VINCENT IANNI v. BERGEN REGIONAL MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5911-09T3

VINCENT IANNI,

Plaintiff-Appellant,

v.

BERGEN REGIONAL MEDICAL CENTER,

CARE PLUS NJ, INC., BOROUGH OF

LEONIA, LEONIA POLICE DEPARTMENT,

Defendants-Respondents.

____________________________________________

May 11, 2011

Argued March 22, 2011 - Decided

Before Judges Parrillo, Yannotti and Roe.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-589-09.

T.J. Legg argued the cause for appellant (Coviello & Legg, LLP, attorneys; Mr. Legg, on the brief).

Robert V. Haines argued the cause for respondent Bergen Regional Medical Center (Stevens & Schwab, attorneys; Mr. Haines, of counsel and on the brief).

Danielle M. DeGeorgio argued the cause for respondent Care Plus NJ, Inc. (Faust Goetz Schenker & Blee, attorneys; Ms. DeGeorgio, of counsel and on the brief; David W. Gannon, on the brief).

David T. Pfund argued the cause for respondent Borough of Leonia and Leonia Police Department (Pfund McDonnell, P.C., attorneys; Mr. Pfund and Mary C. McDonnell, on the brief).

PER CURIAM

Plaintiff, Vincent Ianni, appeals the grant of summary judgment in favor of defendants, Bergen Regional Medical Center (Bergen Regional) and Care Plus, Inc. (Care Plus) and the dismissal with prejudice granted to defendants, Borough of Leonia (Borough) and Leonia Police Department (LPD). We affirm.

Plaintiff was involuntarily civilly committed on two separate occasions by referrals of officers of the LPD. Plaintiff first summoned the police to his property on October 4, 2008 regarding a dispute with his neighbor over the neighbor's renovations and their property line. The police responded and shortly thereafter, plaintiff attacked his neighbor and shoved her to the ground.

The police called a screening service and transported plaintiff to Bergen Regional. Plaintiff was screened for an emergency psychiatric evaluation by Care Plus. As a result, plaintiff was involuntarily committed on October 8, 2008 by temporary order for commitment pursuant to N.J.S.A. 30:4-27.2(b).

Plaintiff's daily medical records from Bergen Regional indicate he was non-compliant with his medications and refused to have his vital signs measured. Plaintiff also refused to accept any meals prepared by the hospital, except for some fresh fruit and milk. He alleged he was unsure of the ingredients in the prepared foods and would not eat fruits such as bananas because "some of them contain bacteria in the inside which has to be cleaned."

Plaintiff was released from commitment on October 13, 2008. The next day, the police were again summoned to plaintiff's property. According to the police officers, plaintiff began violently swinging a pickaxe at the ground and in the direction of his neighbor, despite several requests to stop. Plaintiff was arrested after he threw a ground stake in the direction of the police. The police again contacted Care Plus, who referred plaintiff for a second civil commitment. He was discharged from this commitment on October 20, 2008.

Plaintiff sued the police, the Borough, Care Plus and Bergen Regional, alleging each party exhibited bad faith and acted unreasonably in bringing about his civil commitment. He also alleged Bergen Regional deprived him of adequate food.

On June 22, 2010, the court granted summary judgment in favor of defendants, Bergen Medical and Care Plus, in accordance with N.J.S.A. 30:4-27.7(a). On the same date, plaintiff's complaint was dismissed with prejudice as to defendants, Borough and LPD, for failure to provide answers to interrogatories pursuant to Rule 4:23-5(a)(2). Alternatively, the court determined all defendants were entitled to immunity under N.J.S.A. 30:4-27.7(a).

On appeal, plaintiff presents the following arguments for our consideration: the trial court erred in finding all of the defendants were entitled to immunity based on bad faith in the second involuntary commitment of the plaintiff, and in dismissing the plaintiff's complaint against the LPD and the Borough with prejudice.

I.

The legal conclusions reached by a trial court on a motion for summary judgment are not entitled to any special deference, and hence an "issue of law [is] subject to de novo plenary appellate review." City of Atlantic City v. Trupos, 201 N.J. 447, 463 (2010) (citing Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Prudential Prop. and Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), cert. denied, 154 N.J. 608 (1998)).

In 1987, the Legislature enacted legislation to provide a mechanism for the short-term civil commitment of individuals deemed to be harmful to themselves, others or property. N.J.S.A. 30:4-27.1 to -31. The provisions of the act are applicable to any individual who is "involuntarily committed to a short-term care facility [or] psychiatric facility." N.J.S.A. 30:4-27.3.

