Opinion
No. CV-03-0480365
July 20, 2007
MEMORANDUM OF DECISION
The plaintiff, Theresa Hanson, complains that on two separate occasions the agents, servants or employees of the defendant, Hospital of Saint Raphael (HSR) mistreated her when she presented at the Emergency Room for treatment. Her lawsuit contains six counts. With regard to the July 2000 incident the plaintiff claims she was assaulted, suffered the intentional infliction of emotional distress, and was falsely imprisoned. With regard to the March of 2002 incident the plaintiff claims she was assaulted, suffered the negligent infliction of emotional distress and was treated negligently.
The defendant denies the essential allegations of the plaintiff's complaints. The defendant asserts placing the plaintiff in restraints was essential to provide medical care and protect the defendant from harming herself or others. It further asserts that the security personnel were independent contractors.
Although initially represented by counsel, the plaintiff represented herself at trial. On the date jury selection was scheduled to commence the defendant indicated that it was willing to withdraw its request for a jury trial and to have the case presented as a court-side trial. The plaintiff also agreed to proceed with the case as a court-side trial. The plaintiff was canvassed and the court found that her waiver of a jury trial was voluntarily and knowledgeably made. A written waiver was filed with the court by both parties. The trial proceeded over the course of eight days. During the trial the court, at the plaintiff's request, issued subpeonas to witnesses. The plaintiff disclosed her treating physician and psychiatrist as expert witnesses. The plaintiff subsequently elected not to call her disclosed expert witnesses as witnesses during the trial.
Law — July 22, 2000 Incident
The first count of the complaint asserts liability on a theory that the above described conduct was an assault and battery. "A civil assault is the intentional causing of imminent apprehension of harmful or offensive contact in another. 1 Restatement (Second) Torts sec. 21." DeWitt v. John Hancock Mutual Life Ins. Co., 5 Conn.App. 590, 594 (1985). A battery is a completed assault. In order to establish liability for the assault and battery, the plaintiff must prove the defendant HSR intended to cause her harm and in fact did cause her harm. There is no dispute the plaintiff was placed in restraints and received some injuries while being placed in restraints against her will on July 22, 2000. The dispute in this case focuses on the intent of the defendant in taking those actions.
The intent necessary to establish liability is the intent of the actor rather than the perception of the victim. In order to be held liable "it is necessary that the actor intend to inflict a harmful or offensive bodily contact upon the other or a third person or put him in apprehension of such contact. Unless he acts with such intent, the actor is not liable for an assault . . ." 1 Restatement (Second) Torts, section 21 (1965). Id., comment f to section 21.
The intent required for a battery is similar to that required for an assault. 1 Restatement (Second) Torts Sec. 13 Battery. The touching must be an intentional and unpermitted contact with the body of the plaintiff. Courts have also described the required intent as being "unlawful." The court then went on to define "unlawful" as meaning "either intentional, wanton or negligent conduct in the application of force." Moriarty v. Lippe, 162 Conn 371, 389 (1972). The contact complained of must be harmful or offensive to the plaintiff's person. The contact may be a mere touching or blow of significant force.
Thus in order to prevail on the first count of her complaint the plaintiff must establish the intent of the defendant when its employees or agents placed her in restraints on July 22, 2000.
Also relevant to the court's evaluation of the defendant's intent is General Statute 17a-502(a). This statute provides "Any person who a physician concludes has psychiatric disabilities and is dangerous to himself or others or gravely disabled, and is in need of immediate care and treatment in a hospital for psychiatric disabilities, may be confined in such a hospital, either public or private, under an emergency certificate as hereinafter provided . . . Such certificate shall state the date of personal examination of the person to be confined, . . . shall state the findings of the physician relative to the physical and mental condition of the person and the history of the case, if known, and shall state that it is the opinion of the physician that the person examined has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled and is in need of immediate care and treatment in a hospital for psychiatric disabilities."
The court also considered guidelines for the use of restraints published by the federal government. The Health Care Financing Administration (HCFA) issued regulations, effective August 2, 1999, applicable to hospitals participating in federal Medicare/Medicaid programs regarding restraint and seclusion. The defendant participates in the Medicare/Medicaid program.
