Opinion
LLICV135007428S
02-17-2017
Mary Doe et al. v. State of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Carl J. Schuman, Judge, Superior Court.
The plaintiffs, Mary Doe and her conservator, Jane Doe, have brought this action for damages under the Psychiatric Patients Bill of Rights (bill); General Statutes § § 17a-540 to 17a-550; against the state department of mental health and addiction services (department), the Connecticut Valley Hospital (CVH), and the Whiting Forensic Division of that hospital (Whiting). The court conducted a bench trial on January 31, February 1, and February 3, 2017. This memorandum constitutes the court's decision in the case.
The court will refer to the defendants collectively as the department except when the context requires a different term.
I
The court finds the following facts. Plaintiff Mary Doe, who was referred to at trial as Kim, has a long and, at times, tragic mental health history. Kim was born in 1970. Her biological parents were essentially not present in her early life. Kim was raised by her maternal great aunt. When Kim was approximately eleven or twelve years old, she was raped by a gang of boys. Kim may have been subject to another rape or incident of sexual abuse.
A psychological assessment of Kim accurately reports that Kim's " childhood and adolescence can be characterized as chaotic, unpredictable, and dangerous, often requiring intensive mental health treatment and containment." (Plaintiff's Exhibit (Pl. Ex.) F, p. 4.) At age twelve, Kim punched a male student and attacked two teenage girls with a butcher knife, stabbing one of the girls severely in the thigh. She was then admitted to a children's hospital on a physician's emergency certificate. At age seventeen, Kim received a diagnosis of schizophrenia, paranoid type.
Kim's first admission to CVH occurred in 1989 at age nineteen after Kim attacked family members with forks and refused to take medications. Over the next twenty years, there were some 79 reported assaults by Kim. Some of these assaults were very serious, including an attempt to slash a police officer with a knife, an incident of stabbing of a female nurse in the back, and a case of pulling a female correctional officer to the ground by her hair. Of the 65 incidents in which the gender of the victim was known, thirty-five involved female victims and thirty involved males. Many assaults involved dangerous instruments likely to stab or cut the victim such as knives, plastic utensils, a broken CD, and broken radio antennae. Kim often secreted items, such as staff pens, bed springs, and glass perfume bottles, that could serve as weapons. Kim was arrested numerous times, particularly when she was younger, and then examined and treated for lack of competency to stand trial.
Kim has a long adult history of living in institutions. Kim was institutionalized at Whiting several times before the time period of this case, which begins in April 2010. Prior to the current period, Kim last lived in the community in 1992. While institutionalized prior to the current period, Kim exhibited difficult behaviors such as paranoid delusions, resistance to taking medications, poor hygiene and lack of showering, making crude comments and accusations about sex, urinating in common areas, throwing liquids and other items, hoarding of items, and, at least at one point, expressing a suicidal intent.
In 2007, Kim's cousin India, who is identified as Jane Doe in the complaint, became Kim's conservator. A probate court involuntarily committed Kim in 2008. See General Statutes § § 17a-495 et seq. Kim resided in Unit 6 of Whiting from December 24, 2008 to January 29, 2011. Her admission diagnosis included schizophrenia, paranoid type, post-traumatic stress disorder, borderline intellectual functioning, type two diabetes, seizure disorder, and obesity.
The court refrains from using the last name of Kim and India in this decision in order to protect their privacy.
Beginning January 30, 2011, Kim lived in India's home in Torrington with supervision from the staff of Community Systems, Inc. (CSI). When that placement failed on or about April 5, 2011, after Kim assaulted her cousin's husband and two CSI staff members, Kim was briefly admitted to the psychiatry unit at the University of Connecticut Health Center. She then transferred to Unit 6 at Whiting, on an involuntary commitment by the probate court. Kim remained in Unit 6 from April 6, 2011 to May 18, 2012. At that point, Whiting discharged Kim to a placement at a home in Litchfield supervised by the Center for Human Development (CHD). After approximately four years, Kim returned to Whiting, where she currently resides.
Whiting is the only forensic psychiatric hospital in Connecticut. It has somewhere between 91 and 110 beds. Unit 6 is a maximum security unit with approximately eight beds, although on occasion the unit has housed up to twelve persons. While Kim resided there from 2010-12, Kim was the only female. Approximately five of the male residents of Unit 6 had been found not guilty of crimes, including murder, by reason of insanity and were under the jurisdiction of the psychiatric security review board. See General Statutes § § 17a-580 et seq. Other patients were convicted prisoners, persons found not competent to stand trial, or civil committees like Kim.
