Benn v. Universal Health System, Inc.

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

6-17-2004

Benn v. Unvrsl Health Sys

Precedential or Non-Precedential: Precedential

Docket No. 01-3450

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PRECEDENTIAL District Court Judge: Honorable Mary A.

McLaughlin

UNITED STATES COURT OF (D.C. No. 99-cv-6526)

APPEALS ____________________

FOR THE THIRD CIRCUIT

____________ Submitted Under Third Circuit LAR

34.1(a)

No. 01-3450 December 4, 2003

____________

Before: SLOVITER, ALITO, Circuit

DONALD BENN, Judges, and OBERDORFER,* District

Court Judge

Appellant

(Opinion Filed: June 17, 2004)

v.

ROSS BEGELMAN

UNIVERSAL HEALTH SYSTEM, Begelman & Orlow

INC.; HORSHAM CLINIC; 411 Route 70 East

RAMESH ELURI, DR.; EILEEN Suite 245

WILCOX; MONTGOMERY Cherry Hill, New Jersey 08034

COUNTY MH-MR EMERGENCY Counsel for Appellant

SERVICE, d/b/a MONTGOMERY

COUNTY EM ERGENCY SERVICE, KEVIN J. O’BRIEN

INC.; VENU M UKERJEE, DR., Marks, O’Neill, O’Brien, & Courtney

Individually, severally, jointly and/or in 1880 JFK Boulevard

the alternative; Suite 1200

STEPHEN ZERBY, M.D.; Philadelphia, PA. 19103

MOHAM MAD QUASIM, DR., C/O

MONTGOMERY KENNETH D. POWELL, JR.

COUNTY EM ERGENCY SERVICE, Rawle & Henderson

INC. 50 BEECH DRIVE 334 West Front Street

NORRISTOWN, PA 2 nd Floor

19401 INDIVIDUALLY, SEVERALLY, Media, PA. 19063

JOINTLY AND/OR IN THE

ALTERNATIVE CHARLES W. CRAVEN

___________________ MARION H. GRIFFIN

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT *

The Honorable Louis F. Oberdorfer,

FOR THE EASTERN DISTRICT OF United States District Judge for the

PENNSYLVANIA District of Columbia, sitting by

designation.

Marshall, Dennehey, Warner, Coleman & Each time Benn called Horsham, he spoke

Goggin to Eileen Wilcox, an experienced crisis-

1845 Walnut Street line counselor. Benn told Wilcox that he

16 th Floor was looking for treatment for post-

Philadelphia, PA 19103 traumatic stress disorder and was

interested in Horsham. Benn admits that

Counsels for Appellees during one conversation he told Wilcox

that he was driving over the Tacony-

____________________ Palmyra Bridge. Wilcox claims that Benn

told her he had stopped his car and had

OPINION OF THE COURT considered jumping off the bridge. Benn

____________________ denies this. W ilcox told Benn that

Horsham did not make regular outpatient

Alito, Circuit Judge: appointments but that they would assess

his need for care if he came in.

This case concerns Donald Benn’s

short-term involuntary commitment to a Benn arrived at Horsham late that

psychiatric facility for an emergency evening and was quickly interviewed by

examination. After his release, Benn psychiatrist Dr. Ramesh Eluri. The

brought federal and state claims against interview lasted 40 minutes, and Dr. Eluri

those involved in his commitment. The claims that, during the interview, Benn

District Court granted summary judgment admitted to being depressed and suicidal.

in favor of all defendants. We affirm. Benn asserts that he never told Dr. Eluri

that he was suicidal and that Dr. Eluri

I. misunderstood him because of Dr. Eluri’s

poor English. After the interview, Dr.

