Bell & Bon Secours v. Chance

McDonald, J. Civil commitment of an individual to a mental institution against the individual's will may be sought when it appears necessary for treatment of the individual's mental disorder and for the safety of that individual or others. However, a decision on involuntary admission must take account not only of health and safety concerns, but also of the individual's right to liberty under the State and federal constitutions. Accordingly, under the Maryland Mental Health Law, an individual may not be admitted involuntarily unless the individual: (1) has a mental disorder; (2) needs inpatient care or treatment; (3) presents a danger to the life or safety of self or others; (4) will not or cannot be admitted voluntarily; and (5) could not receive a less restrictive form of intervention consistent with the individual's welfare and safety. An assessment of these criteria is made by a mental health facility when it considers whether to accept an individual presented for involuntary admission.

A final decision as to whether the individual satisfies the criteria for involuntary admission is to be made within 10 days by an impartial hearing officer. Between the initial confinement of an individual and the ultimate review by the hearing officer, a physician caring for the individual at the facility must authorize release of the individual if the physician believes that the criteria for involuntary admission are no longer met. To encourage the appropriate exercise of that judgment, the Mental Health Law provides immunity from liability for a mental health facility, and its agents and employees, concerning decisions made in connection with the involuntary admission process. Brandon Mackey, the 23-year-old son of Respondent Patricia Chance, attempted to commit suicide in April 2011.

He was eventually taken to Petitioner Bon Secours Hospital ("Bon Secours") pursuant to an application for involuntary admission certified by two doctors at another hospital, and came under the care of Petitioner Dr. Leroy Bell, a psychiatrist then employed by Bon Secours. In accordance with the Mental Health Law, a hearing to determine whether Mr. Mackey should be admitted involuntarily or released was scheduled for 10 days later. In the interim, Mr. Mackey was confined at Bon Secours where Dr. Bell assessed and treated him. Two days before the scheduled hearing, Dr. Bell decided that Mr. Mackey did not meet the statutory criteria required for involuntary admission and authorized his release.

Tragically, the day after Mr. Mackey was released, he committed suicide. Litigation ensued in the Circuit Court for Baltimore City. Ms. Chance contended that Dr. Bell - and Bon Secours vicariously as his employer - were negligent in releasing her son. After a jury returned a verdict in Ms. Chance's favor, the Circuit Court vacated that judgment based in part on its understanding of the immunity statute.

A divided Court of Special Appeals reversed the Circuit Court decision. We hold that the process of involuntary admission begins with the initial application for involuntary admission of an individual and ends upon the hearing officer's decision whether to admit or release that individual. During that process, if a physician applies the statutory criteria for involuntary admission and concludes in good faith that the individual no longer meets those criteria, the facility must release the individual. That decision is immune from civil liability and cannot be the basis of a jury verdict for medical malpractice.

I Background A. Involuntary Admission to a Mental Health Facility To place the issues in this case in context, we first outline the relevant statutory provisions governing involuntary admissions to mental health facilities and summarize a key decision of this Court construing the immunity from liability provided for those involved in that process. Admission to a Mental Health Facility under the Mental Health Law The Maryland Mental Health Law comprises Title 10 of the Health-General Article ("HG") of the Maryland Code. HG § 10-1101. Subtitle 6 of the Mental Health Law concerns admission of an individual to a mental health facility for treatment and is divided into five parts.

The statute defines "admission" to a facility as "the process by which an individual is accepted as a resident in an inpatient facility[,]" which process "includes the physical act of the individual entering the facility." HG § 10-101(c)(1)-(2). The statute defines a "facility" as "any public or private clinic, hospital, or other institution that provides or purports to provide treatment or other services for individuals who have mental disorders." HG § 10-101(g). Admission may happen voluntarily - i.e ., with the patient's consent, or it may happen involuntarily - i.e ., without the patient's consent. Particularly pertinent to this case are Part III of Subtitle 6 ( HG § 10-613 through § 10-619 ), which concerns involuntary admission to a facility, and Part V ( HG § 10-631 through § 10-633 ), which among other things concerns the hearing required for an involuntary admission. 1 Involuntary Admission - the Application and Certifications Any person with "a legitimate interest in the welfare of [another] individual" may apply for the involuntary admission of that individual to a facility.

