In the Matter of: Eric Wimberly
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1589 IN THE MATTER OF E W Judgment Rendered May 7 2010 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court No 2009 13803 Division C Honorable Richard A Swartz Judge Presiding Pamela Toney Crawford Mandeville LA Counsel for PlaintiffAppellant Nancy J Marshall Karen P Holland Counsel for Defendants Appellees Donnie Frederic CEO and New Orleans LA Glenda Dobson of the Louisiana W E Medical Center and Heart Hospital BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES J Appellant E filed a Petition for Writ of Habeas Corpus seeking his W release from the Louisiana Medical Center and Heart Hospital LMCHH This is an appeal of the trial court judgment that both denied E s s W release and ordered his transfer to a psychiatric facility For the reasons that follow we reverse the judgment FACTS In the early morning hours of June 23 2009 plaintiffappellant E W was taken by ambulance to the emergency room of LMCHH as a result of acute respiratory failure caused by an overdose of xanax and alcohol At 30 m 1 a on June 23 2009 E was examined by the LMCHH emergency W room physician Dr Nikolaos Psomas who concluded that E was W suicidal Dr Psomas therefore executed a physician emergency certificate s PEC pursuant to LSAR 28 S 53 The PEC had the effect of involuntarily admitting E to the hospital for psychiatric evaluation and W treatment According to the testimony of an LMCHH employee on June 23 2009 at 6 a LMCHH contacted the parish coroner office via 30 m s facsimile to notify the coroner that the PEC had been issued Then on June 25 2009 a call was placed by LMCHH to the coroner office s The s coroner office instructed LMCHH to issue a second PEC if the coroner The Louisiana Mental Health Law LSAR 28 et seq more fully contained hereinbelow S1 provides the procedure for the involuntary admission commitment and treatment of a person who suffers from mental illness or substance abuse Pursuant to LSAR 28 mentally S 53 Aa ill person or a person suffering from substance abuse may be detained and admitted at a treatment facility for observation diagnosis and treatment for up to fifteen days under an emergency certificate issued after examination by any physician psychiatric mental health nurse practitioner or psychologist and their determination that the person is in need of immediate care and treatment because the person is a danger to himself or others or is gravely disabled Z Under LSAR 28 upon admission of any person by emergency certificate to a S 53 1 G treatment facility the director of the treatment facility shall immediately notify the coroner 2 was unable to examine E within 72 hours3 On June 26 2009 at 1 W 35 m a the coroner had not yet examined E and a second PEC was issued W LMCHH records note that additional calls were made to the coroner soffice on June 26 2009 and June 27 2009 A third PEC was executed at 5 p 00 m on June 28 2009 Deputy Coroner Dr David Murdock of the St Tammany Parish s Coroner Office examined E on June 28 2009 at 11 p and issued W 30 m a coroner emergency certificate CEC The CEC issued by Dr Murdock s indicated that E date and time of admission was June 26 2009 at 1 s W 35 m a While this date and time corresponds with the date and time of the second PEC E was actually admitted to LMCHH at 1 a on June W 00 m 23 2009 From the time E was admitted LMCHH had been attempting to W locate an available bed in a psychiatric facility in order to transfer E for W further treatment On June 29 2009 a bed was confirmed as available at Greenbrier Psychiatric Hospital Greenbrier According to the testimony at the hearing in this matter due to E objection to the validity of the CEC s W Greenbrier refused to accept E without a court order W On July 1 2009 E filed a Petition for Writ of Habeas Corpus W seeking his immediate release from LMCHH A hearing was held on July 9 2009 At the conclusion of the hearing the trial court denied E request s W for release and also ordered his transfer to Greenbrier In its reasons for judgment the trial court stated that although the coroner failed to examine W E within 72 hours of the issuance of the first PEC the eventual issuance Under LSAR 28 the coroner office must independently examine a patient within S 53 2 G s 72 hours of his admission 4 E was taken to LMCHH due to an alleged suicide attempt and all three PEC issued stated W s that E was in need of treatment in a treatment facility because he was a danger to himself W However the CEC executed by Dr Murdock stated that E needed treatment in a treatment W facility because he was a danger to others 3 of the CEC although untimely cured any procedural deficiencies W E was transferred to Greenbrier and filed an appeal of the trial court s judgment making the following assignment of error ruling that the issuance of the June 28 2009 CEC cured any deficiencies in procedure and iy expiration in time delays The trial court erred in MOOTNESS LMCHH argues that this appeal is moot because E was released W from Greenbrier on or around July 11 2009 two days after the hearing LMCHH asserts that because E only request was to be released this s W court can give no practical relief and the appeal is moot Although E admits in brief that he was released from Greenbrier W he argues that this court should nevertheless render an opinion in this matter pursuant to exceptions to the mootness doctrine including that 1 the challenged action was too short in duration to be fully litigated before its cessation