Prior to the events at issue here, Eluri told Wilcox that he was concerned

Donald Benn was under the care of for Benn’s safety and that a petition for

therapist Dr. Jack Hartke and psychiatrist involuntary com mitm ent m ight be

Dr. Lynn Bornfriend, both of whom had necessary because Benn refused to seek

treated him for depression and post- treatment. Benn, however, did agree to

traumatic stress disorder. The treatment sign a “Contract for Safety,” which stated:

included anti-depressant medication.

I, Donald Benn on August

On August 15, 1998, Benn 15, 1998 agreed to keep

t e l ep h o n e d t he H o rs h am C li n ic myself safe and that if I feel

(“Horsham”) three times. Horsham, a any increase of suicidal

mental healthcare facility in Montgomery thoughts or feeling I will

County, Pennsylvania, is wholly owned by contact Horsham Clinic [or]

Universal Health System, Inc. (“UHS”). the police.” Below the

2

contra ct, B enn w rote : suicidal, feels unsafe and

“While there is no doubt dangerous to himself. He

w h a t-so-e ver that m y needs inpatient treatment.

mental/emotional health has

been G R E A T L Y App. 242.

compromised I feel as

certain as certain can be that The petition was reviewed by the

a few more days won’t hurt county administrator, who authorized the

(too much).” police to take Benn into custody. The

police went to Benn’s home, and he was

Wilcox asked Benn to remain at the clinic transported by ambulance to Montgomery

while Dr. Eluri looked over the contract, Co unty E m e r g e nc y Se rvic e I n c.

but Benn refused and left. (“MCES”), a private, not-for-profit

psychiatric hospital in Norristown,

Upon seeing the contract, Dr. Pennsylvania, that, by contract, handles all

Eluri’s concern about Benn’s safety grew, involuntary and emergency psychiatric

and he filed an application under a confinements in the county.

provision of Pennsylvania’s M ental Health

Procedures Act (MHPA), 50 Pa. Stat. Ann. Upon arrival at MCES, Benn was

§ 7302(a), requesting that Benn be placed in an isolated waiting room. He

examined to determine his need for was then seen by Dr. Stephen Zerby, an

treatment. See App. 240-42. The MCES psychiatrist, who conducted an

application stated: hour-long interview and decided, based on

the interview and Dr. Eluri’s petition, that

[Benn] said he had seriously Benn should be admitted for an emergency

thought about jumping from examination for the period permitted by

Coney Bridge [sic], while he the MHPA, 50 Pa. Stat. Ann. § 7302(d),

was driving. In fact, he i.e., not more than 120 hours. App. 244.

stopped the car. He admits The next day, August 16, Benn was

feeling suicidal now and interviewed by Dr. Mohammad Quasim,

feels unsafe and unstable. another MCES psychiatrist, who continued

He also believes that his the treatment started by Dr. Zerby. The

mental health is following day, August 17, Benn was seen

compromised and needs by Dr. Venu Mukerjee, yet another MCES

hospitalization. He also psychiatrist, who found him to have

says h e had suicidal “limited insight and obvious[] difficulties

thoughts consistently for the with impulse control, where he might have

past few weeks. He is verbalized suicidal intent while at

vague about his attempts... Horsham . . . . His insight is limited and

In my assessment, Pt. is very his judgment is definitely impaired.” App.

3

21. On August 18, Dr. Mukerjee noted procedural due process. The Court also

that “[Benn] is now contracting for safety granted summary judgment on the state

and has never been suicidal since his tort claims for all parties except Wilcox,

admission here.” He was then released. because it found that these parties were

App. 22. immune from such claims under Section

114 of the MHPA, 50 Pa. Stat. Ann.

During his time at MCES, Benn §7114. As for Wilcox, the Court found

was in contact with his common-law wife, that there was no evidence against her to

his treating therapist, a lawyer, and a support the state tort claims. Benn

friend. Benn claims that his detention appealed.

room had no toilet and that he was forced

to urinate on the walls. II.