The court makes additional factual findings in the subsequent sections of this decision.
II
The amended complaint contains three counts. The first count addresses the period from April 25, 2010 to January 29, 2011 and alleges that the defendants' actions caused the " dehumanization and degradation" of the plaintiff in violation of § 17a-542. Count two makes the same allegation for the period from April 6, 2011 to May 18, 2012. Count three alleges a violation of § 17a-544(b), which provides that " [m]edication shall not be used as a substitute for an habilitation program." The amended complaint originally sought compensatory and punitive damages. As clarified by the plaintiffs at closing argument after trial, the amended complaint raises four claims: 1) Kim's placement in an otherwise all-male unit violated § 17a-542; 2) Kim did not receive " humane and dignified treatment" in Unit 6 in violation of § 17a-542; 3) Kim did not receive a " specialized treatment plan suited to [her] disorder" in violation of § 17a-542; and 4) the defendants did not comply with § 17a-544(b).
The court, Pickard, J., granted, on statute of limitations grounds, the department's motion to dismiss allegations in the original complaint addressing the period before April 25, 2010. (Dkt. #110.02.)
Section 17a-542 provides: " Every patient treated in any facility for treatment of persons with psychiatric disabilities shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy. Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder. Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge, and (3) planning for appropriate aftercare to the patient upon his discharge."
The court will refer to the time period from April 2010 to May 2012 as the complaint period.
On August 18, 2015, the court, J. Moore, J., denied the department's motion to strike the first two counts and found that they allege a claim upon which the court could grant relief. The court did strike the request for punitive damages. (Dkt. #118.01.) On January 13, 2017, Judge Moore denied the department's motion for summary judgment premised on the ground that the plaintiffs did not have an expert witness. (Dkt. #131.10.) Judge Moore left the decision concerning the necessity of expert testimony to the trial judge.
III
In Mahoney v. Lensink, 213 Conn. 548, 569 A.2d 518 (1990), our Supreme Court held that the predecessor to § 17a-550 abrogated the state's sovereign immunity and created a private right of action for damages against the state. Id., 555-62. The Court observed that " [b]ecause the patients' bill of rights is remedial in nature, its provisions should be liberally construed in favor of the class sought to be benefitted." Id., 556. The Court added that: " [i]n enacting § 17-206c [now § 17a-542], the legislature created a statutory cause of action that established a new tort liability, unknown to the common law, and therefore independent of common law negligence"; id., 563; and that " [t]he standard for determining whether the provisions of § 17-206c have been violated thus cannot depend on the outcome of treatment." Id., 566. The Court observed that " [i]n its adoption of a statutory right to humane and dignified treatment, the legislature intended to afford patients a meaningful right to treatment, consistent with the requirements of good medical practice." Id., 565. In summarizing, the Court stated: " [t]he plaintiff must allege and prove that the hospital failed initially to provide, or thereafter appropriately to monitor, an individualized treatment suitable to [the plaintiff's] psychiatric circumstances. In assessing whether the plaintiff has met his burden of proof, the trier of fact must inquire not whether the hospital has made the best decision possible but rather whether its treatment plan was permissible and reasonable in view of the relevant information available and within a broad range of discretion . . . The issue, under § 17-206c, is whether the hospital made good faith efforts to improve the patient's mental health and not whether it succeeded in fulfillment of this goal." (Citations omitted; footnotes omitted.) Id., 566-67.
At the time, the bill encompassed sections 17-206b to 17-206k of the General Statutes. It has since been renumbered. Section 17a-550 now provides: " Any person aggrieved by a violation of sections 17a-540 to 17a-549, inclusive, may petition the superior court within whose jurisdiction the person is or resides for appropriate relief, including temporary and permanent injunctions, or may bring a civil action for damages."
IV
A
The court now addresses the plaintiffs' first claim that it was a per se violation of the bill for the department to assign Kim to Unit 6 given that she was the only female patient in the unit. The plaintiffs argue that Kim's childhood history of having been raped by a gang of boys as well as her history of acting out sexually made it inhumane to put her in an otherwise all male ward. Aggravating matters, according to the plaintiffs, was the fact that several of the male patients on the ward had been found not guilty by reason of insanity on the charge of murder.
The plaintiff did not prove her allegation that several male patients had received insanity acquittals on the charge of sexual assault.
