In Re Pinal County Mental Health No. Mh-201000029

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA OCT -6 2010
DIVISION TWO
COURT OF APPEALS
DIVISION TWO
) 2 CA-MH 2010-0001
IN RE PINAL COUNTY MENTAL ) DEPARTMENT B
HEALTH NO. MH-201000029 )
) OPINION
)
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Honorable Craig A. Raymond, Judge Pro Tempore
VACATED
James P. Walsh, Pinal County Attorney
By Craig Cameron Florence
Attorneys for Appellee
Mary Wisdom, Pinal County Public Defender
By Lisa M. Surhio Florence
Attorneys for Appellant
E C K E R S T R O M, Judge.
¶1 After a hearing on a petition for court-ordered treatment, the trial court
found by clear and convincing evidence that appellant is persistently and acutely disabled
as a result of a mental disorder and is either unable or unwilling to accept treatment
voluntarily. Pursuant to A.R.S. § 36-540(A)(2), the court ordered that appellant receive
inpatient and outpatient treatment for not more than 365 days, including no more than
180 days of inpatient treatment. Appellant contends there was insufficient evidence to
support the order because neither of the two psychiatrists who examined him conducted
an in-person, physical examination as required by A.R.S. §§ 36-533(B) and 36-539(B).
For the reasons set forth below, we vacate the order.
Factual and Procedural Background
¶2 The appellant was examined by two psychiatrists, Dr. Michael Vines and
Dr. Vincent Krasevic. Dr. Vines was in the same room as appellant when he observed
and interviewed him. In Vines‟s affidavit, under the heading “Mental Status” and the
subheading “Emotional process,” he reported that appellant walked with a limp, had “a
history of spina bifida,” made good eye contact, appeared relaxed, and wore long hair and
a beard. Vines did not testify he had conducted any other bodily examination of the
appellant, nor did he suggest appellant‟s behavior or condition made such an examination
impracticable.
¶3 Dr. Krasevic examined appellant remotely by a “Telemed” video
conferencing system rather than in person. Krasevic indicated both in his affidavit and
testimony that he had reviewed available documentation on appellant, including a drug
screen and a report of his vital signs taken by a nurse practitioner. Like Dr. Vines, Dr.
Krasevic‟s observations of appellant‟s physical appearance and behavior were focused on
his mental status.
¶4 Appellant contended below that Dr. Krasevic had not conducted a physical
examination and that the state had therefore “failed to meet the strict requirement . . .
under the mental health statutes that two physicians actually perform examinations and
2
evaluations of the patient.” The trial court found the state had met its burden and the
evidence presented was sufficient to conclude appellant was persistently and acutely
disabled as a result of a mental disorder.
Discussion
¶5 “The requirements of . . . most of the provisions of Title 36 . . . are set forth
with precision and clarity. When the legislature has spoken with such explicit direction,
our duty is clear.” In re Coconino County Mental Health No. MH 95-0074, 186 Ariz.
138, 139, 920 P.2d 18, 19 (App. 1996). Because a person‟s involuntary commitment
“may result in a serious deprivation of liberty,” strict compliance with the applicable
statutes is required. In re Coconino County Mental Health No. MH 1425, 181 Ariz. 290,
293, 889 P.2d 1088, 1091 (1995). A lack of strict compliance “renders the proceedings
void.” In re Burchett, 23 Ariz. App. 11, 13, 530 P.3d 368, 370 (1975).
¶6 The issues raised in this appeal involve questions of statutory interpretation,
which are questions of law that we review de novo. In re MH 2006-000749, 214 Ariz.
318, ¶ 13, 152 P.3d 1201, 1204 (App. 2007). When interpreting a statute, our primary
purpose is to give effect to the intent of the legislature. In re Maricopa County Mental
Health No. MH 2001-001139, 203 Ariz. 351, ¶ 12, 54 P.3d 380, 382 (App. 2002). The
“best evidence of that intent” is the plain language of the statute. Id. If the language of a
statute is not clear, we “determine legislative intent by reading the statute as a whole,
giving meaningful operation to all of its provisions, and by considering factors such as
the statute‟s context, subject matter, historical background, effects and consequences, and
3
spirit and purpose.” Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230
(1996).