In December 1999, Benn filed this We turn first to Benn’s § 1983

action in the United States District Court claim. Section 1983 provides in relevant

for the Eastern District of Pennsylvania part:

against Wilcox, Dr. Eluri, Horsham, UHS,

MCES, Dr. Mukerjee, Dr. Zerby, and Dr. Every person who, under

Quasim. Benn asserted claims under 42 color of an y statute,

U.S.C. § 1983 for alleged violations of his o r d i n a n c e , r e g u l a t i o n,

procedural and substantive due process custom, or usage, of any

rights, as well as numerous tort claims State or Territory or the

under P ennsylvania law , to wit, District of C olum bia ,

n e g l i g en ce/malpractice, intentional subjects, or causes to be

infliction of emotional distress, assault and subjected, any citizen of the

batte ry, neglig ence , and f alse United States or other

imprisonment. In addition, Benn sought person within the

punitive damages against all defendants. jurisdiction thereof to the

deprivation of any rights,

The parties filed cross-motions for privileges, or immunities

summary judgment. In July 2001, the secured by the Constitution

District Court granted summary judgment and laws, shall be liable to

in favor of all defendants. The Court held the party injured in an action

that Dr. Eluri, Wilcox, Horsham, and UHS at law, suit in equity, or

were not state actors and thus could not be other proper proceeding for

sued under §1983. In addition, assuming redress.

for the sake of argument that MCES, Dr.

Mukerjee, Dr. Zerby, and Dr. Quasim were To establish a claim under §1983, Benn

state actors, the Court held that they did must show that the defendants 1) were

not violate Benn’s right to substantive or

4

state actors 1 who 2) violated his rights designated facility for an emergency

under the Constitution or federal law. examination. 50 Pa. Stat. Ann. §

4

Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 7302(a)(1). In addition, a physician or

155 (1978).

A. 50 Pa. Stat. Ann § 7301(a).

4

50 P.S. § 7302(a) provides as follows:

Benn contends that Horsham, UHS,

Dr. Eluri, and Wilcox2 (the “Horsham

(a) A p p l i c a ti o n for

defendants”) were state actors because

Examination.--Emergency

they were acting pursuant to the MHPA.

e x a m i n a t io n m a y b e

Under the MHPA, a physician or other

undertaken at a treatment

“responsible party” may file an application

facility upon the

that may lead to the issuance of a warrant

certification of a physician

authorizing a person who is “severely

stating the need for such

mentally disabled and in need of

examination; or upon a

immediate treatment” 3 to be taken to a

warrant issued by the county

administrator authorizing

1 s u c h exam ination ; o r

“In cases under § 1983, ‘under color’

without a warrant upon

of law has consistently been treated as the

application by a physician or

same thing as the ‘state action’ required

other authorized person who

under the Fourteenth Amendment.”

has personally observed

Rendell-Baker v. Kohn, 457 U.S. 830,

conduct showing the need

838 (1982); see also Dluhos v. Strasberg,

for such examination.

321 F.3d 365, 374 (3d Cir. 2003).

2

For the purpose of summary judgment, (1) Warrant for Emergency

MCES, Dr. Mukerjee, Dr. Quasim, and Dr. Examination.--Upon written

Zerby conceded that they were “state application by a physician or

actors,” and therefore we do not decide other responsible party

that question. setting forth facts

constituting reasonable

3

A person is “severely mentally grounds to believe a person

disabled” “when, as a result of mental is severely mentally disabled

illness, his capacity to exercise self- and in need of immediate

control, judgment and discretion in the treatment, the county

conduct of his affairs and social relations administrator may issue a

or to care for his own personal needs is so warrant requiring a person

lessened that he poses a clear and present authorized by him, or any

danger of harm to others or to himself.” peace officer, to take such

5

other person who has observed a person it is determined that the person is “severely

engaging in conduct that provides mentally disabled and in need of

reasonable grounds to believe that the immediate treatment,” the treatment must

person is “severely mentally disabled and begin immediately. 50 Pa. Stat. Ann. §

in need of treatment” may take the person 7302(b). If it is determined at any time

to an approved facility for such an that the person is not in need of treatment,

examination. 50 Pa. Stat. Ann. § 7302(b). the person must be discharged, and in any

