Powell v. Duke University, Inc. , 18 N.C. App. 736 ( 1973 )

197 S.E.2d 910 (1973) 18 N.C. App. 736

Booker T. POWELL, Plaintiff-Appellant,
v.
DUKE UNIVERSITY, INC., et al., Defendants-Appellees.

No. 7314SC332.

Court of Appeals of North Carolina.

July 25, 1973.

Loflin, Anderson, Loflin & Goldsmith by Thomas F. Loflin, III, Durham, for plaintiff appellant.

Atty. Gen. Robert Morgan by Parks H. Icenhour, Asst. Atty. Gen., Raleigh, for defendants-appellees Irigaray, Mendez and McNiel.

BRITT, Judge.

We hold that the court did not err in entering summary judgment in favor of defendants Irigaray, Mendez and McNiel.

The admissions in pleadings and materials presented at the hearing disclose that at the time plaintiff was admitted to John Umstead Hospital on 23 December 1970, defendant Irigaray, a medical doctor, was the superintendent of said hospital and defendants Mendez and McNiel, also medical doctors, were on the medical staff of said hospital. Owned and operated by the State of North Carolina, John Umstead Hospital's chief purpose is to treat persons who are mentally ill, it being one of the institutions authorized by and subject to the provisions of Chapter 122 of the General Statutes.

Plaintiff contends appellees acted illegally in accepting and detaining him as an emergency patient. We will discuss the principal arguments advanced in support of this contention.

Plaintiff argues that G.S. § 122-59 is unconstitutional for that it purports to authorize the deprivation of a person's liberty without due process of law. On 27 June 1973 (subsequent to oral arguments in the case at bar), by opinion filed in the case of In Re The Confinement of Gracie Mae Hayes, 197 S.E.2d 582, this court held that the provisions of G.S. § 122-59, G.S. § 122-63 and G.S. § 122-65 are unconstitutional. However, we do not think the holding in Hayes affects the result in this case.

There is a presumption in favor of the constitutionality of a statute. State v. Hales, 256 N.C. 27, 122 S.E.2d 768 (1961). The legal principle that an unconstitutional statute is a complete nullity and cannot justify any acts under it, must be construed with respect to the particular factual situation, and while a party may not assert a right arising out of a statute which has been declared unconstitutional, the principle does not strike down all undertakings made in reliance upon said statute. Roberson v. Penland, 260 N.C. 502, 133 S.E.2d 206 (1963).

We hold that appellees were entitled to rely on the provisions of G.S. § 122-59 at the time of the acts complained of.

Granting that G.S. § 122-59 had not been declared unconstitutional at the time of the acts complained of, plaintiff argues that his acceptance and detention by appellees were illegal for that the paper writing executed by Dr. Ruiz "committing" plaintiff to Umstead Hospital did not meet the requirements of the statute. Among other things, plaintiff argues that Dr. Ruiz was not a qualified physician within the purview of the statute.

Affidavits presented at the hearing tended to show: Dr. Ruiz received his medical degree from the University of Chile in 1968 and thereafter interned at the Berkshire Medical Center which is affiliated with the Albany (N.Y.) Medical College. He became a resident in psychiatry at the Duke University Medical Center on 1 July 1970. His credentials were reviewed by the State Board of Medical Examiners whose secretary advised Dr. Ruiz on 7 July 1970 that he had a limited license to practice medicine in connection with his residency training at Duke and on 31 August 1970 said secretary advised Dr. Ruiz that he had been granted a resident's training license to "cover him for his residency" at Duke. The activities and responsibilities under a resident's training license are entirely up to the discretion of the Duke University School of Medicine and part of a resident's training at Duke is to examine persons and commit such persons under G.S. § 122-59 if said physician is of the professional opinion that the person is homicidal or suicidal or dangerous to himself or others.

G.S. § 122-36(f) provides that a "qualified physician" within the meaning of Chapter 122 is a medical doctor "who is duly licensed by this State to practice medicine." The State of North Carolina has delegated the matter of licensing physicians or medical doctors to The Board of Medical Examiners. G.S. § 90-1 et seq. G.S. § 90-12 provides for the issuance of a "limited license" to practice medicine within a defined district.

We find it unnecessary to say whether the limited license issued to Dr. Ruiz made him a "qualified physician" to sign the emergency order challenged by plaintiff. Suffice to say, under the facts shown in this case, we do not think appellees acted improperly in accepting Dr. Ruiz's order at "face value."

Since we have held that the trial court did not err in entering summary judgment in favor of appellees, it follows that the court did not err in refusing to enter summary judgment in favor of plaintiff. We find no merit in plaintiff's contention that the court erred in sustaining objections by defendants to certain of plaintiff's interrogatories as responses to the unanswered interrogatories would not change our decision.

The judgment appealed from is

Affirmed.

CAMPBELL and BALEY, JJ., concur.