Fecteau v. Spring Harbor Hosp.

• Court: Superior Court of Maine
• Decided: February 28, 2014
• Docket: CUMcv-10-649
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DO~KET NO. C,Yi0~6w ,1ftltl- LL-ffY! .. ;5i;;zf .2o;j' STEPHEN A. FECTEAU, et al.,

Plaintiffs ORDER ON MOTION FOR v. SUMMARY JUDGMENT

SPRING HARBOR HOSPITAL, et al.,

Defendants

Before the Court is the defendants' motion for summary judgment.

Defendants allege that they are immune from suit under the Maine Tort Claims

Act. 14 M.R.S. § 8103(1) (2013). For the following reasons, the motion is denied.

BACKGROUND

Kathryn Fecteau suffered from depression for much of her adult life.

(Opp. S.M.F. <][ 39.) On 2/27/10, Ms. Fecteau presented for voluntary admission

to Spring Harbor Hospital through the Maine Medical Center Emergency

Department. (Opp. S.M.F. <][ 43.) Ms. Fecteau was admitted as a voluntary patient

and payment for her admission was authorized by her CIGNA health insurance.

(Opp. S.M.F. <][ 45.)

Defendant Dr. Daria Hanson first saw Ms. Fecteau at Spring Harbor on

3/1/10. (Opp. S.M.F. <][ 46.) During that first visit, Dr. Hanson noted that Ms.

Fecteau was depressed and had suicidal thoughts. (Opp. S.M.F. <][ 46.) Ms.

Fecteau expressed an interest in electroconvulsive therapy ("ECT") to treat her

depression. (Opp. S.M.F. <][ 46.) During the next five days after that first visit, Dr.

Hanson took steps to enroll Ms. Fecteau in ECT. (Opp. S.M.F. <][ 47.) Dr. Hanson consulted another psychiatrist at Spring Harbor for a second opinion about Ms.

Fecteau; the other psychiatrist concluded that ECT was not an unreasonable

treatment option. (Opp. S.M.F. '][ 48.)

On 315110, Dr. Hanson told Ms. Fecteau that she was scheduled to begin

ECT treatment at Maine Medical Center on 318110. (Opp. S.M.F. '][ 49.) Shortly

before the ECT treatment was scheduled to begin on 3 I 8 I 10, the treatment was

cancelled because of medical concerns. (Opp. S.M.F. '][ 50.) The plaintiffs'

allegation that the "cancellation had nothing to do with any change in psychiatric

diagnosis" is not supported by the record citation. (Opp. S.M.F. '][ 51; Reply

S.M.F. '][50.)

After the ECT was cancelled, Ms. Fecteau became angry, disappointed,

and dysregulated. (Opp. S.M.F. '][ 52.) She returned to her room, tied a sheet

around her neck, and attempted to suffocate herself with a pillow. (Opp. S.M.F. '][

52.) After this incident, Ms. Fecteau was placed on one-on-one observation. (Opp.

S.M.F. '][ 53.) When William Gelinas, a physician's assistant, met with Ms.

Fecteau later that morning, she demanded to be discharged from Spring Harbor.

(Opp. S.M.F. '][54.)

Mr. Gelinas recorded a diagnosis of "Major Depressive Disorder,

recurrent, severe, without psychotic features. Consider Anxiety Disorder, [Not

Otherwise Specified], PTSD, chronic symptoms." (Opp. S.M.F. '][ 54.) He

concluded that Ms. Fecteau required extended involuntary commitment because

she posed a risk of harm to herself. (Opp. S.M.F. '11: 54.) Mr. Gelinas ordered the

preparation of an application for involuntary commitment and signed the order

2 as the certifying examiner. 1 (Opp. S.M.F. Cf[ 55.) Later in the day on 318110, Ms.

Fecteau required a floor hold and restraint and again was placed on one-on-one

observation. (Opp. S.M.F.

authorizations for Spring Harbor to speak with her family members. (Opp.

S.M.F.

On 3 I 10 I 10, Ms. Fecteau agreed to participate in a treatment meeting the

following day with her husband, daughter, and Dr. Hanson. (Opp. S.M.F. Cf[ 58.)

At the meeting, Dr. Hanson read to them the criteria for the diagnosis of

borderline personality disorder; Dr. Hanson felt that diagnosis described Ms.

