TUESDAY, SEPTEMBER 19, 2000, RIVERSIDE, CALIFORNIA
(Honorable Victor Miceli, Department 1)
THE COURT: Kathi Stringer versus the County of Riverside.
MR. LIGHT: Good morning, Your Honor. William Light on behalf of the plaintiff, Kathi Stringer.
MR. STOUT: Good morning, Your Honor. Dennis Stout, attorney for defendants County of Riverside and Dr. Dorsey.
THE COURT: The Court has before it motion for summary judgment by the County of Riverside and Dr. Dorsey, and it has a motion for summary adjudication as to the second cause of action by Dr. Dorsey. The problem that I have with this case is the effect of Welfare and Institution Code Section --
THE COURT: -- 5277. That's on my desk. The problem we have on this, Mr. Light, is you are proceeding in the face of immunities, and there's no question that as to the second cause of action against Dr. Dorsey that he's entitled to the immunities which appear in Welfare and Institution Code 5278.
There's no question in my mind that the first cause of action is also subject to the immunities of 5278. But the problem that I had with this, Mr. Stout, is that 5277 says that the Court cannot consider the findings without the consent. And consent is not given. It looks to my like we -- not me -- the moving party has failed to sustain its burden.
Now, I called for two files.
THE CLERK: I have it, Your Honor. It's on your desk.
MR. STOUT: 5276 and 5277 is a very confusing section in that it's written in the negative as to the finding that ht underlying decision that the Court must make is in the negative, that the person is not gravely disabled. And the issue of consent is interesting because we're bring the same issue before the Court. It's implicit in filing the action based upon the determination by the Court that they are in fact consenting to what occurred previously.
THE COURT: I don't think that's really the issue. I don't think that's really the issue. The issue here is whether or not the findings on the two prior proceedings can be used or considered by this Court. And 5277 clearly says, "A finding under Section 5276 shall not be admissible in evidence in any civil or criminal proceeding without the consent of the person who was the subject of the finding." Now, this is a civil proceeding, and she does not consent to the finding.
Now, so you have to look at what was the finding in 5276. 5276 says, "Judicial review shall be in the superior court for the county in which the facility providing intensive treatment is located or in the county" -- we needn't worry about that because that's in Riverside. "The person requesting to be released shall be informed of this or her right to counsel by the member of the treatment staff and by the court; and, if he or she so elects, the Court shall immediately appoint the public defender or other attorney.
"The patient shall be advised by the facility that is treating the patient that he or she has the right to request that this information not be provided.
"The Court shall either release the person or order an evidentiary hearing to be ordered to be held within two judicial days after the petition is filed. If the Court finds that the person requesting release is not, as a result of mental disorder," et cetera, et cetera, "he must be released immediately."
I don't agree with your analysis that there's only a negative finding. And if you look at the file, you'll see that in Case. No. 74300 -- that was the petition by the County of Riverside for the appointment of a conservator. In that petition the conservatee, Kathi Stringer, requested a hearing on a petition for writ of habeas corpus for a determination as to her mental status. It clearly comes within the -- within the language of 5276.
If you look at the other case, which is Case. No. 17990, that was the action that was instituted by the public defender on behalf of the petitioner, Kathleen S., for a writ of habeas corpus. Again, comes within the purview of 5276.
So what I'm saying to you, Mr. Stout, is both of these actions came before the Court -- Judge Sullivan admittedly and not this Court -- on petitions for -- either a petition for writ of habeas corpus or for a determination as to her mental capacity.
Now, the problem we have with Mr. Light is that the County and the doctors are exempt from liability; clearly exempt from liability. The only problem that I see here is that Mr. Stout, by relying up on the findings in the two previous actions, may be precluded -- and I'll so find that he is precluded -- do you have those -- he's precluded from using that as the basis of the finding that she was mentally incompetent.
Now. it appears to me -- and I'm going to re-rule on the motion for summary judgment here in a minute -- but it appears to me that what Mr. Stout needs to do -- I don't want you to think for a moment that I'm trying to help one side or the other -- all he needs is declarations from the committing doctor -- no, it wasn't the committing doctor. It was the committing -- he needs a declaration from the committing health provider because the circumstance here was that the intake person did not have the authority to do -- to commit, which he did call -- I forget his name -- and he in turn called the doctor on call, and they -- two doctors then conferred, and they signed the commitment. That then would shift the burden to you to prove that she was not -- I know it's a double negative -- not incompetent or, in other words, that she was competent.
