MICHAEL BROWNE v. KIMBALL MEDICAL CENTER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4907-03T54907-03T5

MICHAEL BROWNE,

Plaintiff-Appellant,

v.

KIMBALL MEDICAL CENTER,

KIMBALL MANCHESTER AMBULATORY

CARE CENTER, SAINT BARNABAS

BEHAVIORAL HEALTH CENTER,

MANCHESTER TOWNSHIP POLICE

DEPARTMENT. Individually

and in their professional

capacities, the following

persons: MARC E. FLORES,

PAUL S. BACHOVCHIN, JUDI

COSTANZO, ERIC M. BERGER,

RAYMOND M. BAUM, CHERYL A.

KAST, also known as CHERYL

A. KASPER, and JEANNE TOMAINO,

Defendants-Respondents.

_________________________________

 

Submitted September 12, 2005 - Decided

Before Judges Alley, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-3054-02.

Michael Browne, appellant pro se.

Orlovsky, Grasso, Bolger, Mensching, Halpin & Daley, attorneys for respondent Marc Flores (Charles C. Daley, Jr., of counsel; Colleen L. Brandt, on the brief).

Ronan, Tuzzio & Giannone, attorneys for respondents Kimball Medical Center, Kimball Manchester Ambulatory Care Center, Saint Barnabas Behavioral Health Center, Manchester Township Police Department, Judi Costanzo, Paul S. Bachovchin, Eric M. Berger, Cheryl A. Kast, also known as Cheryl A. Kasper, Raymond M. Baum, Jeanne Tomaino (Mary Ann Nobile Wilderotter, of counsel; Sara Olszak and Ms. Wilderotter, on the brief).

Secare, Delanoy, Martino & Ryan, attorneys for respondents Manchester Township Police Department, Judi Costanzo and Paul S. Bachovchin (Guy P. Ryan, of counsel and on the brief).

PER CURIAM

Michael Browne (plaintiff) was brought by his wife to the

Community Medical Center Emergency Room (CMC) on September 20, 2000. He was evaluated, and a report in the Crisis Team Evaluation the same date stated:

First PESS evaluation of this 63 year old married caucasian male referred by his wife due to recent aggressive behavior. [Patient] reports an incident yesterday morning at the restaurant where he has breakfast. He reports an intoxicated man shouted at him as he walked by "Hey you, New York, Pepe said to say 'hello.'" [Patient] reports he tried to ignore this man because he knew he was intoxicated, but the man wouldn't leave him alone. [Patient] finally told the man to "shut up" and the man took a swing at him. [Patient] reports he stood up so he could defend himself and that he knocked off the man's hat. [Patient's] wife is very upset about this. Both [patient] and wife report [patient] has become increasingly irritable and argumentative. Both also report [patient's] sister is angry with him because of remarks he made in opposition to a rule that car's parked in trustees' parking spots in their retirement community will be towed- sister is reportedly "very embarrassed" as some of her friends" are trustees and feels her reputation has been "tarnished" by his behavior. Wife reports "fierce anger" as "psychotic episodes" . . . . [Patient] reports numerous medical concerns and his cardiac condition is currently being evaluated.

[Patient] resides with his wife and mother-in-law. He reports six children from a previous marriage - one daughter is deceased. [Patient] is originally from Queens, NY. He moved to Whiting in 9-97. [Patient] is retired. He reports he ran printing and locksmith businesses. [Patient] completed two years of college.

[Patient] reports hypertension, a thyroid problem, and an unknown cardiac condition. [Patient] reports he last saw his [primary care physician] about three weeks ago as a result of multiple abnormal EKGs tests.

. . . .

8. [Patient] not presenting as an imminent danger to self or others due to mental illness. [Patient] currently sees his [primary care physician] for meds. [Patient] referred back . . . for further medical evaluation due to complaints of chest pains and tightness in his chest and shoulder area.

