘no.’ Trusting what Boumewood told her, she signed.” ...

Paragraph 45 states that her stay was extended because she was misled into signing other paperwork about the terms of her discharge.

4 General Laws c. 123, §§ 10 and 11, provide for two kinds of voluntary commitment to a mental health facility. If a person commits herself to a facility under what the regulation terms a “voluntary admission,” 104 Code Mass. Regs. § 27.06 (2001), she “shall be free to leave such facility at any time” without prior notice, except that the facility superintendent may restrict departure to normal weekday working hours. G. L. c. 123, § 11, inserted by St. 1986, c. 599, § 38. If a person commits herself under what the regulation terms a “conditional voluntary admission,” 104 Code Mass. Regs. § 27.06, the superintendent may require that she “give three days written notice of [her] intention to leave or withdraw.” G. L. c. 123, § 11.

General Laws c. 123, § 11, as amended by St. 2000, c. 249, § 3, in relevant part provides: “Before accepting an application for . . . admission where the superintendent may require three days written notice of intention to leave or withdraw [i.e., conditional voluntary admission], the admitting or treating physician shall assess the person’s capacity to understand that: (i) the person is agreeing to stay or remain at the hospital; (ii) the person is agreeing to accept treatment; (iii) the person is required to provide the facility with three days written advance notice of the person’s intention to leave the facility; and (iv) the facility may petition a court for an extended commitment of the person and that he may be held at the facility until the petition is heard by the court. If the physician determines that the person lacks the capacity to understand these facts and consequences of hospitalization, the application shall not be accepted.”

Title 104 Code Mass. Regs. § 27.06(6) requires that “[p]rior to admitting a person on conditional voluntary admission status, the admitting personnel shall inform such person of the three day notice requirements” in § 11.

5 The hospital’s motion was never acted upon.

6 The application signed by the plaintiff, entitled “Application for Care and Treatment on a Conditional Voluntary Basis, M.G.L. Chapter 123, Sections 10 & 11,” and which was part of the offer of proof to the tribunal, states in part: “I realize that when I want to leave the facility, I must give written notice to the Superintendent of the facility, who may delay my departure for up to three days (excluding Saturday, Sunday and holidays).”

7 The hospital admission note of October 1, 2001, at 2:50 p.m., states, “Admission note — 47 yr old Caucasian female accepted on Dodge I . . . . Pt [patient] arrives at the end of shift. Personal search completed [with] no contraband found. Pt is at present in day room, awaiting admission assessment pending arrival 3-11 shift.” A later note of Dr. Nguyen dated October 1, 2001, but without indicating a time, states, insofar as legible, “47 yr w.g. [with diagnosis] was [illegible] admitted for manic behavior. Evaluation done. Report dictated [illegible] Nguyen, md.”

8 Whether a claim is medical or nonmedical is not a question appropriate for tribunal procedure. That question is for the court to decide. See Koltin v. Beth Israel Deaconess Med. Center, 62 Mass. App. Ct. 920, 920 (2004) (whether a medical provider has a duty to continue care once undertaken is a question of law appropriate for a court, not a malpractice tribunal). See also Robbins v. Orlando, H.M.A., Inc., 683 So. 2d 664, 664 (Fla. Dist. Ct. App. 1996) (whether the false imprisonment claim arises “out of the rendering of, or the failure to render, medical care or services” under the relevant Florida statute is up to the court to decide).

Because of Leininger v. Franklin Med. Center, 404 Mass. 245, 245-246 (1989), the dissent acknowledges that if the parties had stipulated that the plaintiff was assessed only after admission, the tribunal would have been without jurisdiction over the false imprisonment claim. See post at 719-720. The dissent, however, finds the plaintiff’s assertion that she was admitted prior to assessment “unsupported” and “based on nothing more than her conjecture and surmise.” Post at 721. Relying on that finding, the dissent concludes that the plaintiff failed to prove that the tribunal lacks jurisdiction over her claims. Aside from the issue of who has the burden to show jurisdiction, a question we do not reach, we consider that unless a claim is frivolous — which is not the case here — the strength or weakness of the evidence supporting the claim does not determine jurisdiction. In this case the jurisdictional question is whether the claim involves “medical ‘malpractice, error or mistake.’ ” Leininger, supra at 248, quoting from Little, 376 Mass. at 577. In other words, the issue is whether the following questions are medical ones: (1) was there a violation of the statute because of a failure to assess the plaintiff before admitting her?; and (2) was there a misrepresentation as to the three-day notice requirement or was there a failure to give notice of this requirement in violation of the regulation (see note 4, supra)? These are the questions that the majority of the panel consider nonmedical and determine that the plaintiff may pursue in her action without a bond. At trial, the plaintiff will have the burden of persuading the fact finder that the misrepresentation was made, or that the admission preceded the assessment. Whether she succeeds is not for the appellate court at this juncture. See generally 2 Moore’s Federal Practice § 12.30[2], at n.5.1 (3d ed. 2006), and 5B Wright & Miller, Federal Practice & Procedure § 1350, at 207-208 (3d ed. 2004), pointing out the distinction between the question of jurisdiction and the merits. If they are intertwined, deferral until trial or other proceeding is the method of resolution.

9 On remand to the Superior Court, the plaintiff’s claims for infliction of emotional distress and false imprisonment shall, of course, be limited to claims arising from the failure, if any, to assess the plaintiff before admission and from the failure, if any, to inform her of the three-day notice requirement prior to admission.