So, really, what Mr. Stout -- this is not a criticism of you al all -- what Mr. Stout is saying, look, Judge Sullivan has made this determination on two previous occasions that she was mentally incompetent. Therefore, since the commitment was made in accordance with the law, then 5272 says that you cannot use the findings of prior hearings as the basis for his predicate.
And really all I want you to do on this -- I'm going to deny -- let me put it this way. I'll make my ruling and tell you where we're at. I'm going to deny the motion for summary judgment for this reason above stated. I'm going to grant the motion for summary adjudication as to the second cause of action against Dr. Dorsey pursuant to the exemption that is provided to Dr. Dorsey in Welfare and Institutions Code 5278. I'm going to deny the motion for summary judgment without prejudice.
We have a trial date coming up, do we not?
MR. STOUT: October 9.
THE CLERK: 10, Your Honor.
THE COURT: October 10. Perhaps it would be just as expedient for us not to worry about a motion for summary judgment and suggest to Mr. Stout that the Court is going to bifurcate the issues and have a determination according to the case of Heater versus Southwood Psychiatric Center. That's a 4th Appelate Court District in San Diego, 42 Cal. App. 4th 1068. What that says, among other things, is that psychiatric hospital or in this instance the County of Riverside is not entitled to absolute immunity from liability for involuntary commitment of mentally disoriented persons and thus a probable cause hearing is required.
So I'm going to bifurcate this. Have whoever -- the nurse, the intake nurse -- what do you call the gentleman that she -- what was his capacity? -- that she called that had the authority to make the commitment?
Mr. Light: Emergency room psychiatrist.
THE COURT: No, it wasn't the psychiatrist. This nurse called --
MR. STOUT: It wasn't the public guardian, was it?
Mr. LIGHT: It has to be one of the medical personal to certify.
MR. STOUT: The initial 5150 was -- my recollection, it was signed by a police officer.
Mr. LIGHT: That's the 5250. Initial 72 hour hold.
MR. STOUT: That's the 5150.
THE COURT: I should have written it down. The nurse was the one who was questioned about whether or not he saw the instances, and he was there observing the conduct of the -- let's see if I can get this straight in my mind. Stringer was brought to the hospital by her parents.
MR. STOUT: Stringer was brought in pursuant to 5150 by the police officer.
THE COURT: Police Officer. I'm sorry. What I'm doing is I'm confusing the facts in the Heater case. That's the problem. That's why I'm confused. In the Heater case is where the parents brought the son in. And then the nurse who was on duty did not have the authority to order the commitment.
But here -- the question here is whether or not the commitment was according to law. And what I'm saying to you, Mr. Stout is you cannot base this, whether it be by res judicata or whether it be by any other doctrine, you cannot base it on the prior finding of Judge Sullivan. So what you're going to have to do is bring in the person who signed the commitment order and have him or her testify as to the reasons why they believed that the person should have been committed pursuant to Welfare and Institutions Code 5150.
If you get past that hurdle, then the immunities kick in, and we have a case.
MR. LIGHT: May I be heard on that, Your Honor?
THE COURT: Surely.
MR. LIGHT: Because I think that perhaps I didn't explain our position well in your opposition. our case is not limited to just an improper certification. That only deals with whether or not -- whether the entity is entitled to hold the person for either 72 hours, 14 days, or some other period of time. Once the person is in the facility, then there are other rights of that person which apply.
And our case is based also on rights of Kathi Stringer which she possessed while in the facility, which we contend were violated and which Judge Sullivan in fact found had been violated. Some of those are constitutional rights. Some of those are statutory rights. The immunity provided by Section 5278 only extends to the act of commitment. It doesn't extend to protect the defendants from anything they do while she's there.
THE COURT: I disagree with you. It also extend to the treatment. And even though you say the treatment may be a violation of her rights, the immunity -- there are immunities. Now, what you're saying is there was malpractice. But the problem we have here is malpractice has to be proven. Though Mr. Stout did not address that issue, he didn't have to because the -- because the immunity for Dr. Dorsey is granted to him by 5278 specifically. The Heater case says that.
MR. LIGHT: I'm familiar with --
THE COURT: You're familiar with it.
MR. LIGHT: I read it.
THE COURT: It says -- I did not miss the point, Mr. Light. What you're saying is when she was incarcerated -- not incarcerated. That's the wrong term.
MR. LIGHT: From our position it was an incarceration, but I understand.
