Clifford v. Maine General Medical Center

STATE OF MAINE SUPERIOR COURT

KENNEBEC, SS. CIVIL ACTION

DOCKET NO. CV-09-271

LINDA CLIFFORD,

Plaintiff

v. ORDER

MAINEGENERAL MEDICAL CENTER et al.,

Defendants

Before the court is a motion to dismiss and summary judgment brought by

defendants MaineGeneral Medical Center and Dr. Scott Kemmerer.

A generalized summary of the underlying factual circumstances giving rise to

the complaint in this case starts with the plaintiff sending an email to the Office of the

Governor complaining of proposed budget cuts to mental health services. Perceiving

the language of the email message as a possible threat to the Governor, the plaintiff

was taken into custody by the Maine State Police and transported to MaineGeneral

Hospital for determination whether she represented a threat to herself or others

founded upon her previously diagnosed mental health issues. Upon examination by

the medical staff, a Dr. Grimmnitz, and a counselor from the Crisis and Counseling

Centers, Inc., it was concluded that she represented no such threat and was allowed to

return home. Later that same day, the staff of the Crisis and Counseling Centers

advised its counselor on the scene and the medical staff that the plaintiff should not

have been released without the approval of Crisis and Counseling staff at a higher level

than the counselor on scene. Upon request by Crisis and Counseling, or the Hospital,

the State Police returned to the home of the plaintiff and using a ruse that she needed to

be returned to the Hospital to sign some papers, she was returned to the emergency

room. There she was faced with another emergency room doctor, Dr. Kemmerer. It

appears the Maine State Police simply left her at the emergency room and took no

further action. No "blue paper" was ever prepared.

When the plaintiff discovered that her return was simply based upon an

administrative decision, she became upset, which set in motion a series of events which

form the significant parts of her complaint. When advised by the emergency room

physician that she was not to going to be released but would be required to spend the

night, plaintiff became very angry and was advised by Dr. Kemmerer that she could

either voluntarily admit herself to the facility or he would initiate the involuntary "blue

paper" procedure. Under those conditions, it appears that she executed the necessary

documents to be admitted on a voluntary basis. During the process, it is alleged that

she was required to expose herself in the presence of two male security officers and

placed in a secure room, designated and equipped for psychiatric patients. The

following day, upon further proceedings and considerations of the circumstances, she

was released.

While there are differing accounts of the activity in the emergency room, there is

no disputing that Ms. Clifford was brought to the hospital under a ruse in that the

formal requirements for an involuntary commihnent to the hospital were never

undertaken. It is a question of fact whether Ms. Clifford voluntarily admitted herself to

· the mental health ward of the hospital or involuntarily signed commitment papers

under a baseless threat of involuntary proceedings. 1

The complaint in this matter was filed September 28, 2009, naming MaineGeneral

Medical Center as defendant. Upon further information becoming available to the

1

For purposes of this motion, the court assumes the Hospital and Crisis and Counseling Centers staff

were aware, or should have been aware, that the plaintiff had a previous PTSD diagnosis and had been

released by the medical staff previously the same day as showing no signs of danger to herself or others.

2

plaintiff, a first amended complaint was filed October 26, 2009, against MaineGeneral

N1edical Center and Dr. Harry Grimmnitz. The second amended complaint was filed

August 31, 2011, naming MaineGeneral Medical Center, Dr. Harry Grimmitz, and Dr.

Scott Kemmerer as defendants. A stipulation of dismissal of all claims against

defendant Grimmnitz was filed October 1, 2012.

The first argument brought forth by the defendant Dr. Kemmerer is that his

addition as a defendant by amendment to the complaint was beyond the two year

statute of limitations in the relevant Maine Revised Statutes. Plaintiff argues that the

addition of Dr. Kemmerer by amendment allows a relation back to the date of the

original complaint by virtue of M.R. Civ. P. 15(c).