Fecteau. (Opp. S.M.F.

borderline personality disorder would not respond well to ECT treatment. (Opp.

S.M.F.

S.M.F.

On 3110110 at 1:30 p.m., Dr. Hanson initiated the "white paper" process

to continue Ms. Fecteau's involuntary admission. 2 (Opp. S.M.F.

the treatment meeting, Ms. Fecteau remained angry and focused on discharge.

(Opp. S.M.F.

and just leave here and kill myself." (Opp. S.M.F.

conversation, Dr. Hanson allowed Ms. Fecteau to remain in her room with

checks every fifteen minutes. (Opp. S.M.F.

Fecteau hanged herself with the shower curtain in her room. (Opp. S.M.F.

She was pronounced dead on 3111110 at 9:25p.m. (Opp. S.M.F.

1 Under 34-B M.R.S. § 3863(2) (2013), an application for involuntary commitment must be accompanied by a certifying examination signed by a medical practitioner. 2 Under 34-B M.R.S. § 3863(5-A), to continue hospitalizing an involuntarily admitted patient for longer than three days, the hospital must get a court order under section 3864.

3 PROCEDURAL HISTORY

In the notice of claim filed 12 I 23 I 10 and the complaint filed 10 I 29 I 12, the

plaintiffs allege Dr. Hanson and Spring Harbor Hospital, through Its agents and

employees, breached the applicable standard of care in the treatment and care of

Ms. Fecteau. They allege Ms. Fecteau endured conscious pain and suffering and

the heirs have been damaged. Defendants moved for summary judgment on

9 I 6 I 13 on all counts of the complaint.

DISCUSSION

1. Standard of Review

"Summary judgment is appropriate when there is no genuine issue of

material fact that is in dispute and, at trial, the parties would be entitled to

judgment as a matter of law." Fitzgerald v. Hutchins, 2009 ME 115,

382. "An issue is genuine if there is sufficient evidence supporting the claimed

factual dispute to require a choice between the differing versions; an issue is

material if it could potentially affect the outcome of the matter." Brown Dev.

Corp. v. Hemond, 2008 ME 146,

to establish that their affirmative defense bars plaintiffs' claim. See Baker v.

Farrand, 2011 ME 91,

defense of a statute of limitations has the ultimate burden of establishing without

dispute as to a material fact that the cause of action accrued outside of the

limitations period.").

2. Discovery Related to Defendants' Affirmative Defense

Plaintiffs contend that, despite their discovery requests, the documents

related to the defendants' affirmative defense of immunity were not provided to

them until the defendants filed their motion for summary judgment. The

4 plaintiffs requested in discovery all documents related to any affirmative defense

the defendants planned to assert in the case. (Opp. S.M.F.

response first referenced previously filed objections and then stated that the

materials would be provided "according to the Panel Chair's Scheduling Order

and the Maine Rules of Civil Procedure." (Opp. S.M.F.

originally objected that the request was premature and called for disclosure of

attorney work product protected by M.R. Civ. P. 26(b)(3). (Reply S.M.F.

Defendants now argue the documents were not withheld in bad faith and the

discovery request did not identify the requested documents with "reasonable

particularity" as required by M.R. Civ. P. 34(b). (Reply S.M.F.

In his affidavit, defendants' attorney Christopher Taintor states he hoped

he would be able to locate a signed contract between Spring Harbor Hospital· and

DHHS. (Reply S.M.F.

not until late August 2013 that he decided he would have to file a summary

judgment motion without having a copy of any signed agreement. (Reply S.M.F.

Attorney Taintor attached to his motion other documents that would help prove

a contract between Spring Harbor Hospital and the DHHS existed. (Reply S.M.F.

during discovery. (Opp. S.M.F.

Attorney Taintor first began the effort to locate a signed agreement in

September 2012. (Reply S.M.F.

one year later, Mr. Taintor continued to hope a signed contract would be located.

(Reply S.M.F.

(12/7 /12 Scheduling Order.) The documents attached to the defendants' motion

5 were located before this deadline but not produced. (Reply S.M.F. «}[ 93; Taintor

Aff. «}[«}[ 4, 6-7.)