The act requires each county, in consultation with its county health board, to designate a mental health agency as a "screening service." N.J.S.A. 30:4-27.4. A certified screening service is required to "serve as the facility in the public mental health care treatment system wherein a person believed to be in need of involuntary commitment to outpatient treatment, a short-term care facility, psychiatric facility or special psychiatric hospital undergoes an assessment to determine what mental health services are appropriate for the person[.]" N.J.S.A. 30:4-27.5(a).

If the mental health screener determines that treatment is necessary, the screener must complete a screening certificate, in consultation with a psychiatrist or physician, indicating its findings and reasons why commitment is necessary. N.J.S.A. 30:4-27.5(b). The screener only needs to determine if "there is reasonable cause to believe that a person is in need of involuntary commitment[.]" N.J.S.A. 30:4-27.5(e).

Under the act, a State or local law enforcement officer may refer an individual to a screening service, "[o]n the basis of personal observation, the law enforcement officer has reasonable cause to believe that the person is in need of involuntary commitment[.]" N.J.S.A. 30:4-27.6(a).

Pursuant to N.J.S.A. 30:4-27.9(b), an individual may not be involuntarily committed unless the person "is in need of involuntary commitment to treatment." This means:

that an adult with mental illness, whose mental illness causes the person to be dangerous to self or dangerous to others or property and who is unwilling to accept appropriate treatment voluntarily after it has been offered, needs outpatient treatment or inpatient care at a short-term care or psychiatric facility or special psychiatric hospital because other services are not appropriate or available to meet the person's mental health care needs.

[N.J.S.A. 30:4-27.2(m).]

The person shall be "admitted involuntarily to a facility only by referral from a screening service or temporary court order." N.J.S.A. 30:4-27.9(b). When a person is committed involuntarily by referral from a screening service without a court order, the facility can only hold that person for seventy-two hours after the referral, and the facility must initiate court proceedings to obtain a temporary order for commitment. N.J.S.A. 30:4-27.10(c); R. 4:74-7(b). These initial proceedings are done ex parte, but will only result in a temporary order of commitment if the screener and the consulting physician have shown that commitment is necessary. R. 4:74-7(b). If a temporary order of commitment is granted, the individual can be committed up to twenty days without further hearing. N.J.S.A. 30:4-27.12.

The civil commitment act further provides immunity for police officers, screening services, and short-term care providers who act in good faith and take "reasonable steps to assess, take custody of, detain or transport an individual for the purposes of mental health assessment or treatment[.]" N.J.S.A. 30:4-27.7(a). This immunity has been extended to municipalities who are sued under a theory of respondeat superior for the actions of their employees. See Ziemba v. Riverview Med. Ctr., 275 N.J. Super. 293 (App. Div. 1994).

The decision to involuntarily commit an individual is discretionary. Id. at 299 300. The Legislature, in creating this immunity, wanted to protect health care professionals and allow them to perform their jobs freely. Id. at 300. "In order to claim the protections of that immunity, therefore, an individual who falls within the definition of an emergency services or medical transport person must act in good faith pursuant to the statute and at the direction of one of the designated individuals, including a law enforcement officer." Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 594 (2009). Health care professionals who make "a prima facie showing that they acted in good faith and took reasonable steps to assess, take custody of and detain [an individual] for purposes of mental health assessment or treatment[,]" are entitled to summary judgment on any claims arising out of the commitment unless the plaintiff can show by competent evidential material that a genuine issue of material fact existed. Ziemba, supra, 275 N.J. Super. at 301.

Typically expert testimony is required to both establish the standard of care and show that it has been breached by the healthcare professionals in civilly committing an individual. Id. at 302. At a minimum a plaintiff must offer actual evidence in support of his claim rather than relying on "fanciful, frivolous, gauzy or merely suspicious" allegations that the medical professionals breached the standard of care. Id. at 301-02 (quoting Judson v. Peoples Bank & Trust Co. Of Westfield, 17 N.J. 67, 73 75 (1954)). Similarly, when a plaintiff claims bad faith in connection with his civil commitment, he must show beyond mere allegations, an improper purpose. Leang, supra, 198 N.J. at 595. Unsupported allegations of bad faith, without more, will not deprive a defendant of immunity. Id. at 581.