THE COURT: When she was committed, they did bad things to her by taking away the rights which she has been granted, and Judge Sullivan said no, give her her books back, give her her laptop and so forth. The question there is, Is that malpractice according to Dr. Dorsey even though you contend that she continued treating after she said she wanted somebody else. Remember, there was a determination made that she was incompetent. And therefore does she have the capacity to make these determinations as to somebody else. And that's the problem I believe you have.
But in any event, for our purposes, I'm going to deny the motion for summary judgment. I'm going to grant the motion for summary adjudication as to the second cause of action for the reasons stated.
MR. LIGHT: For clarification, second cause of action is for professional negligence against Dorsey?
THE COURT: Yes. And again, we probably -- at the time of trial we're going to bifurcate this, and we'll have the preliminary determination as to whether or not probable cause was shown for committing the plaintiff herein. All right.
Thank you, gentlemen. Very interesting, by the way. Very interesting case that we have here.
MR. STOUT: Thank you, Your Honor.
MR. LIGHT: Thank you, Your Honor.
WELFARE AND INSTITUTIONS CODE
SECTION 5150-51575150.
When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation. Such facility shall require an application in writing stating the circumstances under which the person's condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled. If the probable cause is based on the statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.WELFARE AND INSTITUTIONS CODE
SECTION 5275-5278
5276.
Judicial review shall be in the superior court for the county in which the facility providing intensive treatment is located or in the county in which the 72-hour evaluation was conducted if the patient or a person acting in his or her behalf informs the professional staff of the evaluation facility (in writing) that judicial review will be sought. No patient shall be transferred from the county providing evaluation services to a different county for intensive treatment if the staff of the evaluation facility has been informed in writing that a judicial review will be sought, until the completion of the judicial review. The person requesting to be released shall be informed of his or her right to counsel by the member of the treatment staff and by the court; and, if he or she so elects, the court shall immediately appoint the public defender or other attorney to assist him or her in preparation of a petition for the writ of habeas corpus and, if he or she so elects, to represent him or her in the proceedings. The person shall pay the costs of the legal service if he or she is able. Reasonable attempts shall be made by the mental health facility to notify family members or any other person designated by the patient, of the time and place of the judicial review, unless the patient requests that this information not be provided. The patient shall be advised by the facility that is treating the patient that he or she has the right to request that this information not be provided. The court shall either release the person or order an evidentiary hearing to be held within two judicial days after the petition is filed. If the court finds, (a) that the person requesting release is not, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled, (b) that he or she had not been advised of, or had accepted, voluntary treatment, or (c) that the facility providing intensive treatment is not equipped and staffed to provide treatment, or is not designated by the county to provide intensive treatment he or she shall be released immediately.5276.1.
The person requesting release may, upon advice of counsel, waive the presence at the evidentiary hearing of the physician, licensed psychologist who meets the requirements of the first paragraph of Section 5251, or other professional person who certified the petition under Section 5251 and of the physician, or licensed psychologist who meets the requirements of the second paragraph of Section 5251, providing intensive treatment. In the event of such a waiver, such physician, licensed psychologist, or other professional person shall not be required to be present at the hearing if it is stipulated that the certification and records of such physicians, licensed psychologists, or other professional persons concerning the mental condition and treatment of the person regarding release will be received in evidence.5276.2.
In the event that the person, or anyone acting on his or her behalf, withdraws the request for judicial review, a certification review hearing shall be held within four days of the withdrawal of the request, and the procedures in Sections 5255 to 5256.8, inclusive, shall be applicable.5277.
A finding under Section 5276 shall not be admissible in evidence in any civil or criminal proceeding without the consent of the person who was the subject of the finding.5278.
Individuals authorized under this part to detain a person for 72-hour treatment and evaluation pursuant to Article 1 (commencing with Section 5150) or Article 2 (commencing with Section 5200), or to certify a person for intensive treatment pursuant to Article 4 (commencing with Section 5250) or Article 4.5 (commencing with Section 5260) or Article 4.7 (commencing with Section 5270.10) or to file a petition for post-certification treatment for a person pursuant to Article 6 (commencing with Section 5300) shall not be held either criminally or civilly liable for exercising this authority in accordance with the law.
July 23, 1999 :
Do Nurses Have Probable Cause to Detain & Medicate Agitated & Combative Patients?
Are nurses acting within the scope of their authority [or professional protocol] when
he or she decides what's best for any patient in a given situation? If a patient is acting
in a manner that can be deemed volatile, highly combative and poses a threat to
themselves and others, what actions would be regarded as appropriate in that
situation? This week's case examines these questions in a case and provides an
opportunity for you to form your own opinions.