HG § 10-614(a). The application must be made in writing, signed, and dated on a form required by the Behavioral Health Administration of the Department of Health, and state the relationship of the applicant to the individual for whom admission is sought. HG § 10-615(1) - (5). Two certificates from health care providers must accompany that application. 2 HG § 10-615(6).

Those certificates must be based on each provider's personal examination of the individual and must include a diagnosis of a mental disorder, an opinion that the individual needs inpatient care or treatment, and "an opinion that admission to a facility ... is needed for the protection of the individual or another." HG § 10-616(a)(1)-(2). The Department of Health has provided in regulation that a certificate may not be used for an involuntary admission application if the examination on which it is based was done more than one week before the certificate was signed. COMAR 10.21.01.04B(4)(a), D(1)(a). 3 A facility presented with such an application may not admit the individual involuntarily unless five criteria are met: (1) the individual has a mental disorder; (2) the individual needs inpatient care or treatment; (3) the individual presents a danger to the life and safety of the individual or of others; (4) the individual is unable or unwilling to be admitted voluntarily; and (5) there is no available, less restrictive form of intervention that is consistent with the welfare and safety of the individual. HG § 10-617(a)(1)-(5). 4 Thus, in accepting such an individual as a patient, the facility must also assess whether the statutory criteria are met.

Involuntary Admission - Hearing as Prerequisite for Admission The statute entitles "any individual proposed for involuntary admission" to "a hearing to determine whether the individual is to be admitted to a facility ... as an involuntary patient or released without being admitted." HG § 10-632(a). The hearing is to be conducted within 10 days of the patient's "initial confinement" in the facility before an impartial hearing officer designated by the Secretary of Health. HG § 10-632(b), (d). The Secretary of Health has designated the administrative law judges ("ALJs") of the Office of Administrative Hearings to serve as the impartial hearing officers contemplated by the statute.

COMAR 10.21.01.02B(2). After considering all the evidence and testimony of record, the hearing officer is to order the release of the individual from the facility unless there is clear and convincing evidence of each of the five criteria required for involuntary admission. HG § 10-632(e)(2)(i)-(v). Pursuant to a statutory directive, the Department of Health has adopted procedural regulations for such hearings.

HG § 10-632(d)(1) ; COMAR 10.21.01.09. The hearing officer's decision is subject to judicial review under the State Administrative Procedure Act. HG § 10-633. Involuntary Admissions - Regulations Governing the Process The regulations adopted by the Department of Health for involuntary admission provide additional detail concerning the process of admission.

COMAR 10.21.01. Those regulations refer to the individual as being in "observation status" during the time the individual is confined in a facility involuntarily on the basis of an application before "the individual is either admitted, voluntarily or involuntarily, to the inpatient facility or is released by a physician or by an ALJ from the inpatient facility without being admitted." COMAR 10.21.01.02B(18). 5 The regulations provide that an individual confined in a facility on observation status remains in that status unless (1) admitted voluntarily to the facility; (2) released upon a finding by a physician that the individual no longer meets the criteria for involuntary admission; or (3) either admitted to or released from the facility as a result of the hearing before the ALJ. COMAR 10.21.01.07F. The regulations thus contemplate that an individual confined in a facility as a result of an application for involuntary admission is considered admitted to the facility only if the individual consents ( i.e., the admission becomes voluntary) or if involuntary admission is authorized by an ALJ. 6 Involuntary Admission - Statutory Immunity The Mental Health Law provides immunity from liability for those involved in the decision whether to admit an individual to a mental health facility against his or her will.

HG § 10-618 ; Maryland Code, Courts & Judicial Proceedings Article ("CJ"), § 5-623. In particular, an applicant who acts "in good faith and with reasonable grounds" is immune from civil or criminal liability relating to the application. HG § 10-618(a) ; CJ § 5-623(b). Similarly, a mental health facility, as well as an agent or employee of a facility, that, in good faith and with reasonable grounds, acts in compliance with the provisions of Part III of Subtitle 6 is not civilly or criminally liable for those actions.