The HCFA directive, 42CFR Ch. IV 482.13(f)(1) provides "The patient has the right to be free from seclusion and restraints, of any form, imposed as a means of coercion, discipline, convenience, or retaliation by the staff." After articulating the general principle that a patient has a right to be free from restraint the section continues on to identify the general circumstances when restraints may be applied and procedures to be followed. Subsection (2) provides "Seclusion or a restraint can only be used in emergency situations if needed to ensure the patient's physical safety and less restrictive interventions have been determined to be ineffective." The regulation continues in subsection (3)(ii)(B) "The treating physician must be consulted as soon as possible, if the restraint or seclusion is not ordered by the patient's treating physician. (C) A physician or other licensed independent practitioner must see and evaluate the need for restraint or seclusion within 1 hour after the initiation of this intervention."
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The second count of the plaintiff's complaint alleges that HSR intentionally inflicted emotional distress upon the plaintiff. "In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v Allstate Ins. Co., supra, 262 Conn. 442-43.
"Liability [for intentional infliction of emotional distress] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004).
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The third count of the complaint alleges false imprisonment with regard to the incident occurring on July 22, 2000. "False imprisonment is the unlawful restraint by one person of the physical liberty of another. Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982); Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499, 101 A.2d 500 (1953). "Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability. 32 Am.Jur.2d, False Imprisonment 14." Green v. Donroe, supra. "To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly." LoSacco v. Young, 20 Conn.App. 6, 19, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989)." Berry v. Loiseau, 223 Conn. 784, 820 (1992). The defendant claims that its restraint of the plaintiff was not "unlawful" in that it was in compliance with its obligations pursuant to Gen. Stat. 17a-502. Dr. Jean-Baptiste determined that a Physicians Emergency Certificate (PEC) should issue and the plaintiff, because of her psychiatric disabilities was in need of "immediate care and treatment in a hospital for psychiatric disabilities . . ." See Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499 (1953).
Findings of Fact — July 22, 2000
By way of background, the plaintiff was 37 years old at the time of the July 22, 2000 incident. She had a significant history of psychiatric problems. The plaintiff was hospitalized for psychiatric treatment on multiple occasions in the early 1990s. During the course of these hospitalizations she had been physically restrained a number of times. When she presented to the HSR emergency room in 2000, the plaintiff had multiple chronic psychiatric diagnosis's including Depression and Anxiety, Post-Traumatic Stress Disorder (PTSD), Dissociative Identity Disorder (DID), Alcohol and Marijuana Abuse and Bulimia. On an earlier admission to HSR the plaintiff eloped from the hospital and had to be escorted back by hospital security.
The plaintiff's history was significant for frequent incidents of self-mutilation. Some of these mutilation incidents occurred while she was a patient in a psychiatric hospital. Some of the incidents of mutilation did not require professional medical treatment. When the mutilation was significant enough to require medical treatment the plaintiff would seek treatment directly from her personal physician rather than go to an emergency room. The plaintiff was emotionally traumatized by her prior psychiatric hospitalizations and strongly preferred to receive treatment in a private medical setting. In July of 2000 Ms. Hanson was regularly treating with a psychiatrist and an internist. The plaintiff also acknowledged having suicidal thoughts but she denied that her mutilation activities were suicidal in nature. She asserted that her self-mutilations were dramatic gestures to relieve her stress rather than actual suicide attempts.
The plaintiff, while having some insight into her chronic mental health issues, acknowledged that she tended to decompensate in hospitals because of her earlier psychiatric hospitalizations.
On July 22, 2000, the plaintiff ended a romantic relationship. She was drinking a bottle of beer every two hours as a means of self-medication. Her former partner was at her apartment to discuss financial issues and the division of their possessions. The plaintiff was angered and distressed by this conversation. To decrease the stress she picked up a knife and cut her left forearm. It was a deep cut and the plaintiff bled profusely. The cutting deescalated her distress but caused other obvious immediate difficulties. The plaintiff applied pressure to the wound and the police and emergency medical personnel were called. Upon arriving at the plaintiff's apartment the medical personnel cleaned and bandaged the wound. Her internist was not available to treat the wound so the plaintiff had to go the HSR for emergency treatment. The police and emergency medical personnel let the plaintiff take herself for additional medical care.
When the plaintiff arrived at the defendant's Emergency Room she was taken immediately to the "fast track" area. Her wounds were inspected by a nurse and a physician's assistant (PA). The PA observed that the wound exposed tendons in the plaintiff's forearm. No damage to any arteries or veins was noted. The wounds were sutured and bandaged by the PA. The plaintiff was given wound-care instructions but not discharged. Based upon the plaintiff's report of self-infliction of the wound a psychiatric consult was requested to determine if the plaintiff was a further danger to herself or others.