The court is satisfied that the amended complaint "arose out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in the original pleading,"

M.R. Civ. P. 15(c)(2), and that the amendment adding Dr. Kemmerer to the complaint

does not prejudice Dr. Kemmerer in "maintaining a defense on the merits" because he

"knew or should have known that, but for a mistake concerning the identity of the

proper party, the action would have been brought against that party" at the outset.

M.R. Civ. P. 15(c)(3)(A) & (B).

From the date of the service of the first complaint, the defendant Hospital has

been aware that the action related to the activities of the emergency room staff on

September 25, 2007 and that it was clearly within the scope of knowledge of the hospital

as to whom were the personnel making the decisions in question. The initial pleadings

alleged that the emergency room physician making the decisions forming the basis for

this litigation were made by a Dr. Harry Gimmnitz and a substantial delay in the

identification of Dr. Scott Kemmerer was occasioned by the defendant Hospital's

) inability or refusal to make the disclosure earlier in the discovery process. The court is

3

satisfied that as soon as plaintiff became aware of the proper identity of the physician

making the decisions in question, the motion to amend was brought forward . Dismissal

of the actions with respect to Dr. Grimmnitz were also timely made.

Defendant Dr. Scott Kemmerer argues that he is immune from suit because he

enjoys absolute "discretionary function immunity" and is entitled to judgment as a

matter of law. Defendant argues that section 811 l(C) of the Maine Tort Claims Act

affords absolute immunity to doctors who participate in the civil commitment process

on the theory that they are government employees performing a discretionary function

or duty, citing 14 M.R.S.A. § 81ll(C); Doe v. Graham, 2009 ME 88, 977 A.2d 391. Also

Lever v. Acadia Hosp. Corp., 2004 ME 35, (When medical personnel of private hospitals

are evaluating individuals to determine if they should be involuntarily committed to a

psychiatric hospital pursuant to state law, they are acting as state employees, entitled to

discretionary function immunity pursuant to section 8111 of the Maine Tort Claims

Act.)

The language of Doe v. Graham, suggests that "[n]ot all actions taken by

physicians or hospital employees during the course of an involuntary commitment

evaluation are automatically immunized from suit. We have indicated that

discretionary function immunity does not extend to actions 'that so clearly exceed the

scope of the official's authority that the official cannot be said to be acting in an official

capacity."' Selby v. Cumberland County, 2002 ME 80, <J[ 6 n.5, 796 A.2d 678. Under the

circumstances, the court found that the immunity must be limited to those acts that are

"central to effecting the State's important responsibilities of protecting the public and

treating the mentally ill." Citing Taylor v. Herst, 537 A.2d 1163 (Me. 1988). The Court

went on further to state that the actions and decisions made in furtherance of

} governmental policy are discretionary and immune from suit, even in instances where

4

the discretion is abused. See 14 M.R.S. § Slll(l)(C); Taylor, 537 A.2d at 1165. Finally,

the Court found that the actions "each represent discretionary acts taken in furtherance

of reaching the statutorily-mandated diagnosis necessary to determine if involuntary

commitment was warranted in Doe's instance". Doe v. Graham, 2009 ME 88, 977 A.2d at

398.

In many respects the facts of this situation are similar to that found in Doe v.

Graham upon which defendant relies to assert absolute discretionary function immunity

on the part of the doctor. It is undisputed that a doctor engaged in the involuntary

commitment process while employed by a hospital under contract to provide mental

health services is entitled to discretionary function immunity provided by the Jvlaine

Tort Claims Act. However, in Doe v. Graham the so called "blue paper" process was

followed and resulted in an involuntary commitment. 2 The actions by the defendants

were found to be consistent with and appropriate to their responsibilities under that

process. In the present case, the facts alleged by the plaintiff suggest that rather than

complying with the blue paper process, they threatened the blue paper process by

making it clear that she would not be released by the hospital and demanded a

voluntary commitment. 3 Further, in the face of resistance, security personnel were

beckoned, suggesting the possible use of physical force to prevent her from leaving the

Hospital. The plaintiff alleges there was no statutorily mandated diagnosis necessary to

determine if involuntary commitment was warranted. The court questions whether the

threat of involuntary commitment to obtain a voluntary commitment avoids the due

i Under 34-13, M.R.S.A. §3862, if a law enforcement officer has probable cause to believe that a perso n

may be mentally iU and presents a lhreat to self or others, the officei: may ta ke the person into protective

custody and deliver the person immediately for examination by a medi al practitioner. 1f the individual is

found not to represent a threat, the person must be released and returned to their place of residence .

