Opinion
16-P-737
03-13-2017
Karen UNAKA v. BAYSTATE HEALTH, INC. & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff Karen Unaka appeals the dismissal of her complaint against the defendants Baystate Health, Inc. (Baystate), Behavioral Health Network, Inc. (Behavioral), Blake A. Spirko, Adam M. Mirot, and Malina T. Yotova. She argues that her complaint alleged facts sufficient to avoid dismissal and summary judgment for the defendants, and that her showing of medical malpractice before the tribunal was likewise sufficient to entitle her to a trial on the merits. For the following reasons, we affirm.
The complaint asserted claims of assault and battery, medical malpractice, false imprisonment, defamation, and violation of civil rights pursuant to G. L. c. 12, §§ 11H and 11I, against Baystate and Behavioral. The plaintiff brought claims of false imprisonment, defamation, and civil rights violations against Yotova; claims of assault and battery, medical malpractice, false imprisonment, and civil rights violations against Spirko; and claims of false imprisonment and civil rights violations against Mirot.
The various counts against the defendants were disposed of at different stages. Some of the counts were dismissed by an order on a motion to dismiss. The medical malpractice counts were dismissed following a medical malpractice tribunal proceeding. The remaining counts were dismissed on the allowance of the defendants' motions for summary judgment. We do not distinguish between the various judges who entered the relevant orders and ultimate judgment.
The procedural history and relevant facts are largely undisputed. We view the disputed facts in the light most favorable to the plaintiff, reserving some facts for further discussion. The plaintiff was admitted to Baystate's emergency room and treated for uterine fibroids. After being discharged in the early morning of September 6, 2008, she remained in the hospital waiting area to speak to a social worker. Later that day, Elisa Rivera, a social worker and an employee of Behavioral, commenced an interview with the plaintiff. As a result of that conversation Rivera, in consultation with her supervisor, diagnosed the plaintiff with "Axis I, 296.43, Bipolar I D/O, Recent Manic, Severe, w/o Psychosis." Rivera recommended inpatient admission of the plaintiff to the psychiatric unit.
We review the allowance of a motion to dismiss de novo, accepting as true the facts alleged in the complaint drawing reasonable inferences in the plaintiff's favor. Iannacchino v. Ford Motor Co ., 451 Mass. 623, 636 (2008). We review the allowance of a motion for summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party, to determine whether there is any genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C ., 474 Mass. 382, 395 (2016).
The plaintiff describes Behavioral as "a contractor with Baystate."
An emergency room physician filed an application pursuant to G. L. c. 123, § 12, for involuntary admission of the plaintiff to the psychiatric unit. The application indicated that the plaintiff posed a "[s]ubstantial risk of physical harm to the person himself/herself" and that she was "disorganized, tangential, labile, & disorganized [with] pressured speech."
This emergency room physician is not a party to this case.
Thereafter the plaintiff was examined by Dr. Spirko, another emergency room physician, whereupon the plaintiff indicated that she would not go to the psychiatric unit and became combative. Security personnel attempted to restrain the plaintiff. She has admitted to breaking the grip of the security personnel multiple times "by moving her arms down and away in a wood-chopping motion." Eventually she was placed in a gurney, but continued to resist the restraints. At the request of a nurse, Dr. Spirko ordered sedation. During this process, the plaintiff's request for a lawyer was denied.
The plaintiff eventually signed a consent to a three-day commitment under G. L. c. 123, §§ 10 and 11, although she crossed out the sentence, "I agree to receive treatment at this facility for my mental illness." She was admitted to the psychiatric ward at Baystate on September 6, 2008, at 7:36 p.m.
After admission, Dr. Mirot, a psychiatrist, conducted a physical and psychological evaluation of the plaintiff during which he ordered x-rays to be taken of the plaintiff's arms. The plaintiff was also evaluated by Dr. Yotova, another psychiatrist, who discharged her. The discharge summary diagnosed the plaintiff with "Axis I, Adjustment disorder mixed with disturbance of conduct; and Axis II, Paranoid Personality Disorder."