After plaintiff was discharged from CMC, on September 22, 2000, his brother brought him to the Kimball Manchester Ambulatory Care Center (KMACC). The Emergency Services report states that plaintiff's brother had complained that plaintiff had passed out in a store and that, since waking up, he had been confused. The brother had been called to pick plaintiff up from the convenience store and plaintiff was unable to remember how he got to the store. The report states the "diagnostic impression" of plaintiff was that he had suffered a syncopal episode with a history of schizophrenia. It further states, in an addendum letter attached to plaintiff's file that had been written by Jeanne Tomaino, a physician at KMACC, that at 10:35 a.m., he had

requested to see his brother who had accompanied him to facility. Brother could not be located. [Patient] became agitated, . . . walked out despite coaxing by staff to stay. [Patient] walked thru parking lot into woods followed by staff RNs . . . . [Patient] refused to return. Manchester police were called.

[Tomaino] advised staff to bring [patient] back into facility. [Patient] was to be transferred to Community Medical Center . . . for further medical and psych evaluation for syncopal episode and schizophrenia. [Patient] had no blood drawn earlier[.]

[Tomaino] was later informed . . . that police took [patient] in a police car to Kimball Medical Center for PESS evaluation.

Tomaino also noted her concern about the appropriateness of using a police car to transport plaintiff to the Kimball Medical Center for further evaluation.

The police dispatch report regarding the call made by KMACC staff states that there was a "[p]atient . . . reported to have mental problems [in] the ER area, reported on foot in the parking lot [and that KMACC is] afraid that he may either harm himself or get hit by a vehicle." Police officers Paul S. Bachovchin and Judi Costanzo responded to the call to the Manchester Police Department. In certifications dated January 31, 2004, and February 3, 2004, respectively, the two officers explained that upon their arrival at the scene, they found the KMACC staff looking in the woods for plaintiff, at which point, the officers and a staff member located him. Officer Costanzo stated that "[i]t appeared that he had fallen, his clothes were wet and the ground was muddy. He was confused and disoriented."

The KMACC staff members asked plaintiff to return to the hospital and, upon his refusal, the officers told him that he would have to be transported by ambulance or police car. Eventually, plaintiff entered the police car. Officer Costanzo further noted that "plaintiff was clearly not able to care for himself. He appeared disoriented and had obviously fallen in the woods. He had no means of transportation and certainly could not be allowed to walk away from the scene." Officer Bachovchin certified that he was "instructed by doctors and staff that the patient was to be taken to a psychiatric facility for a full screening" and that he transported plaintiff to Kimball Medical Center (KMC), which is affiliated with KMACC. Dr. Flores conducted a routine medical exam upon plaintiff's arrival.

Plaintiff was kept under observation at KMC until September 25, 2000, when Erika Picca, M.S., conducted a [PESS] evaluation. According to the report, plaintiff was agitated, had not slept much, and had been pacing all night. It also states that plaintiff's wife reported that she feared that he would hurt himself or others. Dr. Picca recommended that plaintiff be committed at Saint Barnabas Behavioral Health Center (SBBHC), another named defendant in this suit. Dr. Picca spoke with the patient's nephew, who thought that plaintiff should get help and expressed fear that plaintiff would inflict harm on himself, his wife, or others if released from the hospital.

Plaintiff was involuntarily committed to SBBHC on September 25, 2000, and an Admission Psychiatric Assessment was conducted. The admitting physician, Raymond Baum, another defendant, diagnosed plaintiff with bipolar disorder as well as an array of other ailments and behavioral problems.

On September 26, 2000, an Involuntary Commitment hearing took place before the Honorable Marlene Ford, J.S.C. Dr. Raymond Baum, Dr. Eric Berger, and Cheryl Kast each completed a Clinical/Screening Certificate stating that they had each examined plaintiff and determined that plaintiff posed a danger to himself and to others and involuntary commitment was appropriate in plaintiff's case. The judge issued a Temporary Order of Involuntary Commitment on this date, pursuant to N.J.S.A. 30:4-27.10.