¶7 Before a petition for court-ordered treatment may be filed, the proposed
patient must first be evaluated. A.R.S. § 36-533(B). An evaluation is “a professional
multidisciplinary analysis based on data describing the person‟s identity, biography and
medical, psychological and social conditions” performed by a group of health care
professionals, including “[t]wo licensed physicians, who shall be qualified psychiatrists,
if possible . . . and who shall examine and report their findings independently.” A.R.S.
§ 36-501(12). Section 36-533(B) provides, inter alia, that the petition for court-ordered
treatment
shall be accompanied by the affidavits of the two physicians
who conducted the examinations during the evaluation period
. . . [which affidavits] shall describe in detail the behavior
which indicates that the person, as a result of [a] mental
disorder, is . . . persistently or acutely disabled . . . and shall
be based upon the physician’s examination of the patient and
the physician‟s study of information about the patient.
(Emphasis added.) Absent a stipulation, the two physicians who execute the affidavits
must testify at the hearing on the petition “as to their personal examination of the
patient.” A.R.S. § 36-539(B). “Examination” is defined as “an exploration of the
person‟s past psychiatric history and of the circumstances leading up to the person‟s
presentation, a psychiatric exploration of the person‟s present mental condition and a
complete physical examination.” § 36-501(14) (emphasis added). Together, §§ 36-
533(B) and 36-501(14) require that two physicians must each personally conduct a
4
“complete physical examination” of the patient. See In re MH 2008-000438, 220 Ariz.
277, ¶¶ 14, 16, 205 P.3d 1124, 1127 (App. 2009).
¶8 In this case, the parties dispute the meaning of the phrase “complete
physical examination” and therefore reach different conclusions about the nature and
scope of that examination. The appellant asserts the phrase contemplates a conventional
physical examination like that conducted by any physician to evaluate a patient‟s overall
medical health. The state counters that, in the context of a psychiatric evaluation, the
legislature intended to require only “observations of a proposed patient, [his or her]
demeanor, presentation, ability to communicate with the doctor, and expressions.” In
short, the state suggests a physician may comply with the requirement by conducting a
remote visual observation of the patient, evaluating his or her presentation only for signs
of mental illness.
¶9 In our view, a plain reading of the pertinent statutory language compels the
conclusion that the legislature intended to require a physical examination directed at
evaluating the patient‟s overall medical health. As discussed above, § 36-533(B)
unambiguously requires that two physicians participate in the “evaluation” of the patient.
Section 36-501(12) clarifies that the required “evaluation,” of which a “complete physical
examination” is a component, includes an analysis not only of the patient‟s
“psychological” condition but also his or her “medical” condition. Thus, the legislature‟s
stated goals for the broader evaluation suggest it intended the physical examination to
encompass both the medical and psychological aspects of a patient‟s health.
5
¶10 Moreover, § 36-501(12) specifies that the examination—including the
“complete physical examination”—must be conducted not by psychologists, but rather by
“licensed physicians, who shall be qualified psychiatrists, if possible.” Thus, the statute
expressly requires that the person conducting the complete physical examination have
medical training in addition to some background in evaluating mental illness. This
further suggests that the “complete physical examination” contemplated by the legislature
be one directed at the overall medical status of the subject.
¶11 Nor can we harmonize the state‟s suggestion that the examination may be a
limited one, confined to a visual assessment of the patient‟s presentation, with the
legislature‟s requirement that the physical examination be “complete.” See City of
Phoenix v. Phoenix Employment Relations Bd., 207 Ariz. 337, ¶ 11, 86 P.3d 917, 920-21
(App. 2004) (“Courts . . . give meaning to each word, phrase, clause, and sentence so that
no part of the statute will be void, inert, redundant, or trivial.”). And the state offers no
other textual support for its narrow interpretation of what the “complete physical
examination” must entail.
¶12 To the contrary, the legislative history of the current statute demonstrates
that the requirement of a “complete physical examination” was first introduced as part of
a comprehensive legislative scheme designed in part to protect the severely mentally ill
from medical neglect. Previous versions of our code also required an “examination” or
“personal examination” by physicians prior to a civil commitment. Ariz. Rev. Code
1928, § 1769; Ariz. Code 1939, § 8-301; Ariz. Code 1939, § 8-307 (Supp. 1952); A.R.S.
