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
)