On September 28, 2000, plaintiff experienced respiratory difficulty and was transferred from SBBHC to CMC, where he stayed overnight. He was discharged the next day and transferred back to SBBHC upon his discharge from CMC. Plaintiff was kept at SBBHC until October 6, 2000, when he was discharged after his condition caused by bipolar disorder had improved greatly due to the administration of a new medication.

On September 10, 2002, plaintiff, acting pro se, filed a complaint against KMC, KMACC, SBBHC, Judi Costanzo, Manchester Police Department (MPD), Paul S. Bachovchin, Eric M. Berger, Cheryl A. Kast, Raymond M. Baum, Marc E. Flores, and Jeanne Tomaino (defendants) alleging the following claims: (1) violation of 42 U.S.C.A. 1983 (count one); (2) false arrest (count two); (3) negligent infliction of emotional distress (count three); (4) negligent supervision and training (count four); (5) malicious prosecution (count five), (6) and discrimination that violated plaintiff's rights under "Hospital Patients' Rights laws" and "the Americans with Disabilities Act" (count six).

On October 1, 2002, plaintiff filed an amended complaint that added no new claims. Defendants filed an answer and various other procedural steps were taken. On September 10, 2003, Flores filed a motion to dismiss plaintiff's complaint for failure to file an affidavit of merit. The judge dismissed plaintiff's complaint with prejudice "respecting all professional negligence claims," since plaintiff clarified at the hearing that he never intended to charge any of the defendants with medical malpractice.

Ultimately, all defendants filed motions for summary judgment, and on March 5, 2004, Judge Thomas E. O'Brien granted summary judgment orders in favor of all defendants, thereby dismissing all of plaintiff's claims. Judge O'Brien stated his reasons for the orders, which were in part that:

[F]or all reasons I've already expressed on the record, but in a general sense the immunity statute in the Ziemba case gives a right to police officers that are assisting involuntary commitments, health care providers that are assisting in involuntary commitments, immunity if they act reasonable.

And, under the circumstances I think the facts are all so one sided to support the reasonableness of their actions. And, I think I have to grant all these summary judgment motions as to all these defendants and deny, obviously the cross-motions. Or the cross motions of Mr. Browne's are like oppositions and cross motions. But, certainly I couldn't make any findings on the summary judgment model to support a claim against all these health care providers, police officers, police departments, hospital entities.

And, obviously since I'[ve] granted them all summary judgment, obviously I wouldn't grant summary judgment to the plaintiff. That's only common sense of course.

But, the same thing with the false imprisonment, false arrest. You have to look to the reasonableness of the police officers here. And, when you look at all the facts, they're called to the scene. The health care providers that came out o[f] concern Mr. Browne may be a danger to himself and others, his wife. And, I believe she's been working for 32 years and I believe she loves him and she didn't - she didn't - she wouldn't st[o]p either.

But, in B[aum]'s certification, for example, he finds Mr. Browne to be a danger to others and not to himself. And, he bas[e]s that -- that conclusion on - a finding with the gentleman's wife. Was somewhat concerned about her well being.

As I said, it's still all part of the process. The constitutionality of it has been upheld as far as I know to date. I don't know of any pending cases attacking it any further. I find that the procedures were followed. Due process was afforded consistent with the procedure. And, that all the parties involved acted reasonably under the circumstances.

I understand Mr. Browne's feelings but I would hope that after this maybe he's going to think that all these people are trying to help him rather than hurt him. That might make you feel better too if you thought that way.

Judge O'Brien also issued detailed written opinions disposing of plaintiff's claims as to each group of defendants. For purposes of disposing of the summary judgment motion, Judge O'Brien dealt with the motions of Flores, Kast, Baum and Berger in the same opinion as that for the Kimball defendants.

Plaintiff filed what appears to be a motion for reconsideration of the summary judgment order, and on April 16, 2004, Judge O'Brien denied the motion for the reasons set forth on the record on March 5, 2004, since plaintiff had not set forth any new facts that would lead the trial court to question its prior decision.