3

It has been suggested that psychiatrists utilized by the Hospital to perfom, evaluations for the blue

paper process prefer not to be called in. during late h0t1 rs beca u se they prefer to examine patients in the

morning w hen stressful conditions have subsided.

s

process of the blue paper procedure and the determination by a qualified mental health

provider of a mental condition dangerous to the public or to oneself can be said to be

activities acting in an official capacity. Therefore, the court determines that

discretionary function immunity is not appropriate in this case.

Defendant relies on Jenness v. Nickerson, 637 A.2d 1152 (Me. 1994) for the

proposition that government officials performing discretionary functions are shielded

from liability for civil damages under the Maine Civil Rights Act, 5 M.R.S.A. §4682,

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known. Id at 1155. In that decision the

Law Court assumed that the immunities available to government officials under the

Civil Rights Act are available to private individuals. Plaintiff argues that, at the most,

defendant Dr. Kemmerer may be entitled to qualified immunity

However, whether or not qualified immunity is available within the Maine Civil

Rights Act is a matter of fact based upon all of the circumstances. Therefore, the court

must determine whether the defendants' conduct violates clearly established statutory

or constitutional rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800. The plaintiff alleges seizure of her person without due process,

clearly a Fourth Amendment constitutional violation. Obviously the defendant

intended to see that plaintiff was "seized" as she was placed in a secured room

designed for psychiatric patients.

Whether this court uses a standard of "objective reasonableness" as suggested by

Fowles v. Stearns, 886 F. Supp. 894 in the context of 42 U.S.C.S. §1983 or tactics that

"shock the conscience" as suggested by Jenness v. Nickerson, 637 A.2d 1152, the

availability of qualified immunity is a question for the factfinder.

6

The Hospital's policy of an inventory search of a patient is fully acceptable

including a body search, particularly in the case of a person with mental health issues.

Wilson v. State, 99 S.vV. 3d 767, R.NI. v. Northern Regional Unit, 842 A.2d 308. Whether

calling for the presence of male security officers to assist in causing a female to disrobe

for such a search is acceptable is another question for the factfinder.

Defendant argues that considering plaintiff's allegations one cannot conclude

that there is any evidence that the defendant used physical force or threatened physical

force or violence. 5 NI.RS.A. §4682(1-A). However, the court certainly expects that since

she was brought to the Hospital by the Maine State Police that had she refused, there

was a likelihood of the use of force. Further, when advised she would not be leaving

the hospital, and further when summonsing male hospital security personnel when

asked to disrobe, one cannot surmise that physical force would not have been expected

should she not comply.

Defendant argues that under the circumstances of this case, raising temporary

confinement to a constitutional violation is not consistent with legislative intent, among

other things, that all torts are not constitutional violations. Defendant raises the issue as

to whether temporary confinement constitutes such a "right" anticipated in the Act. In

response, plaintiff quotes Justice Douglas in Monroe v. Pape, 365 U.S. 167, stating that 42

U.S.C. § 1983, "... should be read against the background of tort liability that makes a

man responsible for the natural consequences of his actions." He goes on to cite Vitek v.

foues, 445 U.S. 480 (1980), concluding it has long been recognized that confinement in

mental hospital represents a "massive curtailment of liberty" which "requires due

process protection." For factual support, plaintiff cites to the allegation that she was

forbidden by Dr. Kemmerer to leave the hospital and that hospital security guards were