§ 36-507(B) (1956); 1958 Ariz. Sess. Laws, ch. 84, § 1 (former A.R.S. § 36-514(B)). But
6
these examinations were apparently limited in scope and related only to the mental health
of the patient. See 1958 Ariz. Sess. Laws, ch. 84, § 1 (allowing court to make orders
“necessary to provide for examination into the mental health of the person” under former
A.R.S. § 36-510(A)); cf. Ariz. Rev. Code 1928, § 1772 (requiring “an examination into
the alleged insanity” of incarcerated person by physician as prerequisite to commitment
in state hospital).
¶13 This changed in 1974, when the legislature repealed our prior mental health
statutes, 1974 Ariz. Sess. Laws, ch. 185, § 1, and for the first time required a “complete
physical examination” of persons being evaluated for treatment. 1974 Ariz. Sess. Laws,
ch. 185, § 2 (former A.R.S. § 36-501(10)). The new law implemented a package of
reforms aimed at clarifying and enforcing patients‟ rights,1 preventing involuntary
psychosurgeries,2 and generally protecting patients from abuse and medical neglect. 3 As
part of these reforms, the legislature guaranteed that a person undergoing an evaluation
would receive both “physical and psychiatric care and treatment for the full period he is
detained.” 1974 Ariz. Sess. Laws, ch. 185, § 2 (former A.R.S. § 36-518(A)) (emphasis
added). The same provision guaranteeing quality treatment also directed agencies to
keep records detailing “all medical and psychiatric evaluations and all care and treatment
received by the person.” 1974 Ariz. Sess. Laws, ch. 185, § 2 (former § 36-518(A))
1
See 1974 Ariz. Sess. Laws, ch. 185, § 2 (former A.R.S. §§ 36-511 through
36-523).
2
See 1974 Ariz. Sess. Laws, ch. 185, § 2 (former A.R.S. § 36-562(E)).
3
See 1974 Ariz. Sess. Laws, ch. 185, § 2 (former A.R.S. § 36-524).
7
(emphasis added). It further required the agency responsible for the person‟s care and
treatment to provide, inter alia, “[a] full physical examination once a year.” 1974 Ariz.
Sess. Laws, ch. 185, § 2 (former § 36-518(B)(3)).
¶14 Thus, the history and context of Arizona‟s statutory scheme reinforce our
conclusion that the plain language of § 36-501(14) requires a physical examination
directed at the physical as well as the mental health of the patient. In requiring complete
physical examinations, our legislature demonstrated it was concerned not only with the
mental conditions of people being evaluated but also with other medical conditions that
might require attention while they were in state custody. And, by requiring separate
physical examinations under §§ 36-533(B) and 36-539(B), the legislature ensured that
examining physicians would not uncritically adopt each other‟s conclusions, see In re
Commitment of Alleged Mentally Disordered Person, 181 Ariz. 290, 292, 889 P.2d 1088,
1090 (1995); MH 2008-000438, 220 Ariz. 277, ¶ 16, 205 P.3d at 1127, but would instead
carefully examine each proposed patient, document his or her condition, and determine
that the patient‟s problems were truly the “result of [a] mental disorder” rather than a
separate medical condition. § 36-533(B).
¶15 Our understanding of the legislature‟s intent in requiring a “complete
physical examination” conforms both to a layperson‟s and a physician‟s understanding of
what that phrase means. A “physical examination” is generally defined as “an
examination of the bodily functions and condition of an individual.” Webster’s Third
8
New Int’l Dictionary 1706 (1971).4 A “physical examination,” specifically, is “[t]he act
or process of examining the body to determine the presence or absence of disease.”
Taber’s Cyclopedic Medical Dictionary E-69 (12th ed. 1973). Traditionally, the “four
procedures utilized are inspection, palpation, percussion and auscultation.” Id.5 And our
statute‟s use of the word “complete” is consistent with the medical caveat that the
“physical examination should proceed a capite ad calcem (from head to foot)” and assess
the patient‟s various bodily systems using various diagnostic techniques. Mahlon H.