HG § 10-618(b) - (c) ; CJ § 6-623(c)-(d). The Williams Case: Statutory Immunity Applies to Decision Not to Admit This Court construed the scope of the immunity granted in HG § 10-618 and CJ § 5-623 in Williams v. Peninsula Regional Medical Center , 440 Md. 573 , 103 A.3d 658 (2014). In that case, a mother brought her son to the hospital because the son had been suffering from suicidal thoughts and hallucinations. 440 Md. at 575 -76 , 103 A.3d 658 . After evaluating the son, the mental health care providers at the hospital decided to release him without admitting him to the hospital and directed him to "return if he felt that he would harm himself or others." Id.

That same night, the son spent several hours wandering the streets, broke into a residence, and stood in the front yard wielding a knife. Id. When the police arrived, the son rushed the officers, who then shot and killed him. Id.

The family sued the mental health care providers, asserting they were liable for their "failure to admit" the son which, the family alleged, proximately caused his death. The circuit court dismissed the complaint on the basis of statutory immunity - a decision affirmed by the Court of Special Appeals. 213 Md. App. 644 , 75 A.3d 359 (2013). In this Court, the family argued that the statutory immunity provided by Mental Health Law applies only when a facility decides to admit an individual and not when it decides against admitting the individual. The Court reviewed the structure of Part III of Subtitle 6 and its legislative history.

The Court noted that its purpose was to discourage excessive institutionalization and to protect the due process rights of individuals who are proposed for involuntary admission. Id. at 586, 103 A.3d 658 . "That the General Assembly mandated a multi-step process before an individual's involuntary admission ... suggests a legislative concern that individuals may be wrongfully admitted." Id. at 584 , 103 A.3d 658 . If a health care provider has immunity only when the provider admits an individual, the immunity provision would undermine the purpose of the statute, creating "an incentive to err on the side of involuntary admittance in order to receive statutory immunity and avoid liability." Id. at 587 , 103 A.3d 658 .

The Court reasoned that applying the immunity provisions to the provider's decision on admission - regardless of whether that decision is to admit or to release the individual - ensures that no one will be held against his or her will out of a physician's fear of a lawsuit. Id. at 587 , 103 A.3d 658 . Accordingly, the Court held that the statutory immunity extended to the good faith decision to release the son. B. Facts While the parties differ on whether Dr. Bell was negligent or has immunity, the basic chronology of events appears to be undisputed.

The Attempted Suicide of Brandon Mackey On March 13, 2011, after struggling for years with chronic mental illness, 23-year-old Brandon Mackey cut his wrists with a knife in an apparent attempt to commit suicide. At the time, Mr. Mackey lived at home with his mother and her husband, who witnessed the incident and called the police. An ambulance arrived and transported Mr. Mackey to Harbor Hospital. Mr. Mackey's First Stay at Bon Secours - Voluntary Admission Harbor Hospital referred Mr. Mackey to Bon Secours, where he was voluntarily admitted for psychiatric treatment the next day, March 14, 2011.

Once at Bon Secours, Mr. Mackey came under the care of Dr. Bell, an attending psychiatrist at the hospital. Dr. Bell evaluated Mr. Mackey and gathered that Mr. Mackey was depressed. He prescribed an antidepressant, an antipsychotic (as the need might arise), and other medications for Mr. Mackey. Mr. Mackey remained at Bon Secours from March 14 until March 21, 2011, under Dr. Bell's care.

At the time of Mr. Mackey's discharge, Dr. Bell diagnosed him as having "major depressive disorder." According to Dr. Bell, at that time he did not see symptoms of schizophrenia in Mr. Mackey, and the "psychotic behavior" that was apparent at the beginning of Mr. Mackey's time at Bon Secours "appeared to withdraw" by the time of his discharge. Dr. Bell also felt that the level of Mr. Mackey's depression had decreased over the course of his treatment at Bon Secours. In Dr. Bell's view, Mr. Mackey became more active, interacted more with others, and no longer communicated any suicidal thoughts. Dr. Bell decided to discharge Mr. Mackey on March 21, 2011, and move him to an aftercare program - a lower level of care that included partial hospitalization. 7 Mr. Mackey's Second Stay at Bon Secours - Involuntary Admission Less than two weeks later, on April 1, 2011, Mr. Mackey was again taken to an emergency room.