) posted to ensure that she would remain. Plaintiff further cites Zinennon v. Burch, 494

7

U.S. 113 (1990), which involved hospitalization after signing a consent agreement,

wherein the Supreme Court responded that the claim was sufficiently made if the

defendants "disregarded their duty to ensure that proper procedures [regarding the

processing of the consent form practices] were followed." Id. at 137. 4

Defendant argues that because there is no evidence that the Doctor acted with a

specific intent to interfere with a constitutionally protected right or interest, he cannot

be held liable under the Maine Civil Rights Act. Defendant notes that the Maine Act is

statutorily different than the Federal Civil Rights Act, 42 U.S.C. § 1983 in that Maine law

has a "state of mind" requirement. Fundamentally, the basic foundation of intent must

be established after consideration of the evidence by the fact finder. Did Dr. Kemmerer

intend to confine Ms. Clifford whether or not she signed the voluntary commitment?

Was he prepared to summons the on-call psychiatrist to render services late in the

evening? Was he convinced, based upon his education and experience, that Ms.

Clifford, in the state of mind she presented, was a person of danger to herself or others

and was he performing his public service role in accordance with the mental health

laws of Niaine?

Defendant insists that MaineGeneral cannot be held liable under the Maine Civil

Rights Act because there is no vicarious liability under the Act. Defendant notes that

this court already had ruled that principles of respondeat superior do not apply in

litigation under the Maine Civil Rights Act. However, since the court left open the

possibility there might be a theory of vicarious liability if properly plead, the plaintiff

persists in the claim.

4

Note In re Marcia E., 2012 ME 139 wherein the Court acknowledged the right of writ of habeas corpus

in the event of unlawful hospitalization.

J

8

Adopting the reasoning of an article in volume 35 of the Maine Law Review 5,

plaintiff cites Stropes v. Heritage House Childrens Center, 547 N. E. 2d 244 (Indiana 1989)

for the proposition that a sexual attack by a staff member in a nursing home could give

rise to vicarious liability on the part of the home notwithstanding the act was beyond

the scope of the employee's employment on the basis that the employer had a duty to

insure the safety of its patients. Defendant points out that the burden of production on

motion for summary judgment is on the plaintiff, since the defendants' only burden is

"to assert those elements of the cause of action for which [it] contends there is no

genuine issue to be tried." Citing Corey v. Norman, Hanson & DeTroy, 1999 ME 196, 742

A.2d 933.

This court is not aware of any Maine precedent that adopts a strict hospital

liability standard in the context of civil rights liability. The court notes Porro v. Barnes,

624 F.3d 1322 in the context of 42 U.S.C. 1983, (Just as §1983's plain language doesn't

authorize strict liability, it doesn't authorize respondeat superior liability). See also, Wolf­

Lillie v. Sonquist, 699 F.2d 864, (Section 1983 creates a cause of action based upon

12ersonal liability and predicated upon fault.) (emphasis supplied).

Plaintiff makes a claim for relief under the Maine Human Rights Act, 5

M.R.S.A. § 4621. The statute provides that it is unlawful public accommodation

discrimination in violation of The Maine Human Rights Act for a public

accommodation or person to discriminate or in any manner withhold from or deny the

full and equal enjoyment of such accomodations to any person on account of, among

other things, a mental disability. Plaintiff complains that when she was brought to the

hospital by the police for the second time, the staff, knowing that she had previously

been evaluated and discharged that same day, would not explain to her why she was

5

Comment, Hospital Accountability in Health Care Delivery, 35 U. Me. L. Rev. 77 (1983)

9

returned to the hospital, caused her to be stripped searched, refused to allow her to

return home, and would not require the on-call psychiatrist to come to the hospital for

an evaluation so as to avoid the overnight confinement.