On this appeal, plaintiff asserts:

PLAINTIFF'S ARREST IS NOT SUPPORTED BY PROBABLE CAUSE PRINCIPLES OF STATUTORY CONSTRUCTION SHOULD GOVERN INTERPRETATION OF N.J.S.A. 30:4-27.6.

COMMITMENT PROCEDURE IS CONSTITUTIONALLY INADEQUATE VIOLATIVE OF DUE PROCESS CLAUSE - FOURTEENTH AMENDMENT.

SUMMARY JUDGMENT MOTION OF KIMBALL MEDICAL CENTER, AND ITS AFFILIATED INSTITUTIONS AND ITS INDIVIDUAL MEDICAL DEFENDANTS WAS [IN]ADEQUATELY ADDRESSED AND A HEARING SHOULD HAVE BEEN ORDERED TO RESOLVE TRIABLE ISSUES OF CREDIBILITY AND MATERIAL FACT.

TWO INTENTIONAL TORT CLAIMS SHOULD BE REINSTATED AGAINST THREE DEFENDANTS NAMED BELOW.

We have carefully considered, in light of the record and the applicable law, each of the contentions on appeal, including, but not limited to, the points we have mentioned. We are satisfied that the decisional rationale Judge O'Brien set forth in support of the orders appealed from is essentially correct, thus we affirm substantially for those reasons.

We add only the following with respect to plaintiff's contention that his arrest was improper since the police officers did not have probable cause and because the trial judge improperly applied N.J.S.A. 30:4-27.6.

The law governing involuntary commitment procedures was set forth in our decision in Ziemba v. Riverview Medical Ctr., 275 N.J. Super. 293, 298-300 (App. Div. 1994):

New Jersey law provides for involuntary civil commitment of individuals who pose a danger to themselves or to others. The policy behind involuntary civil commitment is set forth in N.J.S.A. 30:4-27.1b, which states:

Because involuntary commitment entails certain deprivations of liberty, it is necessary that State law balance the basic value of liberty with the need for safety and treatment, a balance that is difficult to effect because of the limited ability to predict behavior; and, therefore, it is necessary that State law provide clear standards and procedural safeguards that ensure that only those persons who are dangerous to themselves, to others or to property, are involuntarily committed.

Under the civil commitment statute, a person may be involuntarily committed either by referral of a State-designated screening center under N.J.S.A. 30:4-27.10a, or by submission of two clinical certificates to the court, at least one of which is prepared by a psychiatrist under N.J.S.A. 30:4-27.10b. In either case, the standard for determining whether a patient should be involuntarily committed is the same:

A person shall not be involuntarily committed to a short-term care or psychiatric facility, or special psychiatric hospital unless the person is mentally ill and that mental illness causes the person to be dangerous to self or dangerous to others or property, and appropriate facilities or services are not otherwise available.

[N.J.S.A. 30:4-27.9b[;] See also Fair Oaks Hosp. v. Pocrass, 266 N.J. Super. 140, 145-149 (Law Div. 1993) (outlining the procedures and policies behind the commitment process).]

Our courts have emphasized that involuntary commitment should only occur if the patient "is likely to pose a danger to himself or to society" and if there is a "substantial risk of dangerous conduct within the reasonably foreseeable future." State v. Krol, 68 N.J. 236, 257, 260 (1975); see also Matter of Commitment of B.S., 213 N.J. Super. 243, 248 (App. Div. 1986). "The civil commitment process must be narrowly circumscribed because of the extraordinary degree of state control it exerts over a citizen's autonomy." In re S.L., 94 N.J. 128, 139 (1983). Moreover, "involuntary commitment . . . is a profound and dramatic curtailment of a person's liberty and as such requires meticulous adherence to statutory and constitutional criteria." Fair Oaks Hosp. v. Pocrass, supra, 266 N.J. Super. at 149; see also Matter of Commitment of Raymond S., 263 N.J. Super. 428, 432 (App. Div. 1993).