Thus, N.J.S.A. 30:4-27.7(a) affords screening services, such as Care Plus, immunity, if they act in good faith. Here, plaintiff presented no expert or other proof that Care Plus acted in bad faith. Quite the opposite, the record shows Care Plus took all reasonable steps towards effectuating plaintiff's commitment in accordance with N.J.S.A. 30:4-27.4. Care Plus performed two initial face-to-face evaluations and one follow-up evaluation. A history of plaintiff's current illness was taken, contact attempted with several collateral contacts, medical and psychological histories of plaintiff were taken and a mental health status was performed. Moreover, Care Plus applied the correct standard of "dangerous to others or property" when it recommended plaintiff's civil commitment. The trial court correctly held that Care Plus was entitled to immunity from liability under N.J.S.A. 30:4-27.7(a) because it acted reasonably when it evaluated plaintiff and recommended his involuntary commitment. Further, Care Plus reasonably relied upon the information provided to it by the LPD.

Plaintiff's allegation that Bergen Regional is not entitled to immunity under N.J.S.A. 30:4-27.7(a) is equally without merit. Plaintiff argues that Bergen Regional denied him proper nourishment consistent with his strict dietary needs. There is no evidence that defendant intentionally and in bad faith refused to honor plaintiff's dietary needs. Plaintiff has produced no medical expert opining that Bergen Regional deviated from any professional standard of care. Conversely, the evidence demonstrates plaintiff was given multiple nutritional assessments and accommodated in a number of ways. The record demonstrates that Bergen Regional provided plaintiff with Kosher foods and fresh fruits, some of which he refused to eat. Bergen Regional also allowed plaintiff's son to bring food to him in the hospital. The court correctly determined that Bergen Regional was entitled to immunity under N.J.S.A. 30:4-27.2(a).

II.

Plaintiff also argues the trial court erred by dismissing his claims against the Borough and the LPD with prejudice. Again, we disagree.

A decision regarding dismissal of a plaintiff's claims for non-compliance with discovery obligations is within the discretion of the trial court. Comeford v. Flagship Furniture Clearance Ctr., 198 N.J. Super. 514, 517, (App. Div. 1983), certif. denied, 97 N.J. 581, 483 (1984). We "[decline] to interfere with [such] matters of discretion unless it appears that an injustice has been done." Ibid. See Cooper v. Consolidated Rail Corp., 391 N.J. Super. 17, 22-23 (App Div. 2007). We are satisfied the trial court did not abuse its discretion in dismissing plaintiff's complaint as to the Borough and the LPD with prejudice, pursuant to Rule 4:23-5(a)(1), for failing to respond to their interrogatories.

Rule 4:23-5 provides for a two-step process for dismissing a complaint for failure to answer interrogatories. First, the aggrieved party may move for dismissal for noncompliance with discovery obligations. If the motion is granted, the complaint is dismissed without prejudice. R. 4:23-5(a)(1); Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). Then, "if the delinquent party does not cure the discovery delinquency, the party entitled to the discovery may, after the expiration of 60 days from the date of the order, move on notice for an order of dismissal . . . with prejudice." Sullivan, supra, 403 N.J. Super. at 93 (quoting R. 4:23-5(a)(2)).

"[T]he rule expressly provides that restoration of the complaint may occur at any time prior to dismissal of the complaint with prejudice, provided the delinquent party has cured the delinquency and paid the requisite reinstatement fee, as well as 'sanctions or counsel fees and costs, or both,' that the court may order as a condition of reinstatement." Id. at 94 (quoting R. 4:23-5(a)(3)).

Here, plaintiff provided none of the discovery previously demanded, either before or after the amended complaint and appearance of counsel. Despite an earlier dismissal without prejudice for discovery violations and numerous accommodations by the trial judge, plaintiff has never complied with outstanding discovery demands nor filed opposition to either motion to dismiss. As plaintiff failed to demonstrate "exceptional circumstances" pursuant to Rule 4:23 5(a)(2) for failing to answer defendants' interrogatories well over sixty days from entry of the first order of dismissal without prejudice, the court properly granted defendants' motion for dismissal with prejudice.

Additionally, as the trial court noted, the Borough and LPD, were entitled to the same immunity under N.J.S.A. 30:4-27.7(a) as defendants, Care Plus and Bergen Regional. There was ample evidence leading the police officers to believe that plaintiff was going to be a threat to his neighbor and his neighbor's property to justify bringing plaintiff in for screening.

Plaintiff also argues that the Borough and the LPD were not entitled to immunity under N.J.S.A. 30:4-27.2(a) because they acted in a grossly negligent manner and violated his constitutional rights. We are satisfied that these arguments are without sufficient merit to warrant discussion in awritten opinion. R. 2:11-3(e)(1)(E).

Affirmed.