Delp, Study of the Patient, in Major‟s Physical Diagnosis 13, 20 (Mahlon H. Delp &
Robert T. Manning eds., 7th ed. 1968).6 In short, the traditional components of a
4
In the absence of a statutory definition, a dictionary may be consulted to
determine the ordinary meaning of words used in a statute. See Jennings v. Woods, 194
Ariz. 314, ¶¶ 42-43, 982 P.2d 274, 283 (1999); State v. Wise, 137 Ariz. 468, 470 n.3, 671
P.2d 909, 911 n.3 (1983). Technical words and phrases, however, are to be construed
according to their own “peculiar and appropriate meaning.” A.R.S. § 1-213. Similarly,
we will accord words a special meaning when their context makes it apparent such a
meaning was intended. See Trustmark Ins. Co. v. Bank One, 202 Ariz. 535, ¶ 27, 48 P.3d
485, 491 (App. 2002); State v. Martinez, 202 Ariz. 507, ¶ 15, 47 P.3d 1145, 1148 (App.
2002); Wells Fargo Credit Corp. v. Tolliver, 183 Ariz. 343, 345, 903 P.2d 1101, 1103
(App. 1995). Here, because there is no discrepancy between the ordinary and medical
definitions of a “physical examination,” our references include both.
5
We have confined our citations to dictionaries predating the legislation. We note,
however, that contemporary definitions of the term are not meaningfully different. See
Dorland’s Illustrated Medical Dictionary 664 (31st ed. 2007) (defining “physical
examination” as “examination of the bodily state of a patient by ordinary physical means,
as inspection, palpation, percussion, and auscultation”); Taber’s Cyclopedic Medical
Dictionary 1665 (20th ed. 2001) (defining “physical examination” as “[e]xamination of
the body by auscultation, palpation, percussion, inspection, and olfaction”).
6
In identifying the traditional components of a physical examination in this
opinion, we do not purport to articulate those components of a “complete” physical exam
required by § 36-501(14)—components that our legislature did not specify and that
would logically be left to the sound discretion of a trained physician in conformity with
evolving medical standards. Indeed, relevant medical literature suggests that the
9
physical, which involve a true hands-on assessment of the medical condition of the
patient, demonstrate that, at minimum, a “complete physical examination” involves more
than an interview and visual assessment of a patient‟s presentation and demeanor.
¶16 The state contends the legislature intended the phrase “complete physical
examination” to convey a more specialized and limited meaning in the specific context of
a statute setting forth the requirements for a psychiatric evaluation of a patient‟s potential
mental disorders. However, the state has not explained what the particular specialized
meaning would be or how it would differ from lay and medical understandings of a
physical examination.
¶17 Our own perusal of psychiatric literature does not support the state‟s
suggestion that a physical examination conducted as part of a psychiatric evaluation
would be fundamentally different in nature and more limited than an ordinary physical.
Indeed, the physical examination has long been utilized in psychiatry to determine a
patient‟s “medical status” and to detect “underlying, and perhaps unsuspected, organic
pathology that might be primarily responsible for the psychiatric symptoms.” Marc H.
Hollender & Charles E. Wells, Medical Assessment in Psychiatric Practice, in 1
Comprehensive Textbook of Psychiatry 776, 776 (Alfred M. Freedman, Harold I. Kaplan
appropriate scope of a physical examination, and therefore its completeness, depends on
the particular medical status of the individual patient. See Philip Solomon & John B.
Sturrock, The Psychiatric Examination, in Handbook of Psychiatry 26, 26 (Philip
Solomon & Vernon D. Patch eds., 3d ed. 1974) (observing “there is no standard physical
examination”); see also Am. Psychiatric Ass‟n, Practice Guideline for Psychiatric
Evaluation of Adults, in Practice Guidelines § III.K, at 17 (1st ed. 1996) (“Additional
items may be added to the [physical] examination to address specific diagnostic concerns
or to screen a member of a clinical population at risk for a specific disease.”).
10
& Benjamin J. Sadock eds., 2d ed. 1975). Today, the physical examination is still viewed
by the American Psychiatric Association (APA) as necessary to evaluate the patient‟s
“general medical status” in order to “1) properly assess the patient‟s psychiatric
symptoms and their potential cause, 2) determine the patient‟s need for general medical
care, and 3) choose among psychiatric treatments that can be affected by the patient‟s
general medical status.” Am. Psychiatric Ass‟n, Practice Guideline for the Psychiatric
Evaluation of Adults, in Practice Guidelines for the Treatment of Psychiatric Disorders:
Compendium 2006 § III.K, at 22, § IV.A.5, at 36 (2d ed. 2006); see also Am. Psychiatric
Ass‟n, Diagnostic and Statistical Manual of Mental Disorders 181-190 (4th ed. text
revision 2000) (listing mental disorders due to general medical conditions).7 Although
nothing in our statute suggests that our legislature intended to adopt any particular
specialized definition for a “physical examination,” much less those promulgated in any
specific psychiatric text, it is noteworthy that even those texts advise a physical
examination similar to the type described in more general medical literature. See Am.