or expiration 2 there is a reasonable expectation that he will be subject to the same action again and 3 there is a strong public policy in favor of protecting individuals from illegal involuntary confinement contrary to the Mental Health Law Therefore E argues that this court should W take jurisdiction of the action despite its mootness and decide the question of whether the trial court correctly interpreted LSAR 28 S 53 It is well settled that courts will not decide abstract hypothetical or moot controversies or render advisory opinions with respect to controversies Cases submitted for adjudication must be justiciable ripe for decision and not brought prematurely A justiciable controversy is one presenting an existing actual and substantial dispute involving the legal LSAR 28 S 53 2 G 4 relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character A justiciable controversy is thus distinguished from one that is hypothetical or abstract academic or moot City of Hammond v Parish of Tangipahoa 20070574 pp 67 La App 1 Cir 3 985 So 08 26 2d 171 178 citing St Charles Gaming Company v Riverboat Gaming Commission 942679 p 6 La 1 648 So 1310 1315 and St 95 17 2d Charles Parish School Board v GAF Corporation 512 So 1165 2d 1170 71 La 1987 An issue is moot when a judgment or decree on that issue has been deprived of practical significance or made abstract or purely academic Thus a case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect If the case is moot there is no subject matter on which the judgment of the court can operate That is jurisdiction once established may abate if the case becomes moot The controversy must normally exist at every stage of the proceeding including appellate stages City of Hammond v Parish of Tangipahoa 2007 0574 at p 7 985 So at 178 citing Cat Meow Inc v City of 2d s New Orleans Through Department of Finance 98 0601 pp 8 9 La 98 20 10 720 So 1186 1193 2d A case may become moot for several reasons Some examples are that 1 there has been a change in the law 2 the defendant paid the monies owed 3 the wrongful behavior has passed and is not likely to recur or 4 a party has died Id Even though the requirements of justiciability are satisfied when the suit is initially filed when the fulfillment of these requirements lapses at some point during the course of litigation before the moment of final E disposition mootness occurs In such a case there may no longer be an actual controversy for the court to address and any judicial pronouncement on the matter would be an impermissible advisory opinion See City of Hammond v Parish of Tangipahoa 2007 0574 at pp 7 8 985 So at 2d 178 citing Cat Meow Inc s v City of New Orleans Through Department of Finance 98 0601 at p 9 720 So at 1193 94 A court 2d must refuse to entertain an action for a declaration of rights if the issue presented is academic theoretical or based on a contingency which may or may not arise American Waste Pollution Control Company v St Martin Parish Police Jury 627 So 158 162 La 1993 Nor is a court 2d required to decide moot questions or abstract propositions or to declare for the government of future cases principles or rules of law which cannot affect the result as to the thing in issue in the case before it Council of City of New Orleans v Sewerage and Water Board of New Orleans 2006 1989 p 5 La 4 953 So 798 802 quoting St Charles Parish 07 11 2d School Board v GAF Corporation 512 So at 1173 2d However exceptions to the mootness doctrine have been recognized When a defendant has voluntarily ceased complainedof conduct a court should consider 1 whether there is any reasonable expectation that the alleged violation will recur andor 2 whether there are unresolved collateral consequences such as an outstanding claim for compensatory or other monetary relief See Cat Meow Inc v City of New Orleans s Through Department of Finance 98 0601 at pp 913 720 So at 1194 2d U rl While E has not raised any compensatory claims or otherwise W sought monetary relief in these proceedings he makes a compelling argument and we are persuaded that the facts of this case warrant exceptions to the general rule ofmootness Dr Murdock a board certified psychiatrist employed by the St Tammany Parish Coroner Office and the Deputy Coroner charged with s examining E testified at the hearing His testimony revealed that upon W arrival at LMCHH he reviewed the entire medical chart Dr Murdock knew that 1 he was statutorily required to examine a patient within 72 hours of the issuance of a PEC 2 E was admitted and was being held W involuntarily 3 three PEC had been issued in regards to E and 4 s W the first PEC had been issued more than 72 hours prior to his arrival at LMCHH He nevertheless proceeded to conduct the examination and issue a CEC that consequently indicated an erroneous time and date of admission The record indicates that at least as of June 25 2009 the coroner s office had been contacted regarding E admission Several subsequent s W followup calls were made The coroner still failed to timely conduct E s W examination according to law In fact the record indicates that the coroner s office instructed LMCHH employees to continue issuing PEC until the s coroner arrived in blatant disregard of the statute We find that the actions complained of herein are indeed capable of repetition with the ability to evade review The challenged action was too short in duration to be fully litigated before its cessation or expiration and the blatant disregard of the statute indicates it is quite likely the complained of