Dr. Michel Jean-Baptiste was the psychiatric resident on duty at the Emergency Department for HSR on July 22, 2000. He is board certified in Neurology and Psychiatry. Dr. Jean-Baptiste interviewed the plaintiff and received information from her regarding her psychiatric history. When Dr. Jean-Baptiste evaluated Ms. Hansen he found that she had poor insight and poor judgment. He noted the severity of the self-mutilation and that by her statements she had been drinking. Ms. Hanson requested that Dr. Jean-Baptiste contact her treating psychiatrist, Dr. Tesluk.
Dr. Jean-Baptiste was able to reach Dr. Tesluk. He advised Dr. Tesluk of his concerns that this was a serious suicide attempt or gesture and of his plans to sign a PEC, pursuant to General Statute 17a-502(a), to admit Ms. Hansen to the psychiatric ward on an involuntary basis. He invited Dr. Tesluk to come to HSR to evaluate Ms. Hanson's mental state if she disagreed with his evaluation. Dr. Tesluk did not come to the HSR. Dr. Jean-Baptiste then advised Ms. Hansen of his intent to involuntarily hospitalize her.
Ms. Hansen became agitated upon learning of Dr. Jean-Baptiste's decision. Gilbert Shaw, an ER nurse, called security to assist him in moving Ms. Hansen from the area of the Emergency Room where her wounds were treated to the psychiatric waiting room in the Emergency Room.
As Nurse Shaw and security were walking Ms. Hanson to the psychiatric waiting area Ms. Hanson "mouthed off" to the security guards. Ms. Hanson then made an attempt to elope from the hospital. Security guards prevented Ms. Hanson from leaving the hospital. Ms. Hanson became more agitated and aggressive, lashing and hitting with her hands, and biting and spitting as security prevented her from escaping. As she struggled with security guards Ms. Hanson received bruises to multiple parts of her body. The security guards brought the plaintiff down to the floor and initially handcuffed her until a stretcher could be located. When the stretcher was brought in the handcuffs were removed and Ms. Hanson was placed in soft restraints. The four-point restraints were maintained for approximately an hour. The nurses who observed the restraint procedure testified that the use of restraints was appropriate and that the restraints had been placed on the plaintiff in an ordinary manner.
The plaintiff experienced this sequence of events differently. She denies that she became as agitated as described by security and nursing staff, denies trying to run from the hospital and denies resisting being restrained. She claims that she was choked, that her head was repeatedly smashed into the floor and that the guards were unnecessarily rough in their restraint activity. The photographs indicate that the plaintiff had significant bruising on multiple parts of her body from the struggle when the restraints were first applied.
Dr. Jean Baptiste and Dr. Steward testified that physical restraints were appropriate for use when a patient presented a risk of injury to themselves or others, if the patient were out of control or if the patient could not be redirected. In restraining a patient the arms, legs and head needed to be secured.
Once the plaintiff was in the psychiatric waiting room she received an intramuscular injection of Ativan, an antianxiety medication and calmed down. Her wound was reexamined. Kathy Damon, R.N. engaged the plaintiff in conversation and as the plaintiff calmed down Ms. Damon removed the restraints on the plaintiff's arms.
The plaintiff was subsequently transferred to the psychiatric floor of HSR, Celentano One. She spent a relatively uneventful night and was released from the HSR the next day at 1 p.m.
In July of 2000 HSR contracted with First Security Services Corporation to provide security services in the emergency room. The security guards were trained by their employer regarding the conditions they might encounter in the emergency room. First Security was not named as a defendant in this lawsuit.
Analysis — July 22, 2000
In evaluating the intent of the defendant's personnel the court is persuaded that the defendant's decision to obtain a psychiatric consultation and evaluation under the presenting circumstances was appropriate and lawful. The plaintiff's self-mutilation in this instance was severe and potentially life altering or life threatening. The wound exposed tendons in her forearm and she is fortunate that she did not sever any major blood vessels. Once the psychiatrist made the required statutory findings to support the signing of the PEC the defendant's agents took appropriate steps to ensure that the plaintiff stayed in the hospital for further observation and treatment. The plaintiff did not offer any expert testimony to contradict the predicate findings of the Emergency Room psychiatrist.
It is unfortunate that the plaintiff received the injuries that she did as she was placed in restraints. The court finds, however, that the plaintiff resisted and then actively struggled with hospital security personnel as they escorted her to another waiting area in the emergency room, prevented her from eloping and then placed her in restraints so as to prevent injury to herself or others. Due to the plaintiff's attempt to elope from the hospital a brief period of restraint through he use of handcuffs, until a stretcher could be obtained was reasonable. The restraints as applied were appropriate to protect the hospital personnel and to keep the plaintiff in the Hospital for further treatment.