At the facility, the individual who brought event the person must be released within

the person thought to need treatment must 120 hours unless a certification for

make “a written statement setting forth the extended involuntary emergency treatment

grounds for believing the person to be in is filed under 50 Pa. Stat. Ann. § 7303. In

need of examination.” 50 Pa. Stat. Ann. § this case, the District Court held that,

7302(a)(2). A person taken to a facility because the Horsham defendants were

must be examined within two hours, and if merely involved in the application for

Benn’s commitment, they were not state

actors.

person to the facility

In Brentwood Acad. v. Tennessee

specified in the warrant.

Secondary Sch. Athletic Ass’n, 531 U.S.

288, 296 (2001), the Supreme Court noted

(2) Emergency Examination

that the criteria for determining whether

Without a Warrant.--Upon

state action is present “lack rigid

personal observation of the

simplicity,” but the Court identified factors

c o nduct of a person

that bear on the question. The Court

cons tituting reasonable

wrote:

grounds to believe that he is

severely mentally disabled

We have, for example, held

and in need of immediate

that a challenged activity

treatm ent, and (sic )

may be state action when it

physician or peace officer,

results from the State's

or anyone authorized by the

e xer c i s e o f "coe rciv e

county administrator may

power," [Blum v. Yaretsky,

take such person to an

457 U.S. 991, 1004 (1982)],

approved facility for an

when the State provides

emergency examination.

"significant encouragement,

Upon arrival, he shall make

either overt or covert," ibid.,

a written statement setting

or when a private actor

forth the grounds for

operates as a "willful

believing the person to be in

participant in joint activity

need of such examination.

with the State or its agents,"

.

6

[Lugar v. Edmondson Oil application for an emergency examination,

Co., 457 U.S. 922, 941 we see nothing in the MPHA that compels

(1982)] (Internal quotation or even significantly encourages the filing

marks omitted). We have of an application. See Rockwell v. Cape

treated a nominally private Cod Hosp., 26 F.3d 254, 258 (1 st Cir.

entity as a state actor when 1994) (no compulsion where state law

it is controlled by an merely permits physicians to petition for

"agency of the State," involuntary commitment but does not

Pennsylvania v. Board of mandate that they do so); Harvey v.

Directors of City Trusts of Harvey, 949 F.2d 1127, 1131 (11 th Cir.

Philadelphia, 353 U.S. 230. 1992) (no compulsion or encouragement

231 (1957) (per curiam), where state statutes not enacted to

when it has been delegated a encourage commitment); Spencer v. Lee,

public function by the State, 864 F.2d 1376,1379 (7 th Cir.1989) (same);

cf., e.g., [West v. Atkins, Janicsko v. Pellman, 774 F.Supp. 331,

487 U.S. 42, 56 (1988)]; 338-39 (M.D.Pa.1991) (“this court cannot

Edmonson v. Leesville hold that the standards set by the MHPA

Concrete Co., 500 U.S. 614, rise to the level of coercion”), aff'd, 970

627-628 (1991), when it is F.2d 899 (3d Cir. 1992) (table).

"entw ined wit h

governmental policies," or Second, the Horsham defendants

when gover nm ent is did not operate as “willful participant[s] in

"entwined in [its] joint activity with the State or its agents”

management or control," under Lugar, 457 U.S. at 941. In Lugar,

Evans v. Newton, 382 U.S. creditors moved for a prejudgment writ of

296, 299, 301 (1966). attachment, and the writ was issued by a

court clerk and executed by a sheriff. Id.