Balanced against this cautious approach to involuntary civil commitment is the notion that such commitment is best decided by appropriate mental health care professionals, and, as such, the commitment decision is discretionary. To protect this discretionary procedure and to allow mental health care workers to perform their jobs freely, the Legislature has provided immunity from civil and criminal liability for those involved in the commitment of an individual for mental health reasons. N.J.S.A. 30:4-27.7 governs this immunity and, in pertinent part, provides:

a. A law enforcement officer, screening service or short-term care facility designated staff person or their respective employers, acting in good faith pursuant to this act who takes reasonable steps to assess, take custody of, detain or transport an individual for the purposes of mental health assessment or treatment is immune from civil and criminal liability.

Thus, those involved in the involuntary commitment process enjoy an absolute immunity from civil or criminal liability if they acted in good faith and took reasonable steps toward effectuating the commitment.

We adhere to the determination in Ziemba, supra, 275 N.J. Super. at 300, that N.J.S.A. 30:4-27.7 grants immunity to those involved in the commitment of a individual so long as the police officer, screening service and short-term care facility staff person involved "acted in good faith and took reasonable steps" in the assessment, detainment and transportation of the individual in the course of obtaining mental health treatment for the individual. The immunity is absolute and also extends to the employers of these individuals.

We conclude that the virtually one-sided evidence in this case supports a finding in favor of defendants as a matter of law. The officers clearly acted in good faith and took reasonable steps to effectuate the commitment in this situation, and thus, are entitled to immunity. KMACC had called the police to the scene for assistance with plaintiff. Police officers Paul S. Bachovchin and Judi Costanzo were the officers that responded to the call placed by KMACC to the Manchester Police department. In certifications dated January 31, 2004, and February 3, 2004, respectively, the two officers explained that upon their arrival at the scene, they found the KMACC staff looking in the woods for plaintiff and the officers and a staff member located him. Officer Costanzo stated that "[i]t appears that he had fallen, his clothes were wet and the ground was muddy. He was confused and disoriented." The staff members requested that plaintiff return to the hospital and that upon his refusal, the officers told him that he would have to take an ambulance or police car. Eventually, plaintiff entered the police car. Officer Costanzo further noted that "plaintiff was clearly not able to care for himself. He appeared disoriented and had obviously fallen in the woods. He had no means of transportation and certainly could not be allowed to walk away from the scene." Officer Bachovchin certified that he was "instructed by doctors and staff that the patient was to be taken to a psychiatric facility for a full screening" and that he transported plaintiff to KMC.

Plaintiff does not set forth any material and admissible evidence to dispute that defendants acted in good faith and took reasonable steps to procure the commitment, and thus summary judgment is appropriate.

We also note with respect to plaintiff's position that the police affidavits did not establish sufficient grounds to justify the police action under N.J.S.A. 30:4-27.6, which provides that

[a] State or local law enforcement officer shall take custody of a person and take the person immediately and directly to a screening service if:

a. On the basis of personal observation, the law enforcement officer has reasonable cause to believe that the person is in need of involuntary commitment;

b. A mental heath screener has certified on a form prescribed by the division that based on a screening outreach visit the person is in need of involuntary commitment and has requested the person be taken to the screening service for a complete assessment; or

. . . .

The involvement of the law enforcement authority shall continue at the screening center as long as necessary to protect the safety of the person in custody and the safety of the community from which the person was taken.

This contention is without merit. Plaintiff does not set forth any evidence to dispute that the officers had reasonable grounds to believe that he was in need of psychiatric assessment, as based on the dispatch report and their observation that plaintiff appeared "confused and disoriented[,]" "he had obviously fallen in the woods," and "he had no means of transportation and certainly could not be allowed to walk away from the scene." The evidence shows beyond legitimate dispute that there is no issue of fact that all defendants acted with reasonable cause, and Judge O'Brien's grant of summary judgment in favor of the police defendants was correct.

 
Affirmed.

(continued)

(continued)

17

A-4907-03T5

October 12, 2005