Defendants argue further the plaintiffs' discovery request was improper

under the rules. The defendants rely on federal cases interpreting the reasonable

particularity requirement. See,~ Seifried v. Portfolio Recovery Assocs., LLC,

No. 12-CV-32-JHP, 2013 WL 3340685 (E.D. Okla. July 2, 2013). In Seifried, the

plaintiffs requested "Any and all documents in the possession or control of

Defendant which any of Defendant's claims are in any way relevant to the

subject matter of the instant lawsuit." Id. at *5. The court determined this request

was impermissibly broad and unspecific. Id. at *5. In this case, the plaintiffs'

request was more narrow. Further, the defendants did not make during the

discovery period the objection they now assert. Instead, the defendants

responded that they would comply with the request within the time limits

required by the rules and the court's scheduling order. (Opp. S.M.F. «}[ 93.)

In Longley v. Knapp, the Longleys filed a motion for summary judgment

after the discovery period ended and included affidavits and materials "not

revealed during the discovery period although the evidence fell squarely within

Knapp's discovery requests." Longley v. Knapp, 1998 ME 142, «}[ 6, 713 A.2d 939.

The Law Court determined the trial court acted within its discretion in excluding

the evidence, a sanction that reflected the plaintiffs' bad faith and prejudice to

the defendant. Id. «}[ 8. In this case, the defendants agreed to produce the

documents and did not.

In this case, the court previously ordered a hearing on sanctions for

defendants' failure to produce documents in this case in spite of three orders for

production. See 3/12/13 Order. By letter to the court dated 3/18/13, the

6 plaintiffs informed the court they did not agree that sanctions were in order

because "Spring Harbor acted to assert a strongly-held view of the law."

(3/ 18/13 Letter.) Plaintiffs requested the court reconsider its order; accordingly,

no sanctions were ordered

Regarding this second instance of defendants' failure to produce

documents in a timely manner, plaintiffs argue "[t]here is no excuse for

Defendants' failure to produce these documents during the course of discovery."

(Pis.' Brief at 18.) The Court defers the issue of sanctions until trial and until any

motions in limine are filed. See Longley, 1998 ME 142,

("Sanctions may serve to penalize non-compliance, remedy the effects of non-

compliance, and to serve as a deterrent.").

3. Involuntary Commitments and Immunity

Defendants claim they were acting as government employees in treating

Ms. Fecteau after she was involuntarily held at Spring Harbor Hospital. They

claim they are immune from suit under 14 M.R.S. § 8103 (2013), which provides:

"Except as otherwise expressly provided by statute, all governmental entities

shall be immune from suit on any and all tort claims seeking recovery of

damages." 34-B M.R.S. § 3861 provides the following for a nonstate mental

health institution: "The institution, any person contracting with the institution

and any of its employees when admitting, treating or discharging a patient under

the [involuntary commitment provisions] under a contract with the department,

for purposes of civil liability, must be deemed to be a governmental entity or an

employee of a governmental entity under the Maine Tort Claims Act." 34-B

M.R.S. § 3861(1) (2013).

7 a. Common Law Immunity

Prior to the enactment of 34-B M.R.S. § 3861, the Law Court extended

immunity to a psychiatrist employed by a nonstate mental health hospital who

examined an individual pursuant to the involuntary commitment statute at the

request of the Cumberland County jail. Taylor v. Herst, 537 A.2d 1163, 1164 (Me.

1988). The Taylor Court found that even though the doctor is not a state

employee, "he is acting in an official capacity on behalf of the State when

performing the task of determining, for involuntary commitment purposes,

whether a 'person is a mentally ill individual and because of his illness, poses a

likelihood of serious harm.'" Id. at 1165. In a similar case, the Law Court

determined that a psychiatrist at Maine Medical Center was immune from suit

when deciding whether a patient "should be either involuntarily committed or

voluntarily admitted to AMHI." Clark v. Me. Med. Ctr., 559 A.2d 358, 360 (Me.

1989). Although the doctor in Clark was not acting under any statute, the court

determined the patient "went to MMC solely because AMHI procedures

required it, and that the only diagnosis and treatment sought was admission to

AMHI." Id. at 360.

Taylor and Clark apply only to medical practitioners making the initial

determination of whether a patient should be involuntarily committed. The cases

do not address the issue of immunity for institutions that provide care to

involuntarily admitted patients.