Defendant denies that the Maine Human Rights Act creates a private right of

action with respect to Dr. Kemmerer. In the employment context, he cites Miller v. Hall,

245 F. Supp.2d 1991 (Dist. Me. 2003); 6 Gough v. Eastern Maine Development Corp., 172 F.

Supp.2d 221 (Dist. Me, 2001). 7 He also argues that under Title III of the federal ADA

upon the which the "public accommodations" provisions of the Maine Human Rights

are modeled, court have reached the same result. Emerson v. Thiel College, 296 F.3d 184

(3rd Cir. 2002). The defendant also cites section 504 of the Federal Rehabilitation Act,

29 U.S.C.A. § 794, providing that the individual can receive a remedy under Title VI of

the Civil Rights Act of 1964 based upon any act or failure to act by any recipient of

federal assistance. 29 U.S.C.A. § 794(a). Cases denying individual liability include

Taylor v. Altoona Area School District, 513 F. Supp.2d 540 (Dist. W. Penn. 2007); S. W. v.

Warren, 528 F. Supp.2d 282 (Dist. S. New York 2007). 8

Plaintiff responds by arguing the plain language of the Maine statute. 5 M.R.S.A.

§ 4621 provides that an aggrieved person may file a civil action against the "person or

persons" who committed the unlawful discrimination. Section 4592 makes it unlawful

for the public accommodation or any "person" who is, among others, an employee of

6

The individual defendant, Mr. Hall, was owner of the defendant public accommodation. The Court

said, "the presence of an individua l owner of a corporate defondant in a Title VII action is superfluous."

7

This case is instructive for two reasons. First, it dea ls wi th a federa l court's suppos ition of the

definition o "employer" as would be found by the Maine Law Co urt utilizing cases th a t have sugges ted

that th e Main e Law s hould be in terp reted in acco rd a nce with federa l precedent under federal legislahon.

Second ly, it discusses the unce rtainty of the Ma ine La w Co ur t an d sp ecifically addresses whether o r not it

is obliga ted or required to fo llow fede ra l inter pretation on s peci fic issues, in this case, the definition of

"employer." While it di scusses the term "any p •rson" as found in lvl.R.S.A. § 4592(1) it does not exp lain

the specificity of the Maine Statute la n guage which singles out "owner, lessor, lessee, prop rietor,

operation, manager, s u perintend ent, agent or em ployee" or the place of pu b lic accommodation.

5

The co urt h as become aware of th e recen t decision in Fuhrmann v. Staples, 2012 ME 135. 1-:Iowever,

that decision relies on 5 M.R.S.A. §4553.

10

the public accommodation that discriminates against or withholds goods or services. In

light of the plain language, and in the absence of Maine precedence not in the context of

employment, the court declines to conclude that there is no individual liability available

under the Maine Human Rights Act.

"It is settled law that the MHRA should be construed and applied along the same

contours as the ADA ... There are, however, differences between the two statutory

schemes ... " Dudley v. Hannaford Bros. Co., 333F. 3d 299. While the fundamental

decisions and actions are alleged to be made by the defendant doctor, within the limited

precedents available, there does not seem to be clear guidance that the :tvlaine Act

would be interpreted differently as far as personal liability is concerned.

Defendants assert that the Maine Human Rights Act does not apply to medical

treatment decisions, citing Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116

(7th Cir. 1997)0 another case under the Federal Rehabilitation Act. It involves a

counselor employed by the defendant who had engaged in a sexual relationship with

the plaintiff alleging it "interfered with her treatment" for a mental condition. This case

as well as United States v. University Hospital, State University of New York at Stony Brook,

729 F.2d 144 (2nd Cir. 1984) utilizes an interpretation of section 504 of the Rehabilitation

Act and the "otherwise qualified" criteria of that law. The analysis is interesting. The

Court states, "[vV]here medical treatment is at issue, it is typically the handicap itself

that gives rise to, or least contributes to, the need for services." That gives rise to a

query: Was the plaintiff returned to the hospital in protective custody for an evaluation

under the blue paper process or was she returned to the hospital for medical treatment?