Heater vs. Southwood Psychiatric Center, 49 Cal. Rptr. 880 – CA (1996)Summary:
This week’s Malpractice/Liability Case raises the issue of whether or not nurses are acting within the scope of their authority in detaining and medicating patients who are highly volatile, combative, and pose a threat to themselves and others.Here is a case in which a California psychiatric nurse, faced with a situation involving an uncontrollable and belligerent patient, determined that she had probable cause to detain and administer medication to this patient.
Under California law, nurses who have probable cause may detain and medicate patients who pose a threat of serious bodily harm to themselves and others.
This patient brought a lawsuit against the nurse and the psychiatric center (that employed her).
It involved the following charges:* False Imprisonment
* Assault and Battery
* Negligent and Infliction of Emotional Distress
* Medical Malpractice
* Libel and ConspiracyThis patient’s brother was murdered on March 21, 1991 when he (the patient) was 23 years old. His mother observed that he, who was always an outgoing and happy-go-lucky person”, had changed. She noted that now there was the smell of alcohol on him and that he was “keeping everything inside.”
Approximately a month after his brother’s murder, this patient came home from work and informed his mother that he needed help. Concluding that her child was indeed falling apart, she decided to seek help for him that very same evening
The patient’s stepfather called the Psychiatric Center and spoke to the Intake Counselor who directed him to bring in the patient. The Intake Counselor then telephoned the Psychiatric Center’s Medical Director and informed him of what he had learned about the history of the patient.
The Medical Director, believing that the patient was agitated and threatening people, concluded that it was likely that the patient met the criteria for a 72-hour hold. Therefore, he ordered that a licensed staff member evaluate the patient upon arrival and confirm the information in order to determine whether or not the patient should be admitted.
It was subsequently decided to admit the patient.
A nurse, who was in the process of entering the facility to begin her shift, heard someone yelling, Close the door. This was because the patient was attempting to use the same door to get out of the building. The patient, who was very irritated and using profanity, was being pulled away from the door by his parents, who were yelling close the door.
The nurse, not knowing who was behind the door, or exactly what was going on, responded by closing the door. A Code 5 was announced on the loudspeaker which brought several of the Center’s employees to the scene. She noted that the patient was becoming combative and was threatening to take on all of the employees who were attempting to help him. The patient was swearing at his parents and threatening the nurse. In addition, saying, I am going to kill them. He also claimed that he wanted to die.
Believing that the patient was dangerous, the employees physically restrained him.
Soon after, the nurse learning of the Medical Director’s order evaluated the patient, concluded that he had a mental disorder, and was a danger to himself and others, and did meet the criteria for a 72-hour hold. She then read the patient his Detainment Advisement and about three hours later injected the patient with Ativan, as ordered by the psychiatrist who was assigned to treat the patient.
She then administered a second dose of Ativan because as she observed that the patient (who was now in restraints) was struggling and highly combative.
In response to the suit brought against the nurse and the psychiatric center by the patient, the Superior Court determined that the defendants were, in fact, immune from liability and granted the defendants’ motion to dismiss the case. The patient appealed.
The Appeal Court’s Ruling:
The state’s Court of Appeals upheld the judgement of the lower court affirming that the nurse had probable
cause to detain the patient. The Court further ruled that the nurse had acted within the applicable standard of care in administering the Ativan to the patient.The Court also found that the nurse did not commit a battery (as charged by the patient), and was acting within the scope of her authority since she was cloaked with statutory immunity in accordance with applicable state law.
Furthermore, the Court decided all of the defendants were immune from liability for medical malpractice given the fact that the detention of the patient was reasonable and lawful. However, the Court noted that a probable cause hearing was required since there is no absolute immunity for persons ordering involuntary detention of psychiatric patients.
Questions to be Answered:
1. Based on the facts in this case, could it be reasonably determined that the patient was a threat and potentially harmful to himself and others?
2. Could it be determined that the nurse was acting within the applicable standard of care when she did administer the drug, Ativan, a second time to a restrained patient?
3. Was the Court of Appeal’s ruling, that all the defendants were immune from liability for medical malpractice because the detention of the patient was reasonable and lawful, a fair ruling?
4. What did the Court mean when it said, there is no absolute immunity for persons ordering involuntary detention of psychiatric patients?
Source: 36 RRNL 11, April 1996