In this case, Ms. Fecteau was admitted under the emergency procedures in

34-B M.R.S. § 3863. 3 (Supp. S.M.F.

3 The record does not show whether the hospital obtained a judge's endorsement for the emergency involuntary commitment-within 24 hours as required by the statute. See In re

8 Taylor and Clark does not apply because the hospital admitted Ms. Fecteau and

continued to treat her after her emergency involuntary admission.

b. Statutory Immunity

Soon after Clark was decided, the legislature enacted 34-B M.R.S. § 3861,

which provides:

1. Nonstate mental health institution. The chief administrative officer of a nonstate mental health institution may receive for observation, diagnosis, care and treatment in the institution any person whose admission is applied for under any of the procedures in this subchapter. An admission may be made under the provisions of section 3863 only if the certifying examination conducted pursuant to section 3863, subsection 2 was completed no more than 2 days before the date of admission. A. The institution, any person contracting with the institution and any of its employees when admitting, treating or discharging a patient under the provisions of sections 3863 and 3864 under a contract with the department, for purposes of civil liability, must be deemed to be a governmental entity or an employee of a governmental entity under the Maine Tort Claims Act, Title 14, chapter 741.

A "nonstate mental health institution" is defined as "a public institution, a

private institution or a mental health center, which is administered by an entity

other than the State and which is equipped to provide inpatient care and

treatment for the mentally ill." 34-B M.R.S. § 3801(6). This is contrasted with a

"designated nonstate mental health institution," which is defined as "a nonstate

mental health institution that is under contract with the department for receipt

by the hospital of involuntary patients." 34-B M.R.S. § 3801(1-A). Immunity is

granted only to "designated nonstate mental health institutions," institutions that

receive involuntary patients "under a contract'' with the DHHS.

Marcia E., 2012 ME 139, <][ 6, 58 A.3d 1115 ("Under no circumstances may a hospital hold a person against his or her will for longer than twenty-four hours unless the hospital has obtained a judge's endorsement.").

9 In Lever v. Acadia Hospital Corp., the Law Court explained the origin of

the "contract'' language in the law:

The "contract" language in the original bill was not discussed at all in the original Statement of Facts. The first reference to the "contract'' language appears in a Fiscal Note to an amendment which substantially rewrote the language from the original draft bill. It notes that the Department of Mental Health and Mental Retardation "will not contract with any facility that would incur costs beyond those able to be reimbursed within the department's resources." The revised Statement of Facts with this amendment indicates that the amendment "applies specified provisions of the Maine Tort Claims Act to hospitals accepting involuntary commitments of mental patients under a contract with the Department of Mental Health and Mental Retardation."

Lever v. Acadia Hosp. Corp., 2004 ME 35,

omitted). The legislative history behind this section further "notes in part that the

purpose of the legislation was 'to facilitate the admission of involuntary patients

to community hospitals with psychiatric units in order to relieve overcrowding

at state mental health institutions."' Id.

limited legislative history speaks exclusively of commitments, and expanding the

ability of private hospitals to accept involuntarily committed patients." Id.

Similarly, in Doe v. Graham, the Law Court reiterated that "the statute's express

grant of governmental status to facilities 'under a contract' with the Department

of Health and Human Services is intended to encourage nonstate hospitals to

accept committed patients by encompassing those facilities within the provisions

of Tort Claims Act Immunity." Doe v. Graham, 2009 ME 88,

4. Existence of a Contract

10 The primary issue is whether Ms. Fecteau was involuntarily admitted

"under a contract with the department." 4 If yes, the hospital and its staff must be

may be government employees. If no, the private hospital and its staff are not

government employees.

Defendants are unable to produce a signed written contract between

Spring Harbor Hospital and the Department of Health and Human Services5

(DHHS) covering the time period from July 1, 2007 to June 30, 2010. (Supp.

S.M.F. «JJ 7.) The defendants nevertheless argue that there was an implied

contract between Spring Harbor and DHHS. Defendants rely on Nightingale v.

Leach to argue there is no effective difference between an express contract and an

implied-in-fact contract. Nightingale v. Leach, 2004 ME 22, «JJ 4, 842 A.2d 1277.