If she was there for medical treatment, there was no discrimination, because, contrary to

her wishes, she received the goods, services, and accommodations of the hospital. If she

was there under some interpretation that this was simply a second phase to a previous

11

protective custody proceeding, she should have been treated under those provisions

and received appropriate accommodation for her diagnosed psychiatric condition. Said

another way, given the circumstances of her return, was the responsibility of

defendants solely to conduct an evaluation and not otherwise utilize the facilities, goods

and services without the proper procedure?9

Defendants argue that they are entitled to summary judgment on the disability

discrimination claims because there is no evidence of discriminatory animus. The

plaintiff argues that there is nothing in the Maine Human Rights Act to require a

finding of discriminatory animus on the part of the defendants. Again, the court

questions the gravamen of the discriminatory complaint. What was the accommodation

that was expected, medical treahnent or a psychiatric evaluation under a specific mental

health statute? The plaintiff was in the hospital precisely because her activity in

sending a message to the Governor was considered in the context of her previously

diagnosed mental condition. If the doctor intended to treat the plaintiff differently than

other patients under the same circumstances, it seems to be a relevant question of fact.

Defendants argue that the plaintiff cannot sustain a claim under the Maine

Human Rights Act because she did not request an accommodation. Plaintiff argues that

she specifically requested an explanation for the reason she was returned to the hospital,

and further, questioned the reason why she was required to stay overnight. Plaintiff

also asserts that the defendants should have known that she needed an accommodation

based upon all of the circumstances including the previous hospital visit. Obviously,

this is a question of fact.

9

The court is not aware of any authority in law enforcement officers to take a person into custody and

deliver them to a hospital for mental health treatment in the absence of the probable cause requirement of

the blue paper statute., 34-B M.R.S.A. §3862. Furthermore, it is not clear that sh e was in .fil:!X_ custody when

redelivered to the hospital.

12

The court finds that defendant MaineGeneral Medical Center may not be held

vicariously liable under the Maine Civil Rights Act. It is entitled to summary judgment

on that complaint. The court further finds that personal liability may be contemplated

under the Maine Human Rights Act and Dr. Kemmerer is not entitled to summary

judgment as to that claim as a matter of law. As to all other elements of the complaint

against the defendant Hospital and Doctor, the motion to dismiss and summary

judgment must be denied.

The entry will be:

ORDERED: defendants' motion to dismiss and for

summary judgment is GRANTED in part and

DENIED in part.

The clerk may enter this order on the docket by reference.

~

DATED: !- /(!-!'J

Donald J-I. Marden

Superior Court Justice

J

13

LINNELL, CHOATE & WEBBER

ATTORNEYS AT LAW

CURTIS WEBBER

FRANK W. LINNELL

JONS . OXMAN 83 PLEASANT STREET

190B·1977

RICHARD J . O'BRIEN

P.O. BOX 190 DONALD W. WEBBER

JOHN W. CONWAY

1906-1996

SONIA J. BUCK AUBURN, MAINE 04212 - 0190

PAUL A. CHOATE

A LIMITED LIABILITY PARTNERSHIP 1927-2007

JOHN R. LINNELL

MOLLY WATSON SHU KIE

PATRICIA C. SHOREY

PHONE 207-784-4563 1938·2010

FAX 207-784-1981 cwebber@lcwlaw.com

February 11, 2013

Maine Lawyers Review

PO Box 6663

Portland, ME 04103-6663

Dear Sirs:

I enclose a copy of Judge Marden's opinion in the case of Clifford v. Maine General

Medical Center, et al. which may not have come to your attention. This is a civil rights case

against the hospital and one of the doctors in the emergency department who participated in

committing Ms. Clifford to stay overnight in the hospital locked up in the psychiatric ward. Dr.

Kemmerer has filed an interlocutory appeal in this matter and has also requested Judge Marden

to report the issue of whether or not he was correct in denying summary judgment regarding

plaintiffs claims under the Maine Human Rights Act.

Sincerely,

Curtis Webber

CW/pmf

Enclosure

)