There is no persuasive evidence that the defendant or its agents harbored an intent to injure or harm the plaintiff. The defendant's conduct was consistent with its statutory obligation to provide care for an individual for whom a PEC had been issued. Restraints in order to protect a patient or staff, although a last resort, are a permitted activity.
There is no evidence that the security guards were animated with a desire to injure the plaintiff. At the time the alleged assaultive behavior occurred a physician, Dr. Jean Baptiste had made a determination that the plaintiff was a danger to herself or others and that pursuant to statute he was causing her to be admitted to the hospital for further treatment. The nurses and security guards that participated in the restraint procedure were aware that an involuntary hospitalization had been ordered and were escorting the plaintiff to the preadmission area of the emergency room. Significantly the plaintiff did not offer any expert testimony to contradict the medical judgment of Dr. Jean Baptiste nor o evaluate the conduct of the security guards. In light of the plaintiff's struggle with the guards it is impossible to discern whether undue force was used by the guards. The plaintiff has failed to met her burden of proof, the preponderance of he evidence, that the defendant's agents, servants or employees intended to assault and batter the plaintiff.
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As to the second count, the court has previously evaluated the conduct of the defendant's agents or servants in the application of the restraints and determined that the defendant did not possess an intent to injure the plaintiff. The applications of restraints under the circumstances was not done with an intent to inflict emotional distress nor was the conduct extreme or outrageous.
In support of her claim that there was an intentional infliction of emotional distress the plaintiff further alleges that after the restraint procedures the defendant failed to reexamine the wound on her forearm, that when she was released from restraints she was placed in a dirty and littered waiting room and that she was not allowed to speak with a patient advocate. The court found that the plaintiff's wound was reexamined. Even if the waiting room was as described by the plaintiff, those conditions, under the circumstances was neither extreme nor outrageous. The plaintiff has not met her burden of proof with regard to these additional circumstances. The plaintiff cannot prevail on the second count of her complaint.
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As to the third count, the court finds that under the previously described circumstances that the restraint of the plaintiff was not unlawful. A physician had authorized, pursuant to statute, the involuntary hospitalization of the plaintiff. The plaintiff attempted to elope from the hospital and the security personnel, consistent with the PEG, prevented her from leaving the hospital. The plaintiff has not met her burden of proof with regard to the third count of her complaint.
Findings of Fact — March 5, 2002
The next incident that is the subject of the complaint arose on March 5, 2002. The plaintiff became angry with her new partner. She made gestures as if cutting herself and advised her partner that she was going to jump in front of a car. The plaintiff left the house. Her partner called the police. The plaintiff was soon picked up by the police and taken by ambulance to HSR. The police requested, pursuant to Gen. Stat. 17a-503(a), that she be psychiatrically evaluated at the HSR regarding the alleged threat to commit suicide.
Dr. William Bodden an employee of the defendant, was on duty in the Emergency Room when the plaintiff was admitted. The plaintiff was taken into the portion of the emergency room used for psychiatric admissions. It is a large room with partitions. In accordance with standard policy for psychiatric admission patients, the plaintiff was asked to take off her clothing and get into a hospital gowns. The purpose of the defendant's policy was to ensure that the patient did not have any weapons or matches that could be used to injure themselves, other patients, staff or to create a dangerous condition in the emergency room.
The hospital records document that the plaintiff was informed of the reason for the requirement and that an attempt would be made to contact her private physicians.
The plaintiff refused to remove her clothes. She was advised multiple times of the hospital policy. She took off her coat but then sat on her hands and refused to remove her shirt and pants. She was advised that security would be called. Security personnel were called to assist in getting the plaintiff to comply with hospital policy. The plaintiff became extremely agitated and attempted to leave the room. When security stopped her from leaving the plaintiff became combative — screaming, kicking, striking and attempting to bite security staff or hospital personnel. The plaintiff was placed in handcuffs, moved to a stretcher and then the handcuffs were placed in soft hospital restraints. While she was restrained, a security officer cut her pants from the cuff to the groin on each leg.