531 U.S. at 295. at 924. The debtor whose property was

attached brought an action asserting two §

In the present case, none of these 1983 claims against the creditors. Count

factors points toward the presence of state one claimed that the prejudgment

action. First, the M HPA, on which Benn attachment process permitted by state law

predicates his state action argument, did was “procedurally defective under the

not coerce the Horsham defendants to file Fourteenth Amendment.” Id. at 941.

the application that led to Benn’s Count two alleged that the creditors had

commitment. Nor did the MHPA provide invoked the attachment process in a way

“significant encouragement, either overt or that was “‘malicious, wanton, willful,

covert.” Blum, 457 U.S. at 1004. opressive [sic]” and unlawful under state

Although the MHPA permits a physician law. Id. at 940 (brackets in Supreme Court

or other “responsible party” to file an opinion). The Supreme Court held that the

7

first count stated a § 1983 claim because act according to the Act, and

“the procedural scheme” was “the product the high duty placed upon

of state action.” Id. By contrast, the Court them. Such intentional,

concluded that the second count did not reckless, and gross disregard

satisfy the state action requirement of the rules and standards

because “private misuse of a state statute they were bound by, the

does not describe conduct that can be Defendants intentionally

attributed to the State.” Id. The Court committed a horrible act

stated: “[t]hat [the creditor] invoked the upon Plaintiff.

statute without the grounds to do so could

in no way be attributed to a state rule or Id. at 429.

decision.” Id. at 940.

The crux of Benn’s complaint about

In this case, Benn’s constitutional the conduct of the Horsham defendants

claims against the Horsham defendants appears to be that they conducted a

parallel the claim found to be defective in “seriously defective evaluative process,”

Lugar. As Benn’s Memorandum of Law Appellant’s Br. at 10, and that he did not

in Support of his M otion for Summary meet the standard for emergency

Judgment makes clear, Benn’s theory was commitment under the MHPA. See App.

that these defendants violated his 429 (Memorandum in Support of

constitutional rights because they allegedly Summary Judgment); id. at 263 (expert

did not comply with the MHPA. See App. report). Benn’s constitutional claim

428-429. The portion of Benn’s against Horsham defendants is thus

Memorandum addressing his constitutional precisely the type of claim that Lugar

claims begins by stating: found to be inadequate to establish state

action.

Defendants had [a] duty and

obligation to follow the Third, this is clearly not a case in

rules and standards of the which nominally private persons were

Pennsylvania Mental Health controlled by an ag ency of the

Procedures Act. Such act Commonwealth. Benn makes no such

governed the circumstances allegations.

and procedures surrounding

the extreme action of Fourth, the conduct in question here

involuntarily committing an – applying for Benn’s emergency

individual. commitment – is not a “public function”

that the MHPA delegated to private

Id. at 428. The Memorandum then adds: persons. In considering the “public

function” issue, we must ask whether the

Defendants clearly failed to challenged action relates to a function that

8

has been “traditionally the exclusive the Horsham defendants. Thus, none of

prerogative of the State.” Jackson v. the factors identified in Brentwood

Metropolitan Edison Co., 419 U.S. 345 supports a finding of state action in this

(1974). Here, we have no basis for case.

concluding that petitioning for involuntary

confinement is or ever was the exclusive Nor does this case satisfy the

prerogative of the state, either in “symbiotic relationship” test that derives

Pennsylvania or in the country in general. from Burton v. Wilmington Parking

See Rockwell v. Cape Cod Hosp., 26 F.3d Authority, 365 U.S. 715 (1961). After

at 259 (“The history of involuntary Brentwood, our Court, sitting en banc,

treatment of the m entally ill in held that the “symbiotic relationship” test

M a ssach usetts d e m o n s t r a te s t h at continues to provide an additional, albeit

involuntary treatment has by no means “narrow,” basis for finding that private

been the exclusive prerogative of the action may fairly be attributed to the state.