Resolving this claim requires the court to address the issue of expert testimony left open in the summary judgment decision. Although the plaintiffs called a psychologist, Alys Hayden, to testify as a fact witness, the plaintiffs did not present a person to testify in an expert capacity on what constitutes humane and dignified treatment in this setting. The court, however, does not hold that an expert is always necessary. Rather, this field would seem to resemble medical malpractice in which expert testimony is not necessary when the medical condition in question is " obvious or common in everyday life" or " where the professional negligence is so gross as to be clear even to a lay person." (Internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249, 842 A.2d 1100 (2004). Under the bill, there may well be cases in which the lack of humane and dignified treatment is obvious to the lay jury or judge. Such cases might involve physical or sexual abuse by the staff, unnecessary punishment, deprivation of necessities, or discrimination on the ground of race, gender, or any other prohibited ground.
But those grounds do not exist here. Instead, this case is one in which there are, at the very least, strong arguments why placement of Kim in Unit 6 did not abridge the standard of humane and dignified treatment. First, prior to each placement, a risk management committee generally consisting of a psychiatrist, a psychologist, a social worker, and other staff made a clinical decision concerning the best placement of a patient. Two Whiting psychiatrists testified at trial that Kim's placement in Unit 6 was appropriate.
In addition, Unit 6 was a highly specialized section for patients such as Kim who had a history of trauma, psychotic episodes, and serious impairment. No other unit at Whiting could provide such treatment. Kim had done well enough in Unit 6 in the past to receive a transfer to a general psychiatry unit, but there she assaulted a female staff member and patient. The staff to patient ratio in Unit 6 was better than that in other units and the staff was about half female. Kim was the only patient in Unit 6 to have a private half-bathroom. When Kim took a shower, the staff took special precautions to insure her privacy.
Kim had a history of acting out and even assaulting other women; in Unit 6 the male patients tended to be afraid of her and stayed away from her. Kim did socialize with female patients from other units when she went to common areas such as the courtyard. Kim's social worker testified credibly that he does not remember either Kim or India expressing concerns about the gender ratio in Unit 6. In sum, a psychiatrist and the medical director at Whiting at the time, Charles Dike, wrote that Kim's placement on Unit 6 was a " clinical decision made due to the fact that [she] was assaultive with and to other female patients. Her placement in Unit 6[ ] was made in an effort to foster her recovery and insure her safety and the safety of other patients." (Pl. Ex. G.)
As stated, the plaintiff presented no expert witness to counter this evidence. Even a 2010 psychological report that the plaintiff did offer does not recommend transfer of Kim out of Unit 6. (Pl. Ex. F.) The plaintiff did not offer any alternative plan that would have insured that Kim would have been in a unit with more females and that she would have been safe. In the absence of such evidence, the court cannot say that placement of Kim in Unit 6 deprived her of humane and dignified treatment.
B
The plaintiffs additionally argue that Kim's treatment in Unit 6 was not humane and dignified. The plaintiffs focus on the fact that Kim did not have privacy for hygiene and other needs, that she suffered from being on an otherwise all-male ward, and that she was subject to strip searches.
The court credits evidence adduced by the plaintiffs that, particularly at the beginning of Kim's two stays at Whiting during the complaint period, Kim did not take a shower for at least a week at a time and appeared disheveled. In addition, Kim would dress in multiple layers of clothes including a heavy jacket, perhaps in an effort to conceal her femininity, and she would stuff paper in her ears, apparently to keep out the noise from the unit. Kim often made sexually-oriented remarks, sometimes inviting the staff to engage in sexual acts with her, and expressed a fear of men and of being raped.
In evaluating these claims, the court must bear in mind Kim's medical condition. Dr. Dike testified credibly that Kim fell within the one-third of psychosis patients who are resistant to treatment. According to Dike, Kim's medication, which she was reluctant to take, could take the edge off her symptoms but she remained delusional. Dike wrote that Kim has " a delusional preoccupation with being raped and murdered regardless of her setting. [Kim] suffers from this delusion both in the community and while inpatient. Her placement in Unit 6 did not cause this delusion. This delusion is a symptom of her schizophrenia and complicates the sexual trauma she experienced earlier in her life." (Pl. Ex. G.) Dike added that Kim also refused to shower in other units at CVH. Another staff psychiatrist, Michael Tress, testified that Kim was " grossly psychotic, " " long-term treatment resistant, " and the second most dangerous and one of the most challenging patients in his thirty-year career.