In the interim, at plaintiff's request, Dr. Bodden had spoken with the plaintiff's treating physicians. Dr. Bodden entered the examining room and spoke with the plaintiff. He shortly ordered her restraints removed. The plaintiff had been in the restraints for approximately thirty-five minutes. Dr. Bodden examined the plaintiff's abdomen and determined that there were only superficial abrasions that did not require any suturing. Dr. Bodden then participated in another call to the plaintiff's treating physicians and the plaintiff participated in the call. After further review Dr. Bodden prescribed a medication for the plaintiff and discharged her to her home. Dr. Bodden did not issue a PEC. The entire evaluation procedure took one hour and forty minutes.
Mr. Thomas Mendillo is employed by the defendant as head of security. In 2000 he was an account manager for Securitas which provided contracted security services for the defendant. In 2002 he had become an employee of the hospital and supervised the provision of security services that the hospital now contracted for with Murphy Security. He described the training that the security officers received for dealing with combative or uncooperative patients. Security officers were trained to make efforts to de-escalate the situation to use verbal commands before proceeding to the forcible imposition of restraints. Mr. Mendillo acknowledged that when restraining a patient there should always be medical personnel in the immediate vicinity.
Law — March 5, 2002 Incident
The fourth count of the complaint alleges the defendant's conduct when restraining the plaintiff constituted an assault and battery of her person. The court references its discussion of the law of assault and battery as it relates to the earlier incident. The plaintiff must establish that the defendant or its servants intended to cause harm to the plaintiff. In evaluating the defendants intent in this situation it is necessary to consider not only Gen. Stat. 17a-502(a) but also Gen. Stat. 17a-503(a). Gen. Stat 17a-503(a) provides "Any police officer who has reasonable cause to believe that a person has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, and in need of immediate care and treatment, may take such person into custody and take or cause such person to be taken to a general hospital for emergency examination under this section . . ."
The fifth count of the complaint alleges the negligent infliction of emotional distress. To prevail on this claim, the plaintiff must show that: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
"This . . . test essentially requires that the fear or distress experienced by the plaintiff be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendant's conduct, the defendant should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore properly would be held liable. Conversely if the [distress] were unreasonable in light of the defendant's conduct, the defendant would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005).
The Sixth Count of the plaintiff's revised complaint alleges that the defendant was negligent in the manner that it treated the plaintiff on March 5, 2002. In order to establish liability the plaintiff must prove that the defendant owed her a duty of care, that it breached the duty of care, that the breach of the duty of care proximately caused her injury and that in fact she was injured.
The plaintiff asserts that the defendant failed to follow recognized and accepted standards for the restraint of psychiatric patients in that it failed to train its employees in acceptable restraint procedures, failed to properly and adequately supervise its employees in using acceptable restraint procedures and that it permitted untrained security guards to control the management of psychiatric patients.
Analysis
With regard to the Fourth Count assault claim, the plaintiff admits that she was upset at her partner had scratched herself with a pin or paperclip and made statements to the effect that she was going to or might jump in front of a car. The court finds that the police had probable cause to take the plaintiff into custody and to take her to the defendant's Emergency Room for evaluation. There is a strong public policy that police take suicidal statements and gestures seriously. The police have been given the statutory authority to take a person, who has not committed a crime, into custody and to transport that person to a medical facility for an appropriate mental examination.
When the plaintiff was presented to the defendant's Emergency Room by the police with the request for a PEER, the defendant was required to perform an evaluation and examination. The purpose of the examination as defined by Gen. Stat. 17a-502(a) was to determine whether the person "has psychiatric disabilities and is dangerous to himself or others or gravely disabled and is in need of immediate care and treatment in a hospital for psychiatric disabilities." The defendant established certain procedures to discharge its statutory responsibilities. If the plaintiff had complied with the defendant's repeated requests to change into a hospital gown it is likely that she never would have been restrained and would have been released in relatively short order. The evidence establishes that the defendant's employees, servants or agents were intent on carrying out the HSR policy to allow the examination of the plaintiff in an environment that was safe for the plaintiff and the defendant's staff rather than intending to injure or assault the plaintiff. There were several attempts to get the plaintiff to comply with the hospital policy. The plaintiff refused to comply. Once the evaluation was completed the plaintiff was treated with medications and discharged to home. It is understandable that the assessment of whether an individual is dangerous to herself or others or whether an individual is in need of immediate care may take some time and may require the individual to allow time for the assessment to be performed. The plaintiff has not met her burden of proof with regard to fourth count.
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With regard to the Fifth Count, the issue presented is whether the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress. The plaintiff was experiencing a degree of emotional distress when she made gestures to injure herself and threatened to jump in front of a car. The defendant was obligated by statute to determine if the plaintiff was in such distress that involuntary hospitalization as authorized by Gen. Stat. 17a-502(a) was required.