This time, Ms. Chance brought Mr. Mackey to St. Agnes Hospital after Mr. Mackey sustained a wound to his neck. Mr. Mackey claimed that the cut had happened by accident when he fell on the stairs while holding a pair of scissors. However, the emergency room doctor believed that Mr. Mackey had intentionally cut his neck in a suicide attempt. A psychiatric evaluation of Mr. Mackey was performed, and a social worker completed an application for Mr. Mackey's involuntary admission to Bon Secours.

Two clinicians at St. Agnes Hospital provided the required certificates that accompanied the application for involuntary admission of Mr. Mackey to Bon Secours. A hearing was scheduled for April 11, 2011 - 10 days after Mr. Mackey's initial confinement, and he was transferred to Bon Secours. Dr. Bell once again began to treat Mr. Mackey. Dr. Bell examined Mr. Mackey, and agreed with the emergency room doctor at St. Agnes that Mr. Mackey had attempted to commit suicide.

On this occasion, Dr. Bell diagnosed Mr. Mackey with schizoaffective disorder - a hybrid of a mood disorder (in Mr. Mackey's case, depression) and schizophrenia. Notes made by the treatment team at that time indicated that Mr. Mackey was "suspicious," that he had a "flat or constricted affect," and that he was "holding his head ... and ... pacing back and forth," and "responding to internal stimuli" - i.e ., "hearing voices." As Dr. Bell treated Mr. Mackey, he tried to determine whether those symptoms were evidence of psychotic behavior or obsessional behavior. Six days into Mr. Mackey's second stay at Bon Secours, on April 6, 2011, Dr. Bell prescribed for Mr. Mackey the drug Risperdal, an antipsychotic medication that, as Dr. Bell understood it, could also potentially reduce any obsessional behavior. According to Dr. Bell, he saw improvement in Mr. Mackey's symptoms over time.

While Mr. Mackey had started his stay at Bon Secours denying that he had attempted to commit suicide, by April 6, 2011, he had admitted to Dr. Bell that the wound on his neck was the result of a suicide attempt. 8 Additionally, Mr. Mackey was denying suicidal thoughts, paranoia, and suspiciousness. According to Dr. Bell, Mr. Mackey was compliant with his medication, was future oriented, and made no efforts to harm himself. Throughout his stay Mr. Mackey maintained that he wanted to leave Bon Secours and return home. In light of the improvements in Mr. Mackey's condition, Dr. Bell felt that he "was stable enough to go to a lower level of care and was not a danger to himself or others" - which meant that two of the criteria required for involuntary admission no longer applied.

As a result, Dr. Bell authorized the release of Mr. Mackey on April 9, 2011. On the day of Mr. Mackey's discharge, Dr. Bell referred him to an aftercare program, which was to begin on April 12, 2011. Mr. Mackey left Bon Secours with Ms. Chance and returned home. Mr. Mackey's Suicide The next day, on the morning of April 10, 2011, Mr. Mackey left his home after his mother went to church.

He went to a subway station, jumped in front of an oncoming train, and was killed. C. Legal Proceedings The Complaint Almost two years after her son's death, on February 25, 2013, Ms. Chance commenced this wrongful death and survivorship action against Dr. Bell and Bon Secours 9 in the Circuit Court for Baltimore City. Acting individually and as personal representative of Mr. Mackey's estate, Ms. Chance sued Dr. Bell and Bon Secours for medical malpractice. In her complaint, Ms. Chance claimed, among other things, that Dr. Bell - and through vicarious liability, Bon Secours as his employer 10 - breached the accepted standard of care in the treatment of Mr. Mackey by prematurely releasing Mr. Mackey from Bon Secours. 11 Had Dr. Bell acted otherwise, Ms. Chance alleged, Mr. Mackey would not have committed suicide.

Motion for Summary Judgment Based on Immunity Statutes On December 16, 2013, Dr. Bell filed a motion for summary judgment arguing that he was entitled to statutory immunity under HG § 10-618(c) and CJ § 5-623(d) for his decision to release Mr. Mackey from Bon Secours. Shortly thereafter, Bon Secours filed a similar motion. Both motions cited the recently-issued decision of the Court of Special Appeals in Williams in support of this proposition. 12 The motions argued that the decision to release Mr. Mackey was essentially a decision "not to admit" Mr. Mackey, and under the recent Court of Special Appeals decision in Williams , a decision not to admit is covered by the immunity granted in HG § 10-618 and CJ § 5-623. On February 24, 2014, the Circuit Court denied the motions for summary judgment, ruling that "admission" under the Mental Health Law is "limited to the initial decision concerning admission and not to decisions that are made while a patient remains admitted in the facility." Accordingly, the Circuit Court ruled, Dr. Bell and Bon Secours were not entitled to immunity for Dr. Bell's decision to release Mr. Mackey after Bon Secours initially accepted him when he first entered the hospital.