conduct will recur See Schwab v Lattimore 2006 1372 Ohio App 2006 166 Ohio App 3d 12 6 The petition for writ of habeas corpus in the trial court sought only E release He did not s W raise any tort claim for damages herein 7 848 N 912 2d E See also Cat Meow Inc v City of New Orleans s Through Department of Finance 98 0601 at pp 913 720 So 119496 2d citing Antieau Rich Modern Constitutional Law Section 15 noting 19 that if there is a good likelihood that a defendant who has ceased his illegal activity may resume it in the future then the courts will not treat the issue as moot unless it can be shown by the defendant that there is no reasonable expectation that the wrong will be repeated citing United States Supreme Court cases beginning in the late 1890 s Furthermore a substantial public interest can also provide an exception to mootness where the question presented is ofa public nature the complained of conduct is likely to recur and an authoritative resolution is See Cinkus v Village of Stickney desirable to guide public officers Municipal Officers Electoral Bd 228 I11 200 319 111 Dec 887 886 2d 2d E N 1011 2008 as modified Apr 23 2008 Here public policy mandates that individuals be free from involuntary hospitalization contrary to law While coroners have the power to involuntarily commit individuals for the protection of others or the individual being committed the statutory safeguards cannot be ignored We conclude that due to the time factors involved the likelihood of recurrence and the public interest in having the commitment statutes properly enforced the matter before us is not moot STANDARD OF REVIEW Questions of law such as the proper interpretation of a statute are reviewed by this court under the de novo standard of review La Mun n Ass v State 2004 0227 p 35 La 1 893 So 809 836 When a 05 19 2d trial court commits an error of law the reviewing court is not subject to the manifest error standard and can make an independent determination of the RI facts from the record on appeal Arabic Bros Trucking Co v Gautreaux 2003 0120 p 7 La App 1 Cir 8 880 So 932 938 writ denied 04 4 2d 2004 2481 La 12 888 So 846 04 10 2d LAW DISCUSSION Louisiana Revised Statutes 28 provides in pertinent part 53 A 1 A mentally ill person or a person suffering from substance abuse may be admitted and detained at a treatment facility for observation diagnosis and treatment for a period not to exceed fifteen days under an emergency certificate 2 A person suffering from substance abuse may be detained at a treatment facility for one additional period not to exceed fifteen days provided that a second emergency certificate is executed A second certificate may be executed only if and when a physician at the treatment facility and any other physician have examined the detained person within seventy two hours prior to the termination of the initial fifteen day period and certified in writing on the second certificate that the person remains dangerous to himself or others or gravely disabled and that his condition is likely to improve during the extended period The director shall inform the patient ofthe execution of the second certificate the length of the extended period and the specific reasons therefor and shall also give notice of the same to the patient nearest s relative or other designated responsible party initially notified pursuant to Subsection F B 1 Any physician psychiatric mental health nurse practitioner or psychologist may execute an emergency certificate only after an actual examination of a person alleged to be mentally ill or suffering from substance abuse who is determined to be in need of immediate care and treatment in a treatment facility because the examining physician psychiatric mental health nurse practitioner or psychologist determines the person to be dangerous to self or others or to be gravely disabled The actual examination of the person by a psychiatrist may be conducted by telemedicine video utilizing conferencing technology provided that a licensed health care professional who can adequately and accurately assist with obtaining any necessary information including but not limited to the information listed W in R 28 shall be in the examination S 53 4 B room with the patient at the time of the video conference A patient examined in such a manner shall be medically cleared prior to admission to a mental health treatment facility Failure to conduct an examination prior to the execution of the certificate will be evidence of gross negligence 3 The certificate shall be dated and executed under the penalty of perjury but need not be notarized The certificate shall be valid for seventytwo hours and shall be delivered to the director of the treatment facility where the person is to be further evaluated and treated eM3EMe G 1 Upon admission of any person by emergency certificate to a treatment facility the director of the treatment facility shall immediately notify the coroner of the parish in which the treatment facility is located of the admission giving the following information if known a The person name s b Address c Date of birth d Name of certifying physician psychiatric health nurse or mental practitioner psychologist e Date and time of admission f The name and address of the treatment facility 2 Within seventy two hours of admission the person shall be independently examined by the coroner or his deputy who shall execute an emergency certificate pursuant to Subsection B of this Section which shall be a necessary to the continued s person precondition