It is an unfortunate symptom of the plaintiff's chronic illness that she makes dramatic self-injurious statements and gestures when she is emotionally distressed. These gestures may be initially reasonably interpreted to form the conclusion that the plaintiff is a danger to herself and set in motion the steps that occurred in this instance. The police properly requested a PEER and the defendant necessarily took steps to evaluate the situation in a professional manner. These steps taken by the police and the defendant in turn trigger another unfortunate symptom of the plaintiff's illness — her tendency to decompensate in a hospital setting. Her decompensation when confronted with the hospital policy unfortunately escalated rather than de-escalated the situation.
The defendant's policy of requiring psychiatric patients presented on a police emergency evaluation certificate to remove their clothes and don hospital gowns are reasonable. The goal of the policy was to protect the patient and staff. The defendant was taking steps to allow for an expert medical evaluation of the plaintiff's mental status and whether she was at risk for committing for further injury to herself.
The plaintiff has not presented any expert evidence to question the defendant's conduct or procedures on March 5, 2002. The defendant's conduct did not create an unreasonable risk of causing the plaintiff emotional distress. In light of this conclusion the court does not reach the issues of causation raised by the defendant. The plaintiff has not met her burden of proof on the fifth count.
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The first step in the analysis of the plaintiff's claims in the Sixth Count require the court to determine the appropriate standard of care under the circumstances so that the defendant's conduct may be tested against that standard. The defendant was providing professional services to the plaintiff. The plaintiff must provide the expert testimony necessary to establish such a standard of care. See Doe v. Yale Univ., 252 Conn. 641, 686-90 (2000).
The plaintiff supported these claims by her own testimony and by reference to the previously discussed federal regulations issued by the HCFA. The plaintiff identified her treating physicians as experts. At trial, the plaintiff elected not to call her physician as witnesses.
The plaintiff, thus, did not present any expert evidence to establish a standard of care. She did not present expert evidence to support her claim that the defendant violated the above regulations or that it violated a particular standard of care that was owed to a psychiatric patient presented to an emergency room on a PEER. A review of the federal regulations alone is not sufficient to establish the standard of care in this situation. The plaintiff did not offer evidence as to what would be required for the training, supervision or definition of the role of security personnel in an emergency room setting.
In this case the medical professionals were required by statute to conduct an examination of the plaintiff to determine if a PEC was appropriate or if the plaintiff could be treated and released. The plaintiff attempted to escape from the hospital and became extremely combative before the examination and evaluation could be completed. Security personnel were required to assist in creating the conditions that would allow the examination to proceed when the plaintiff refused to comply with hospital procedures.
The defendant was presented with an emergency situation. The plaintiff had not complied with reasonable requests to ensure her safety and the restraints were used only after other measures were ineffective. The plaintiff was seen by a physician promptly after she was restrained.
The court finds that the plaintiff has not met her burden of proof with regard to the duty owed by the defendant. In light of this conclusion the court does not reach the issue of causation of the injuries claimed.
The plaintiff cannot prevail on the sixth count of her complaint.
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Normally the court would end its decision at this point and enter orders rendering a judgment for the defendant after trial. The court however, feels it is appropriate to make certain other observations. The pro se plaintiff was eloquent in the presentation of her claims. Her artwork was accomplished and evocative. The plaintiff's struggle with her illness and disability was and is moving. The plaintiff's willingness to pursue long-term treatment and to continue to contribute in a socially constructive manner is praiseworthy. The court has no doubt that the plaintiff honestly described the events complained as she experienced them. She experienced them as traumatic and harmful to her person and psyche. She articulated the terror she feels that she will not be treated with respect as an individual but rather she is treated with less respect solely because she is a person with chronic psychiatric disabilities.
The court, however, must consider the evidence in this case not only the plaintiff's perspective but also the defendant's perspective before reaching a judgment. In the first case the plaintiff presented to the ER with a deep self-inflicted laceration which might reasonably be deemed a serious suicide attempt. In the second instance the plaintiff was brought to the ER on an involuntary basis because of suicidal statements. In each case, the plaintiff's decompensation because of her fear of hospitals and security guards caused her to act in ways that the defendant reasonably perceived as threatening to her own safety or the safety of others. The defendant took appropriate steps in each situation and in each case released the plaintiff from the restraints and from care in a reasonably short period of time.
The court orders that judgment enter in favor of the defendant plus costs.