Although defendants have failed to produce a signed written contract

between DHHS and Spring Harbor for the time period relevant to this case, they

have produced contracts covering other time periods. They offer a signed

contract that was in effect between 7 I 6 I 05 and 6 I 30 I 06 and two unsigned

versions of contracts that would have covered 711107 to 6130110. (Supp. S.M.F.

«JJ«JJ 2, 7.) Defendants also offer the current contract between DHHS and Spring

Harbor, effective between 711112 and 6130114. (Supp. S.M.F. «JJ 9.) The terms of

all of these contracts differ considerably.

The President and Chief Executive Officer of Spring Harbor Hospital,

Dennis King, believes since May 2005 there has been an understanding, which

has not changed substantially, regarding Spring Harbor Hospital's acceptance

4 Plaintiffs do not address defendants' arguments regarding discretionary functions and insurance. (Defs.' Brief 11-18.) 5 The "department" referenced in 34-B M.R.S. § 3861 is the Department of Health and Human Services. See 34-B M.R.S. § 3861(1)(D).

11 and treatment of patients who are involuntarily committed. (Supp. S.M.F. <[ 5.)

The plaintiffs correctly note that the cited reference, Mr. King's affidavit,

supports the fact that Mr. King believes there has been an understanding; the

affidavit does not support the statement of fact that "[s]ince at least May 2005,

the understanding and agreement between Spring Harbor Hospital and the

Department of Health and Human Services, pertaining to Spring Harbor's

acceptance and treatment of patients who require involuntary admission and

commitment, has not changed substantially." (Rep. S.M.F. <[ 5.) Defendants also

rely on an email and "allocation letter" from a representative at DHHS sent to

Spring Harbor on 6/8/10 to inform the hospital that it was "time to renew your

agreement with the department." (Supp. S.M.F. <[ 8.)

The existence of a contract is generally a question for the jury. Sullivan v.

Porter, 2004 ME 134, <[ 13, 861 A.2d 625; see also Stanton v. Univ. of Me. Sys.,

2001 ME 96, <[ 12, 773 A.2d 1045 ("Whether a contract, express or implied, exists

is a question of fact."); Agway, Inc. v. Ernst, 394 A.2d 774, 777 (Me. 1978) ("The

existence of an agreement, involving as it does so intricately the conduct of the

parties, is appropriately a question for the trier of fact."). In Stanton, the Law

Court articulated the requirements for proving an implied contract:

To establish a legally binding agreement the parties must have mutually assented to be bound by all its material terms; the assent must be manifested in the contract, either expressly or impliedly; and the contract must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liabilities of the parties. For a contract to be enforceable, the parties thereto must have a distinct and common intention which is communicated by each party to the other.

Stanton, 2001 ME 96, <[ 13, 773 A.2d 1045 (internal citations and quotations

omitted). Although the defendants have submitted evidence that Spring Harbor

believed a contract was in effect, the only evidence the DHHS believed a contract

12 was in effect is the email and letter with the "time to renew" language. This

evidence is insufficient to establish conclusively the existence of a contract. The

jury must decide whether a contract between DHHS and Spring Harbor existed

during the time period relevant to this case.

5. Terms of the Contract

Even if there was an implied contract, defendants concede that the terms

of the contract are uncertain. The defendants argue, however, that although the

terms of the contract are uncertain, the precise terms are not material to finding

immunity in this case. (Defs.' Reply Brief, page 5). Under 34-B M.R.S. § 3861,

emergency involuntary commitments are not limited to hospitals that have

contracted with DHHS. See 34-B M.R.S. § 3861(1) (referring to nonstate mental

health institutions as opposed to designated nonstate mental health institutions).

Immunity, on the other hand, is limited to such hospitals that are taking patients

"under a contract" with DHHS. See 34-B M.R.S. § 3861(1)(A). Thus, the statute

contemplates a scenario in which a nonstate hospital with no contract with

DHHS could involuntarily commit a patient. See Lever 2004 ME 35, C)[ 18, 845

A.2d 1178 (discussing the legislative history of the immunity statute and

concluding that it was enacted to "expand[] the ability of private hospitals to

accept involuntarily committed patients"). Thus, even if Spring Harbor had a

contract with DHHS, it is not certain that Ms. Fecteau was admitted pursuant to

that contract. The circumstances surrounding Ms. Fecteau's involuntary

commitment make the precise terms of the contract relevant in this case.