State.”); Spencer v. Lee, 864 F.2d 1376, Crissman v. Dover Downs Entertainment,

1380-81(7th Cir. 1989)(holding that civil Inc., 289 F.3d 231, 242 (3d Cir. 2002).

commitment in Illinois was not a This theory, however, has no application

traditional and exclusive public function); here. A “symbiotic relationship” demands

Bodor v. Horsham Clinic, Inc., 1995 WL “a close association of mutual benefit”

424906 at *8 (E.D.Pa. July 19, 1995) between the state and the private entity or

(Pennsylvania). person. Crissman, 289 F.3d at 240. In

Burton, such a relationship existed

Fifth, this case does not involve between a city that owned a parking

“entwinement” within the meaning of structure and a restaurant to which it

Brentwood. There, the Court held that an leased space. In this case, there is no

interscholastic athletic association was indication that the Horsham defendants

entwined with the state where the great made any profit from the petition to

majority of the association’s member commit Benn, and there certainly is no

schools were public, representatives of the evidence that the government received any

schools acting in their official capacities tangible benefit from Horsham, save a

selected members of the association’s possible increase in the general welfare.

governing bodies, state officials also sat on “That a private entity performs a function

those bodies in an ex officio capacity, the which serves the public does not make its

association was largely financed by gate acts state action.” Rendell-Baker v. Kohn,

receipts from member-school tournaments, 457 U.S. 830. Thus, neither the factors

and association employees participated in cited in Brentwood nor the symbiotic

the state retirement system. 531 U.S. at relationship theory shows the presence of

298-300. In this case, Benn does not state action in this case.

allege that the Commonwealth was

“entwined” in any comparable sense with The decisions of other courts of

9

appeals and those of district courts in this has no merit.

circuit also support the conclusion that

persons who petition for the involuntary First, even if these defendants

commitment of others are not state actors. violated the MHPA, this would not

See Rockwell v. Cape Cod Hosp., 26 F.3d establish a §1983 claim. “The plain

at 257-58; Harvey v. Harvey, 949 F.2d language of section 1983, interpreted and

1127, 1131 (11th Cir.1992); Spencer, 864 underscored by the Supreme Court in

F.2d at 1380-81; Doby v. Decrescenzo, Maine v. Thiboutot, 448 U.S. 1 (1980),

1996 WL 510095 (E.D.Pa. Sept. 9, 1996), solely supports causes of action based

aff’d, 118 F.3d 1575 (3rd Cir. 1997) upon violations, under the color of state

(table); Bodor v. Horsham Clinic, Inc., law, of federal statutory law or

supra (thoroughly analyzing the “state constitutional rights. Section 1983 does

actor” question); Savacool v. Delaware not provide a cause of action for violations

County Department of Mental Health, of state statutes.” Brown v. Grabowski,

1993 WL 21209, *6 (E.D.Pa. Jan.25, 922 F.2d 1097, 1113 (3d Cir. 1990); see

1993); Janicsko v. Pellman, 774 F.Supp. also Flagg Bros., Inc. v. Brooks, 436 U.S.

331, 339 (M.D.Pa.1991), aff'd, 970 F.2d 149, 155 (1978).

899 (3d Cir.1992).

Second, in an emergency situation,

Our analysis leads to the same a short-term commitment without a

result. We thus hold that the Horsham hearing does not violate procedural due

defendants were not state actors. process. In a similar case dealing with the

MHPA, we observed that “[i]t may be

B. reasonable . . . for a state to omit a

provision for notice and a hearing in a

Benn claims that MCES, Dr. statute created to deal with emergencies,

Mukerjee, Dr. Zerby, and Dr. Quasim, all particularly where the deprivation at issue,

of whom conceded that they were state in this case detention for a maximum of

actors for purposes of the motion for several hours to permit an examination,

summary judgment, violated both his continues for only a short period of time.”

procedural and substantive due process Doby v. DeCrescenzo, 171 F.3d 858, 870

rights. We disagree. (3d. Cir. 1999); see also Project Release v.