Psychiatric Ass‟n, Practice Guideline for the Psychiatric Evaluation of Adults, in
Practice Guidelines for the Treatment of Psychiatric Disorders: Compendium 2006
§ III.K, at 22-23 (2d ed. 2006) (recommending physical examination include collection of
patient‟s vital signs; examination of head, neck, heart, lungs, abdomen, and extremities;
check of patient‟s neurological status; and inspection of skin, “with special attention to
any stigmata of trauma, self-injury, or drug use”).
7
Our supreme court has recognized the Diagnostic and Statistical Manual of
Mental Disorders promulgated by the APA as an authoritative text in the field of
psychiatry. See Logerquist v. McVey, 196 Ariz. 470, 474 n.2, 1 P.3d 113, 117 n.2 (2000).
11
¶18 The state contends the examinations performed here were nonetheless
adequate in light of MH 2008-000438. There, Division One of this court reaffirmed that
each of the two evaluating physicians must personally conduct the required examination,
including the physical examination, to comply with § 36-533(B). MH 2008-000438, 220
Ariz. 277, ¶¶ 7-8, 11, 13-14, 18, 205 P.3d at 1126-27. In so holding, the court observed
in a footnote: “In this context a physical exam is not the typical annual physical but a
component of a psychiatric examination, which includes observing the patient‟s
demeanor and physical presentation, and can aid in diagnosis.” Id. n.3.8 The state
identifies this comment as support for its contention that the “complete physical
examination” mandated in § 36-501(14) may be limited to observations of the patient‟s
demeanor and presentation and focused exclusively on a mental health diagnosis.
¶19 But the question of what constitutes a “complete physical examination” was
neither squarely before the court in MH 2008-000438 nor essential to the court‟s
disposition. It was therefore, at best, obiter dicta, carrying limited precedential weight.
See Phelps Dodge Corp. v. Ariz. Dep’t of Water Res., 211 Ariz. 146, n.9, 118 P.3d 1110,
1116 n.9 (App. 2005) (defining different types of dicta). We decline the state‟s invitation
to construe that case as approving the limited and remote diagnostic methods utilized
here, contrary to the plain language of our statutes. In fact, as to the issues it squarely
8
Division One of this court recently repeated this statement without analysis in
broadly describing the features of a required evaluation. In re MH2009-002120, 225
Ariz. 284, ¶ 5, 237 P.3d 637, 640 (App. 2010).
12
addressed, MH 2008-000438 applied a standard of strict compliance with the statutory
requirements, much as we do here. See 220 Ariz. 277, ¶ 7, 205 P.3d at 1126.
¶20 Even were we to agree that it is burdensome and unnecessary to require
complete physical examinations when evaluating the mental health of a proposed patient,
this court is not free to amend the unambiguous language of our statutes to conform to
our own notions of public policy.9 See State v. Gonzalez, 216 Ariz. 11, ¶ 10, 162 P.3d
650, 653 (App. 2007); State ex rel. Dep’t of Econ. Sec. v. McEvoy, 191 Ariz. 350, ¶ 16,
955 P.2d 988, 991 (App. 1998). And, although we express no opinion on the reliability
of the conclusions reached by the psychiatrists in this case concerning the appellant‟s
mental status, we are neither inclined nor empowered to deny individual patients the
medical benefits and protections bestowed on them by our legislature.
¶21 The statutory scheme requires each of two physicians to personally conduct
a physical examination of a patient. See §§ 36-501(14), 36-533(B), 36-539(B). Here, the
record is unambiguous that Dr. Krasevic failed to do so. 10 His only examination of
appellant occurred remotely by a “Telemed” video conferencing system rather than in
9
We are aware that our legislature recently expanded the role nurse practitioners
may play in the evaluation process. See 2010 Ariz. Sess. Laws, ch. 272, §§ 1, 4-5. But in
so doing, the legislature left essentially unchanged the provisions of our mental health
code we address today. Thus, each evaluating psychiatrist or qualified physician must
still personally perform a complete physical examination of the proposed patient. See
§§ 36-501(14), 36-533(B), 36-539(B). Should the legislature conclude the expense or
inefficiency of the examination requirement outweighs its benefits, the legislature is free
to amend these statutes and specify otherwise.