There are issues of material fact regarding the terms of any contract

between Spring Harbor and DHHS. For example, one of the unsigned 2007

contracts provides: "The Department will reimburse the Provider for all mental

13 health and substance abuse treabnent services provided by the Hospital to

Authorized Clients during an Episode of Care." (Opp. S.M.F.

was initially voluntarily admitted to Spring Harbor. (Opp. S.M.F.

was authorized by her CIGNA health insurance. (Opp. S.M.F.

does not reflect whether DHHS was billed for Ms. Fecteau's care or whether

Spring Harbor was reimbursed for that care.

6. State Action

The plaintiffs argue there is insufficient state action in this case on which

to base immunity. They rely in part on the Superior Court case Saunders v.

Tisher (Penobscot County, Hjelm,].), in which the court found "that a private

physician who participates in the process of involuntarily committing a person to

a psychiatric hospital and participates in that person's resulting confinement at

the private hospital does not act under color of law." Saunders v. Tisher, 2005

Me. Super. LEXIS 197, *24-25 (Mar. 28, 2005) aff' don other grounds, 2006 ME 94,

902 A.2d 830. The Saunders court pointed out, however, that whether a private

party is a state actor for the purposes of a federal claim presents a different legal

question than whether that party is entitled to civil immunity under state law:

The enacbnent of section 3861(1)(A) appears to have resulted from a legislative recognition that physicians' commibnent assessments and decisions should not be influenced by the prospect of civil liability. Such a conclusion, however, should not be mistaken for a determination that, under a different set of legal principles, such physicians in fact act under color of law when they make those kinds of assessments and decisions.

Id. at *22-23 (internal citations omitted). Thus, whether Spring Harbor is a state

actor for purposes of federal law is, in this instance, inapposite to whether it has

civil immunity under state law.

14 The plaintiffs next argue that it would be unconstitutional to extend

immunity to Spring Harbor. Plaintiffs first argue a broad reading of immunity

here would violate their due process rights. Pursuit of a negligence claim is not a

fundamental right. Me. Med. Ctr. v. Cote, 577 A.2d 1173, 1177 (Me. 1990).

Accordingly, extending immunity to private hospitals that accept involuntarily

committed patients under a contract with DHHS is subject to rational basis

review. See State v. Haskell, 2008 ME 82, lJ[ 5, 955 A.2d 737. The purpose of the

law in part was to encourage private hospitals to accept involuntarily committed

patients in an effort to provide better care and reduce the burden on public

hospitals for these patients. A rational basis supports the legislation that

provides immunity to these private hospitals in certain cases involving

involuntary commitments.

Plaintiffs' second constitutional argument is that, if applied to this case,

34-B M.R.S. § 3861 would violate the open courts provision of the Maine

Constitution. Article I Section 19 of the Maine Constitution provides: "Every

person, for an injury inflicted on the person or the person's reputation, property

or immunities, shall have remedy by due course of law; and right and justice

shall be administered freely and without sale, completely and without denial,

promptly and without delay." The Law Court, however, has never held that

abolishing a cause of action violates this provision of the Maine Constitution. To

find otherwise would invalidate legislative action extending immunity to private

actors in many settings. See,~ 24 M.R.S. § 2904 (2013) (extending immunity to

healthcare professionals who volunteer for nonprofit organizations); 7 M.R.S. §

4018 (2013) (extending immunity to veterinarians who report suspected animal

cruelty); 14 M.R.S. § 159-A (2013) (limiting liability of landowners who allow the

15 public to use their land for recreation). The open courts provision in the Maine

Constitution has never been interpreted as preventing the legislature from

limiting a cause of action. In this case, therefore, 34-B M.R.S. § 3861 is a valid

legislative enactment.

The entry is

The Defendants' Motion for Summary Judgment is DENIED.

(

Date: February 28,2014 ancy Mills Justice, Superior

16 CUMBERLAND COUNTY'S CLERK'S OFFICE CIVIL-REAL ESTATE DIVISION 205 NEWBURY ST PO BOX 412 PORTLAND ME 04112

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