The plaintiff had complained of pain in her arms and wrists after being restrained.
On appeal, the plaintiff argues that her allegations were sufficient to survive a motion to dismiss. She further claims that her showing of medical malpractice before the tribunal was sufficient to entitle her to a trial on the merits. She submits that the defendants are not shielded from liability by G. L. c. 123, § 22, and that she has sufficiently demonstrated that Baystate was responsible for the acts of hospital personnel and the defendant doctors. We address the counts of the complaint in turn.
Defamation . The plaintiff failed to allege that any information was published by any of the defendants without privilege, a necessary element of defamation. See Phelan v. May Dept. Stores Co ., 443 Mass. 52, 56 (2004). In addition, the judge correctly determined that the diagnosis of which the plaintiff complains was an opinion, and not a statement of fact. The defamation claims were properly dismissed.
"To prevail on a claim of defamation, a plaintiff must establish that the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff's reputation in the community, which either caused economic loss or is actionable without proof of economic loss." White v. Blue Cross & Blue Shield of Mass., Inc ., 442 Mass. 64, 66 (2004).
We find the plaintiff's argument that nonjudicial commitment is defamatory per se unavailing; the cases she relies on note the social consequences and stigma that can follow a person who has been committed to a mental hospital, but do not support the notion that wrongful commitment is defamation. See Commonwealth v. Barboza , 387 Mass. 105, 111 (1982).
Civil rights violations . The plaintiff asserted civil rights violations pursuant to G. L. c. 12, §§ 11H and 11I, inserted by St. 1979, c. 801, § 1, prohibiting interference "with the exercise or enjoyment ... of rights" "by threats, intimidation or coercion." She claims that her admission to the psychiatric ward resulted in her disqualification to possess a firearm under G. L. c. 140, § 129B(1)(iii). However, nothing in the plaintiff's complaint or the record shows that the defendants interfered with the plaintiff's constitutional rights or that the plaintiff had been denied either a firearms identification card or a license to carry a firearm. There is also nothing in the record to support the claim that the plaintiff lost any property interest in the form of employment resulting in a violation of G. L. c. 151B, § 4. These claims were properly dismissed.
Furthermore, the plaintiff did not make a claim pursuant to G. L. c. 151B, § 4, in her complaint.
Medical malpractice . The plaintiff asserted that her offer of proof before the medical tribunal was sufficient. Her argument is unavailing because she did not provide the required expert opinion on the standard of care. See Santos v. Kim , 429 Mass. 130, 133 (1999) (plaintiff must show evidence that doctor's performance did not conform to good medical practice). As she did not provide the requisite bond to proceed with her medical malpractice claims, they were properly dismissed.
Assault and battery . The plaintiff claimed Dr. Spirko committed assault and battery by orally ordering the administration of drugs. When the plaintiff encountered Dr. Spirko, she already was undergoing the G. L. c. 123, § 12, involuntary commitment process, and she admitted to her physical resistance of the commitment process by using a "wood-chopping" motion with her arms against security personnel. The physical and chemical restraints placed on the plaintiff were applied pursuant to her § 12 involuntary admission. Dr. Spirko and Baystate are therefore immune pursuant to G. L. c. 123, § 22, as amended by St. 2000, c. 349, which provides that "[p]hysicians ... shall be immune from civil suits for damages for restraining, transporting, applying for the admission of or admitting any person to a facility ... if the physician ... acts pursuant to this chapter." The plaintiff's assault and battery claims were properly dismissed.
The plaintiff also failed to allege facts sufficient to establish a claim of assault and battery against Behavioral, as there was no claim that Behavioral's employees engaged in any physical contact with the plaintiff.
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False imprisonment . The plaintiff makes no specific argument related to her claims of false imprisonment on appeal. Accordingly we do not address this issue. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). We note in any event that her false imprisonment claims suffer the same deficits as her claims of assault and battery.
Judgment affirmed .