The staff at Whiting truly cared for Kim and tried their best to accommodate her needs. At first, their primary concern was admittedly not hygiene but rather Kim's safety and the safety of the staff and other patients. Although it may have proved difficult to free Kim completely of her fear for her safety, fortunately there was not one incident of violence against her during the complaint period. Further, with regard to hygiene, the staff provided her the only room in the unit with a half-bathroom, offered her privacy when taking a shower in the unit facility, and even bought her special toilet articles to entice her to clean herself. There was noise on the unit, but that noise is perhaps endemic to a maximum security unit in a psychiatric hospital. The staff tried to engage Kim in activities outside the unit such as walking in the courtyard or going to the gym. There Kim could socialize with other female patients. Kim's behavior and appearance improved towards the end of her stays at Whiting. That outcome is at least partly the result of her treatment.
The court does not credit the allegation and the minimal evidence that the staff told Kim to bathe in her sink--or take a " bird bath" --in lieu of a shower.
In any case, the court must bear in mind that " [t]he standard for determining whether the provisions of § 17-206c have been violated thus cannot depend on the outcome of treatment." Mahoney v. Lensink, supra, 213 Conn. 566. Rather, " [t]he issue, under § 17-206c, is whether the hospital made good faith efforts to improve the patient's mental health and not whether it succeeded in fulfillment of this goal." Id., 566-67. Measured by that standard, the defendants did not violate the bill. Indeed, the court did not find a single instance of bad faith on the part of the defendants.
As to the strip search claim, it is true that, over the course of the complaint period, Kim was strip searched on two occasions--once when she left Whiting to go to a café and a second time when she made a home visit. The court credits India's testimony that the one search she witnessed was a traumatic experience for Kim.
The court does not, however, credit the evidence and allegation that Kim received a body cavity search.
While it is hard to describe any strip search in itself as humane and dignified, strip searches were a necessary part of Kim's institutionalization, which overall satisfied that standard. First, strip searches were a matter of Whiting policy for any patient who left the institutional grounds unaccompanied by security personnel. There was no discriminatory treatment of Kim in that regard. If anything, Kim received more favorable treatment than others in that on one occasion agency police accompanied her to the hairdresser and thus obviated the need for a strip search.
Strip searches are not unknown in our law. General Statutes § § 54-33k and 54-33 l set out the procedure for strip searches by law enforcement. Under the statute, " [n]o person arrested for a motor vehicle violation or a misdemeanor shall be strip searched unless there is reasonable belief that the individual is concealing a weapon, a controlled substance or contraband." General Statutes § 54-33 l (a). Further, " [a]ll strip searches shall be performed by a person of the same sex as the arrested person and on premises where the search cannot be observed by persons not physically conducting the search or not absolutely necessary to conduct the search." General Statutes § 54-33 l (c). Section 54-33 l (d)(2) requires law enforcement to " prepare a report of the strip search." The latter requirement would be a good practice for Whiting to adopt in order to insure propriety and accountability.
Moreover, Kim had a prior history of secreting sharp items--on one occasion attempting to bring one into the institution--and of using dangerous items in assaultive attacks. Thus, a strip search had a particular justification in Kim's case. Finally, the evidence suggested that female officers conducted the strip searches of Kim and that no improper conduct by them occurred during those searches. Thus, the court cannot say that Whiting's strip search policy or its application to Kim contributed to a lack of humane and dignified treatment.
On the contrary, during the strip search on July 13, 2010, Kim " bit a female officer who found on her a plastic spoon which she brought with her from [the café .]" (Def. Ex. 2.)
C
The plaintiffs claimed at oral argument that the department did not fulfill the bill's guarantee concerning a treatment plan. As noted, the bill provides: " Each patient shall be treated in accordance with a specialized treatment plan suited to his disorder. Such treatment plan shall include a discharge plan which shall include, but not be limited to, (1) reasonable notice to the patient of his impending discharge, (2) active participation by the patient in planning for his discharge, and (3) planning for appropriate aftercare to the patient upon his discharge." General Statutes § 17a-542.
The department introduced the April 16, 2012 treatment plan for Kim. The eight-page plan satisfies the statutory mandate by including extensive discussion concerning Kim's current status, her psychiatric and medical diagnosis, and the plan to discharge her to a residential setting supervised by CVH. The plan is signed by the patient--in this case, apparently by India--who certifies that she has been involved in treatment planning. Among the findings in the plan are the following: " [Kim's] personal hygiene continued to improve, as she was asking to take showers more often than before." " The patient has not required involuntary medications for three months." " Kim also enjoys animals and participating in arts and crafts-especially decorating the unit." (Defendants' Exhibit (Def. Ex.) 1.) The plan specifically mentions that " Kim also has a trauma history which may be re-activated in the setting." The plan also contains a section entitled " Objective with Related Services" that lists a schedule, applicable while Kim remained in Whiting, for regular supportive psychotherapy, medication management, and discharge planning.