Prevost, 722 F.2d 960, 974 (2d Cir. 1983);

1. Covell v. Smith, 1996 WL 750033

(E.D.Pa. Dec. 30 1996); Luna v. Zandt,

Benn argues that MCES and its 554 F.Supp. 68, 76 (S.D.Tex. 1982).

doctors violated procedural due process by

failing to comply with the MHPA and by Benn’s case clearly presented an

failing to grant him a hearing before he emergency situation. Both his calls to the

was involuntarily confined. This argument Horsham clinic and his note at the bottom

10

of his Contract for Safety suggested to the it may fairly be said to shock the

doctors that Benn was highly unstable. contemporary conscience.” County of

Furthermore, he was committed for a Sacramento v. Lewis, 523 U.S. 833, 847,

“short period of time” and was released fn. 8 (1998). Whether an incident “shocks

upon Dr. M ukerjee’s evaluation that he the conscience” is a matter of law for the

was no longer suicidal. While committed, courts to decide, see Rochin v. California,

Benn was constantly evaluated by the 342 U.S. 165, 172 (1952), and we have

MCES physicia ns. Under these pr e viously he ld that involun ta ry

circumstances, we hold that the defendants commitment under the MHPA does not in

did not violate Benn’s rights by not itself violate substantive due process. See

granting him a hearing before he was Doby v. DeCrescenzo, 171 F.3d at 871 n.

committed. 4 (“[T]he MHPA authorizes seizures that

are ‘reasonable’ under the Fourth

Third, we see no evidentiary basis Amendment [and so] the MHPA meets the

in the record for Benn’s claim that MCES rationality test imposed by substantive due

maintains a policy that denied him his due process analysis.”)

process rights. On the contrary, MCES

guidelines track the MHPA, which does In this case, none of the specific

not deny due process. See Monell v. conduct that Benn alleges shocks the

Department of Social Services, 436 U.S. conscience. First, Benn’s complaints

658, 694 (1978). In sum, we hold that about Drs. Zerby or Mukerjee are

Benn’s procedural due process rights were insufficient. Benn claims that Drs. Zerby

not violated. a n d M u k e r j e e e x h i b i te d “ t o t a l

incompetenc[e] . . . . [by failing] to

2. understand that plaintiff was showing no

suicidal ideation which merited his

Benn appears to argue that his involuntary confinement.” B r. of

substantive due process rights were Appellants at 13. But whether or not Drs.

violated in three ways. First, he claims Zerby and Mukerjee properly analyzed

th a t D r s . Zerb y and M uker je e Benn’s condition, their conduct did not

incompetently failed to recognize that he violate substantive due process. In view of

was not suicidal. Second, he asserts that the events that led to Benn’s commitment

he was kept in a room without a toilet. and the steps taken after his arrival at

Third, he claims that he was forcibly given MCES, the doctors’ conduct was not

antipsychotic medication. conscience-shocking.

“[I]n a due process challenge to Second, Benn’s allegation that he

executive action, the threshold question is was temporarily kept in a room without a

whether the behavior of the governmental toilet is insufficient without further

officer is so egregious, so outrageous, that aggravating evidence to meet the high