The implicit premise of the Circuit Court decision was that the decision on involuntary admission of Mr. Mackey was complete when he was first confined at Bon Secours on April 1, 2011, and his subsequent release was not part of that decision. Both the motions for summary judgment and the Circuit Court decision referred only to the statutory provisions concerning immunity and the initial application. Neither made any reference to HG § 10-632 concerning the required hearing or to the regulations governing the process for involuntary admission. Plaintiff's Motion in Limine to Preclude Evidence Concerning Immunity After the Circuit Court denied the motion for summary judgment, Ms. Chance filed a motion in limine on April 4, 2014, to preclude Dr. Bell and Bon Secours from presenting any evidence or argument to the jury relating to immunity under HG § 10-618 and CJ § 5-623.

Ms. Chance contended that the potential application of those statutes was a purely legal question, inappropriate to present to a jury, and that the legal issue had already been decided by the Circuit Court in its ruling on summary judgment. Dr. Bell and Bon Secours did not file oppositions to the motion in limine . At a motions hearing held shortly before trial, the trial judge - who was not the same judge who had ruled on the summary judgment motion - asked counsel for Dr. Bell and Bon Secours whether they "concede that there is no issue with the statutory immunity for health care providers who admit patients[.]" Defense counsel responded that it was not an issue that would be presented to the jury. The Court then granted the motion in limine , indicating that it agreed with the earlier decision on summary judgment that the immunity under the statute "occurs at the point of admission and possibly continued admission," but is inapplicable to a decision to discharge after admission.

The Trial The case was tried before a jury during June 23-26, 2014. At the trial, the medical records concerning Mr. Mackey's various hospitalizations were introduced in evidence by stipulation. Plaintiff's counsel called Ms. Chance and Dr. Bell to the stand to describe the events surrounding Mr. Mackey's two stays at Bon Secours, his release on April 9, 2011, and the aftermath. The defense examined Dr. Bell extensively as well, and called a registered nurse from Bon Secours who worked with Dr. Bell and who cared for Mr. Mackey during both of his stays at the hospital.

She testified as to the improvement in Mr. Mackey's condition during his second stay at Bon Secours. The heart of the case was a battle of two highly-credentialed expert psychiatrists concerning the merits of the decision to release Mr. Mackey. Dr. Nicola Cascella was called to testify as an expert witness for the plaintiff on whether Dr. Bell had complied with the standard of care. In his testimony, Dr. Cascella criticized Dr. Bell for not consulting more with Mr. Mackey's family and not obtaining additional records of Mr. Mackey's prior hospitalizations.

He also opined that Dr. Bell had failed to diagnose Mr. Mackey correctly and implement an appropriate course of treatment. Ultimately, Dr. Cascella testified that Dr. Bell's decision to discharge Mr. Mackey on April 9, 2011 was a breach of the applicable standard of care. Dr. Cascella testified that, in his opinion, Mr. Mackey continued to meet all five criteria required for involuntary admission at the time of his release from Bon Secours. Dr. Cascella concluded that Dr. Bell's decision to release Mr. Mackey "more likely than not" caused Mr. Mackey's suicide.

In its case, the defense called Dr. John Lion, who opined that Dr. Bell's decision to release Mr. Mackey on April 9, 2011, complied with the applicable standard of care. We need not chronicle the details of Dr. Lion's testimony for purposes of this opinion, as we will assume that the jury accepted Dr. Cascella's opinion as to one or more of the points in dispute. See Part II.B. of this opinion concerning the standard of review. At the close of the plaintiff's case, Dr. Bell and Bon Secours moved for judgment.