10
The record suggests Dr. Vines also failed to conduct a complete physical
examination, as the appellant contends on appeal. However, the appellant made no such
contention to the trial court and we therefore do not address the adequacy of that
examination further.
13
person. Although he relied on a written report of appellant‟s vital signs previously taken
by a nurse practitioner, he did not conduct a complete physical examination himself. And
Krasevic‟s observations related exclusively to appellant‟s alleged mental disorder rather
than his overall health. Therefore, Krasevic did not personally conduct the physical
examination called for by our legislature as a necessary basis of his opinion.11
¶22 Because the procedures specified by our mental health statutes were not
strictly complied with by at least one of the two physicians who examined the appellant,
we must vacate the court‟s treatment order. See Commitment of Alleged Mentally
Disordered Person, 181 Ariz. at 293, 889 P.2d at 1091.
Concurrence
¶23 Turning briefly to our colleague‟s concurring opinion, we respectfully
disagree that our decision today contains any unnecessary dicta on the scope of a physical
examination.12 While we share her desire to generate decisions no broader than the
issues asserted in the trial court and framed by the parties on appeal, we believe the
11
We do not address whether a complete physical examination conducted by
medical personnel at the contemporaneous direction of a physician using a video
conferencing system would comply with the statute. The record is clear no such
procedure was employed here.
12
Although our opinion makes reference to scholarly understandings of a “physical
examination” which itemize its traditional components, we include those descriptions
only to illustrate the general nature of the exam contemplated by our legislature when it
used that phrase—not to give any specific scholarly understanding the force of law. In
suggesting we have purported to determine the precise scope of a complete physical
exam based on these texts, we fear our colleague misunderstands the nature of our
reference to them.
14
limited opinion she advocates would neither meet that criteria nor fully meet the
responsibilities of this court.
¶24 We have a duty to affirm a trial court on any proper ground, a duty that is
especially pronounced when, as here, the trial court has not set forth the specific basis for
its disputed ruling. See City of Phoenix v. Geyler, 144 Ariz. 323, 330, 697 P.2d 1073,
1080 (1985) (recognizing appellate court‟s obligation to affirm where any reasonable
view of facts and law might support trial court‟s judgment); Murren v. Murren, 191 Ariz.
335, ¶ 8, 955 P.2d 973, 975 (App. 1998) (stating appellate court “„must affirm if there is
any proper basis to do so‟”), quoting Crye v. Edwards, 178 Ariz. 327, 328, 873 P.2d 665,
666 (App. 1993). Under such circumstances, we cannot leave unaddressed the state‟s
primary argument in support of that ruling: that the “complete physical examination”
called for by the statute requires nothing more than a visual assessment of the patient‟s
presentation and demeanor. Notably, Dr. Krasevic‟s remote examination provided him
the opportunity to visually inspect the patient and would therefore comply with the
requirement of a “complete physical examination” under the state‟s mistaken
understanding of that phrase.
¶25 Nor could we dispose of the state‟s argument on grounds that it is too
frivolous to merit discussion. To the contrary, as discussed, the state‟s argument finds
support in the footnote of a recent opinion of our court, a footnote we assume the trial
court had read and was arguably required to follow. See Fuentes v. Fuentes, 209 Ariz.
51, ¶ 32, 97 P.3d 876, 883 (App. 2004) (trial courts presumed to know law and correctly
apply it).
15
Disposition
¶26 For the foregoing reasons, the treatment order is vacated.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
K E L L Y, Judge, concurring.
¶27 I write to concur in the only holding reached by my colleagues—that the
trial court‟s order for treatment is void for failure to comply strictly with the commitment
statutes. Because the opinion‟s discussion of what a complete physical examination
entails is not necessary to our decision, and because this issue was neither raised in the
trial court nor adequately developed on appeal, I would not engage in the lengthy
interpretation of the statute undertaken by my colleagues.