The testimony independently established India's regular involvement in treatment planning.
The precise nature of the plaintiffs' claim concerning the treatment plan is unclear. The complaint makes no allegations about the treatment plan. The plaintiffs appear to argue now that the plan was not suitable to Kim's needs and does not address treatment. Part of the response to this argument is that the parties introduced only a treatment plan written just prior to Kim's May 18, 2012 discharge, at which point Kim had obviously improved significantly. Although the testimony established that the department team met and updated the plan every month, the plaintiffs, who had the burden of proof, did not introduce any other treatment plan. Thus, to that extent, the plaintiffs did not provide the court with the necessary evidence to evaluate their claim.
The department, however, introduced the Admission Psychiatric Evaluation relating to Kim's April 5, 2011 readmission to Whiting. (Def. Ex. 6.) This thirteen-page report contains detailed findings concerning Kim's psychiatric history, family history, current medical conditions, current medications, mental status examination, admission diagnosis, and initial plan of care. The initial plan for Kim is identified as " discharge back." The department also introduced numerous other multi-page reviews, summaries, and assessments that detailed Kim's history, current status, and discharge plan.
In any case, as the facts recited above demonstrate, the April 2012 plan does not constitute merely a general mission statement. Rather, it is one clearly tailored to Kim's case, mentioning matters such as her hygiene, activities, and discharge planning. Further, it does to some extent address treatment such as psychotherapy and medication management. Although the plaintiffs might quarrel with the level, nature, or description of that treatment, the plaintiffs must bear in mind that " [i]n assessing whether the [plaintiffs have] met [their] burden of proof, the trier of fact must inquire not whether the hospital has made the best decision possible but rather whether its treatment plan was permissible and reasonable in view of the relevant information available and within a broad range of discretion . . ." Mahoney v. Lensink, supra, 213 Conn. 566-67. The April 2012 treatment plan challenged by the plaintiffs, which documented Kim's improvement and therefore pointed to the laudable goal of discharge, was clearly within the department's discretion. It thus met the statutory standard.
D
The plaintiffs' final claim is that the department did not comply with the mandate of § 17a-544(b), which provides that " [m]edication shall not be used as a substitute for an habilitation program." The court finds no merit in this claim.
In this case, medication was a supplement to, rather than a substitute for, habilitation. It is likely that, at the beginning of each of the two periods of institutionalization, the staff may have focused more on medication. According to Dr. Dike, Kim's medication was essential to minimize " psychiatric decompensation and . . . assaultive behavior." (Pl. Ex. G.) A psychological report admitted by the plaintiffs similarly stated: " Despite [Kim's] difficulties accepting the need for medications, her paranoid ideation related to medicines, and her increase in assaultive behavior around medication times, history has shown that without psychotropic medications, [Kim] becomes more paranoid and in turn, at a higher risk to assault others." (Pl. Ex. F.) Plaintiffs' witness and psychologist Alys Hayden confirmed that Kim resisted taking her medication, even after discharge. Occasionally, when Kim refused medication, the Whiting treatment team had to obtain an order from probate court for involuntary medication administration. India generally consented to these orders. Thus, there was broad consensus that the initial emphasis on medication made sense.
However, treatment and habilitation were always part of the plan and became more prominent as Kim's compliance with her medication regime improved over time. The testimony of department social workers established that Kim participated in pet therapy, gymnasium activities, arts and crafts, fingernail painting, walks in the courtyard, several off-campus visits, holiday decorations, conversation with staff, and some group services. As mentioned, the treatment plan in evidence includes a section describing therapeutic services. Thus, while medication was necessary to stabilize Kim, it was not a substitute for treatment and habilitation.
The court also recognizes the exemplary and selfless affection, care, and devotion provided to Kim by India.
The court accordingly rejects the plaintiffs' fourth claim.
The court finds as a factual matter that the plaintiffs received services from the department from 1989 to 2016 that have a value of $6, 416, 255.41. In view of the conclusion reached in this decision, there is no need to address the legal question of whether the defendants are entitled to a set off in that amount or any other amount. The parties need not submit briefs on this issue.
V
Judgment shall enter for the defendants on the complaint.
It is so ordered.
Although Mahoney concerned a patient admitted to a state mental hospital voluntarily; id., 555; the department does not dispute that Mahoney applies to a patient like the plaintiff committed to a state institution involuntarily.