11

standard needed to state a substantive due m i s c onduct or gro ss

process violation. As the District Court n e g l i g en c e , a c o u n ty

pointed out, Benn failed to produce any administrator, a director of a

evidence that the defendants were aware facility, a physician, a peace

that he needed to use a bathroom or that o f f ic e r or a ny o t h er

“MCES had a custom or policy of refusing authorized person who

to allow patients to use the bathroom.” participates in a decision

App. 31. that a person be examined or

treated under this act, or that

Third, the administration of a person be discharged, or

antipsychotic drugs is not shocking to the placed under partia l

conscience under the circumstances hospitalization, outpatient

present here. We have held that care or leave of absence, or

authorities may administer antipsychotic that the restraint upon such

drugs over a patient’s objection “where the pers o n b e o t h e rwis e

decision is a product of the authorities’ reduced, or a county

professional judgment.” White v. administrator or other

Napoleon, 897 F.2d 103, 112 (3d Cir. authorized person who

1990). See also Rennie v. Klein, 720 F.2d denies an application for

266, 269 (3d Cir. 1983). In this case, voluntary treatment or for

however, as the District Court noted, Benn involunta r y e me r ge ncy

has not alleged that he objected to the examination and treatment,

administration of the medication. App. 32. shall not be civilly or

Under these circumstances, Dr. Zerby’s criminally liable for such

conduct did not shock the conscience. decision or for any of its

consequences.

III.

50 Pa. Stat. Ann. § 7114(a). As the

Benn next contends that the District District Court properly found, Wilcox, a

Court erred in granting summary judgment crisis-line counselor who had no effect on

in favor of the defendants on his state tort the decision to commit Benn, is not

claims. We disagree. covered under the strict language of the

immunity provision. It is clear, however,

A. that the remaining defendants qualify for

immunity if they did not engage in “willful

The MHPA gives broad immunity misconduct or gross negligence.” See

to physicians and others who participate in Doby v. DeCrescenzo, 171 F.3d 858, 875

the involuntary commitment process: (3d Cir. 1999).

In the absence of willful Under Pennsylvania law, “gross

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negligence” is “more egregiously deviant ps yc h i a t r i c t r e a tm e n t ,

conduct than ordinary carelessness, especially as they relate to

inadvertence, laxity or indifference.” involuntary commitment

Rather, gross negligence requires conduct a n d f i n d t h at t h e se

that is “flagrant, grossly deviating from the Depositions show clear and

ordinary standard of care.” Alrbight v. convincing evidence that

Abington Memorial Hospital, 696 A.2d M r . B e nn w a s

1159, 1164 (Pa. 1997). “Willful inappropriately involuntarily

misconduct” occurs when “the danger to committed and held in the

the plaintiff, though realized, is so p s yc h i a t r i c h o s p i t a l,

recklessly disregarded that, even though s u b j e c te d t o a b u s i v e

there be no actual intent, there is at least a mistreatment, and a victim

willingness to inflict injury, a conscious of medical malpractice and

indifference to the perpetration of the negligence.

wrong.” Krivijanski v. Union R. Co., 515

A.2d 933, 937 (Pa. Super. Ct. 1986). We agree with the District Court

that the assertions in this report do not

Here, none of the defendants comport with the facts and that,

committed either gross negligence or considering the record as a whole, no

willful misconduct. The only evidence reasonable jury could find that the doctors

that Benn puts forward to show such acted with gross negligence or willful

behavior consists of the two expert reports misconduct. The doctors all participated

of his treating psychiatrist, Dr. Bornfriend. in meetings, took careful notes, and

In her second report, Dr. Bornfriend prescribed a careful routine and course of

alleges: treatment for Benn. He was released as

soon as they found him to be safe. Their

There appears to be behavior did not meet the legal definition

evidence, however, that of either gross negligence or willful

some of the mistreatment misconduct. Since none of the doctors

Mr. Benn endured appeared committed any such conduct, we will also

secondary to even more affirm the dismissal of the related claims

malignant causes [than against MCES. See Farago v. Sacred

simple negligence], raising Heart Hospital, 562 A.2d 300, 303 (Pa.

i s s u e s o f d e l ib e r a te 1989).

indifference, arrogance,

condescension, and punitive B.

hostility from these doctors.

I find shocking the level of Finally, we hold that the District

disregard for standard Court properly dismissed the state tort

p r a c t ic e s i n v o l v e d in claims against Eileen Wilcox. There is no

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evidence whatsoever that would even

begin to support any of those claims

against Wilcox.

IV.

For the reasons explained above,

we affirm the order of the District Court.

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