¶28 In their opinion, my colleagues conclude that Dr. Krasevic‟s evaluation of
appellant, conducted remotely and in reliance on an evaluation previously performed by a
nurse practitioner, failed to comply strictly with the statutory requirements. I agree with
this conclusion which, in itself, disposes of the matter before us. Having decided that
Krasevic‟s examination fell short of the statutory requirements because his observations
were limited to appellant‟s mental disorder rather than to his overall health, we need go
16
no further in explaining what more the statute might require. To do so is to engage in
unnecessary dicta. See Creach v. Angulo, 186 Ariz. 548, 551-52, 925 P.2d 689, 692-93
(App. 1996) (“A court‟s statement on a question not necessarily involved in the case
before it is dictum.”); see also McCluskey v. Indus. Comm’n, 80 Ariz. 255, 258, 296 P.2d
443, 445 (1956) (“It would be dicta for us to make any pronouncement on matters
unnecessary to a determination of the instant review.”).
¶29 Furthermore, engaging in a discussion of extraneous matters is particularly
ill-advised due to the meager record before us. Appellant made no argument to the trial
court relating to the necessary scope of the physical exam, but instead argued only that
Krasevic had conducted his examination remotely. After the state had presented its case
below, appellant‟s counsel moved for a directed verdict based on A.R.S. § 36-539(B),
stating, “Petitioner must present the testimony of two physicians who performed
examinations in the evaluation of the patient.” Counsel then referred to the definition of
examination contained within A.R.S. § 36-501(14), and argued that “one of the doctors
was not even present with [appellant] in the room, so it is not possible that he actually
conducted a physical examination.” The trial court rejected that argument. At the close
of the evidence, appellant again argued that the state had not met its burden, citing the
requirement that the evaluation include a physical examination. Specifically, counsel
stated: “That examination . . . requires a physical examination and that was not
conducted by Dr. Krasevic.”
¶30 On appeal, appellant argues that the trial court erred in finding the state had
met its burden because Krasevic had never been in the same room as appellant and
17
therefore could not have conducted a physical examination. Appellant also asserts for the
first time on appeal that “neither doctor performed the required complete physical
examination.” Generally, when a party fails to raise an issue before the trial court, the
issue is waived on appeal. Reid v. Reid, 222 Ariz. 204, ¶ 16, 213 P.3d 353, 357 (App.
2009). And, although it is true that when extraordinary circumstances exist, we may
address matters raised for the first time on appeal,13 Trantor v. Fredrikson, 179 Ariz. 299,
300, 878 P.2d 657, 658 (1994), the appellant also failed to develop the argument
adequately on appeal. See Ariz. R. Civ. App. P. 13(a)(6); Polanco v. Indus. Comm’n, 214
Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (failure to develop and support
argument waives issue on appeal). Likewise, although the state cites In re MH 2008-
000438, 220 Ariz. 277, 205 P.3d 1124 (App. 2009), in support of its argument that an
examination “like one would expect during one[‟]s annual physical examination” is
unnecessary under the statute, it fails to develop any argument about the scope of the
physical examination.
13
“Given the liberty interests at stake,” an involuntary treatment case can
“present[] one of „the extraordinary circumstances‟ in which an error not presented to the
trial court may be presented to an appellate court in the first instance.” In re MH 2006-
000023, 214 Ariz. 246, ¶ 11, 150 P.3d 1267, 1270 (App. 2007) (vacating involuntary
treatment order because patient not provided timely notice as required by A.R.S. § 36-
536, and statute specifically prohibited waiver of such notice). However, in this case,
appellant‟s failure to raise this issue below not only denied the trial court and opposing
counsel “„the opportunity to correct any asserted defects,‟” id. ¶ 8, quoting Trantor, 179
Ariz. at 300, 878 P.2d at 658, but leaves this court without an adequate record upon
which to base any decision concerning the scope of a complete physical examination.
And, unlike the situation presented in MH 2006-000023, no statute that specifically bars
waiver is implicated here.
18
¶31 My colleagues have undertaken the task of determining the scope of a
complete physical examination in the context of a psychiatric evaluation for commitment,
even though the issue was not raised below or developed adequately on appeal, relying
on their “own perusal of psychiatric literature.”14 Given the parties‟ failure to support
their arguments with any evidentiary material, this is an exercise in which I will not, and
respectfully suggest my colleagues should not, engage. Therefore, although I concur in
the judgment, I write separately because I cannot agree with substantial portions of my
colleagues‟ opinion.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
14
Neither my colleagues, nor the treatises upon which they rely, address whether a
physical examination in the commitment context is necessarily different from physical
examinations in other contexts.
19