confinement If the actual examination by the psychiatrist in Paragraph 1 of Subsection B of this Section is conducted by telemedicine the seventytwohour independent examination by the coroner shall be conducted in person 3 However in the event that the coroner has made the initial examination and executed the first emergency commitment certificate then a second examination shall be made within the seventytwo hour period set forth in this Part by any physician 11111 at the treatment facility where the person is confined The statute contains checks and balances in order to insure that only those necessarily requiring treatment that they are unwilling to undergo are involuntarily confined A person once at a hospital or other facility either by order of the coroner voluntary emergency transport or otherwise may be admitted and detained without their consent for a period of up to fifteen days provided that the following things occur 1 The person must be evaluated by a physician psychiatric mental health nurse practitioner or psychologist who determines that the person is in need of immediate care because the person is a danger to himself or others or is gravely disabled 2 A PEC must be issued 3 A PEC once issued expires after 72 hours unless during that time the coroner conducts an independent examination agrees with the findings ofthe original PEC and issues a CEC The issuance of the CEC validates the PEC and allows a person to be detained for up to fifteen days from the date of admittance7 Under LSA S 53 R 28 a person suffering from substance abuse may be detained 2 A for one additional fifteenday period if necessary provided that a second PEC is issued within 72 hours of the expiration of the original fifteen day term In order for a person to be detained longer than provided for via emergency certificate admission formal judicial commitment proceedings are required We note that under the statute additional provisions allow for the PEC and CEC to be transposed In the event that the coroner makes the initial evaluation then the second evaluation must occur within the 72 hours and must be by a physician psychiatric nurse practitioner or psychiatrist Essentially the statute requires that two distinct examinations be made within 72 hours This ensures only a minimal intrusion upon a person liberty interest s 11 While the trial court did not deny that a breach of the statute had occurred insofar as the CEC was not issued within 72 hours of the PEC as required by LSAR 28 the trial court nevertheless denied S 53 2 G E W release and ordered his transfer to Greenbrier citing In re M 93 s W 1809 La App 4 Cir 6 641 So 582 as authority 94 30 2d We find that the language of Subsection G shall and necessary 2 precondition is mandatory and not discretionary An independent evaluation of E by the parish coroner office was required for continued W s confinement after 1 a on June 26 2009 The coroner examination 00 m s did not occur within that 72 hours In fact the second PEC was not even issued within that time frame as the second PEC was issued at 1 a on 35 m June 26 2009 The LMCHH doctor testified that at the time of the expiration of the first PEC E had responded very well to the treatment W he received at LMCHH and had been cleared medically by the hospital a The fourth circuit case of In re M concerned the validity of a judicial commitment W proceeding In that case M was transported to the hospital for examination by order of the W parish coroner A PEC issued that was deficient as to its form and the subsequent CEC was not timely Once the form deficiency was noted in the first PEC the process was repeated and a second PEC was issued followed by a timely CEC M challenged the deficiency of the W original PEC but made no allegations as to deficiencies in the subsequent certificates Following the issuance of the certificates the Department filed judicial commitment proceedings against W M The Fourth Circuit held that The deficiency in the appellant original emergency s certificate was recognized within twenty hours of expiration four of the delay for execution of the CEC and the reexamination of appellant and reexecution of the emergency certificate were immediately completed to insure validity of the certificate Appellant was properly examined prior to the May 7 1993 PEC a timely CEC was executed and the certificate constituted authority to detain the patient for diagnosis and treatment from that point forward A person executing an emergency certificate must not disregard statutory requirements but where a deficiency in the certificate is promptly recognized and a valid certificate executed the correct certificate is not rendered invalid by the prior deficiency or by expiration of the time delays for detention In re M 641 So at 586 W 2d The case at hand does not concern an innocent oversight in the form of the PEC but is reflective of a blatant disregard for statutory requirements The coroner office in this case s appears to have made little or no attempt to adhere to the 72hour time limit 12 and the pulmonologist There was therefore no authority to detain E W after 1 a on June 26 2009 00 m CONCLUSION Due to the failure of the coroner office to issue a CEC within the s time constraints mandated by statute E was unlawfully detained as of W 00 m 1 a on June 26 2009 We therefore reverse the trial court judgment in all respects All costs of this appeal are to be borne by appellee Louisiana Medical Center and Heart Hospital REVERSED 13
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