They argued, among other things, that no reasonable juror could find, on the basis of Dr. Cascella's testimony, that there was a breach of the standard of care or causation of Mr. Mackey's suicide. The trial court denied the motion with the observation that it was "very difficult [to determine] whether Dr. Cascella's opinion [was] sufficient, both on the standard of care and breach of the standard of care..." At the close of all of the evidence, Dr. Bell and Bon Secours renewed their motion for judgment. The Circuit Court again characterized the plaintiff's "best evidence" on the standard of care and causation - Dr. Cascella's testimony - as "very marginal," but elected to reserve its ruling on the motion, pursuant to Maryland Rule 2-519(c), and send the case to the jury. On June 26, 2014, the jury returned a verdict in Ms. Chance's favor.

It awarded $6,112 for funeral expenses and noneconomic damages of $2.3 million. 13 Post-Trial Motion for Judgment Notwithstanding the Verdict Dr. Bell and Bon Secours filed a post-trial motion for judgment notwithstanding the verdict ("judgment NOV") or alternatively for a new trial. On November 6, 2014, the Circuit Court heard argument on that motion. In a memorandum opinion dated December 11, 2014, the Circuit Court granted the motion for judgment NOV and vacated the judgment in favor of Ms. Chance. The Circuit Court explained that Dr. Cascella's testimony failed to establish that Dr. Bell or Bon Secours had breached the applicable standard of care.

Although the court recognized that neither Dr. Bell nor Bon Secours had relied on statutory immunity in their motion for judgment NOV, 14 the court reasoned that the statutory process for involuntary admission immunity and the recently-issued Williams decision were relevant to the question before it. 15 The Circuit Court held that the Mental Health Law requires a physician, when deciding whether to "continue admission" of a patient, to "consider the patient's countervailing liberty interest and to discharge the patient as soon as the [physician] believes, in his or her best judgment, the patient safely can be treated and maintained in a less restrictive setting." The Circuit Court ruled that Dr. Cascella's opinion that Dr. Bell " could have found the statutory criteria to be satisfied and therefore could have held Mr. Mackey until the ALJ hearing on the following Monday, both failed to give weight to Mr. Mackey's liberty interest and failed to answer the negligence question." (emphasis in original). Determining that the "criteria for involuntary admission are necessarily subject to a broad range of judgment," and "that is why the General Assembly has afforded immunity from civil liability when that discretion is exercised in good faith," the Circuit Court found that Dr. Cascella failed to answer the question "whether no reasonable physician exercising reasonable care in [those] circumstances would have discharged Mr. Mackey." Appeal to Court of Special Appeals Ms. Chance appealed the Circuit Court's decision to the Court of Special Appeals. In an unreported 2-1 decision, the Court of Special Appeals reversed the Circuit Court. Chance v. Bon Secours Hosp. , 2017 WL 1716258 , at ⁶ (May 2, 2017).

The opinion of the panel majority stated that the dispositive question on appeal was whether there was evidence from which the jury could have concluded that Dr. Bell's decision to discharge Mr. Mackey on April 9, 2011, was a breach of the applicable standard of care. It concluded that Dr. Cascella's testimony was sufficient to support the jury verdict. Id. at ⁴. Specifically, the jury could have found from Dr. Cascella's testimony that: "(1) the standard of care required Dr. Bell not to discharge [Mr. Mackey] until his symptoms of psychosis were significantly reduced by Risperdal, (2) that, at the time Dr. Bell discharged [Mr. Mackey], the patient continued to present symptoms of responding to internal stimuli, as well as poor insight and poor judgment, indicating that [Mr. Mackey's] symptoms had not yet been significantly reduced by Risperdal, and (3) that [Mr. Mackey's] premature discharge from Bon Secours was a proximate cause of his death." Id. at ⁵.

The panel majority did not address the effect of the immunity statutes or the Williams decision. Judge Friedman dissented from the panel decision. In Judge Friedman's view, Dr. Bell's decision to release Mr. Mackey "could not, as a matter of law , constitute a violation of the standard of care." Id. at ⁶ (emphasis in original). Judge Friedman opined that Dr. Cascella's proposed standard of care would mean that "any physician who decided not to commit his patient under these circumstances would be open to civil liability." Id. at ⁶.

This, Judge Friedman argued, would conflict with HG § 10-618, which, as explained in the Williams decision, protects facilities and their physicians from liability for a good-faith decision not to admit an individual involuntarily. Id. We granted a petition for writ of