CINDY SEGAL vs. FIRST PSYCHIATRIC PLANNERS, INC. [Note 1]

DREBEN, J. The issue in this case is whether the plaintiff alleges only medical malpractice claims appropriate for screening by a tribunal or whether she also asserts nonmedical claims which do not require her to post a bond pursuant to G. L. c. 231, § 60B. In her complaint against a physician as well as the operator of Bournewood Hospital (hospital), the plaintiff asserted numerous instances of medical malpractice and also asserted claims of false imprisonment and intentional and negligent infliction of emotional distress by the hospital. [Note 2] After a medical tribunal determined that the evidence presented by the plaintiff was insufficient to raise a legitimate question of liability

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appropriate for judicial inquiry as to both defendants, and that she may pursue her claims only upon filing a bond, she filed an emergency motion in the Superior Court for clarification or reconsideration. In her motion, she argued that her claim for false imprisonment against the hospital was based exclusively on nonmedical grounds and that her claims of intentional and negligent infliction of emotional distress against the hospital were, in large part, based on nonmedical grounds. The judge ruled that the bond requirement applies to all her claims, stating, "Based on the specific fact allegations in the complaint, the court concludes that all of the plaintiff's claims are based on 'malpractice, error or mistake' by a health care provider in the course of providing medical treatment." After the plaintiff failed to post a bond, a judgment entered dismissing her complaint against the hospital. This is an appeal by the plaintiff. We vacate the judgment in part, as some of the plaintiff's claims are not medical and, hence, she was not required to file a bond for judicial consideration of those claims.

"General Laws c. 231, § 60B, inserted by St. 1975, c. 362, § 5, empowers a screening tribunal to appraise '[e]very action for malpractice, error or mistake against a provider of health care.' " Little v. Rosenthal, 376 Mass. 573, 576 (1978). The court interpreted this language to mean that "all treatment-related claims were meant to be referred to a malpractice tribunal." Ibid. Here, not only was the complaint sufficient to afford the hospital fair notice that the plaintiff's claims were not limited to medical malpractice, [Note 3] but also both the hospital and the judge were apprised of additional details of her claims, including the assertion, not specified in her complaint, that the

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hospital violated the requirements of G. L. c. 123, § 11. [Note 4]

Prior to the convening of the medical malpractice tribunal, the hospital filed a motion for summary judgment to dismiss the claims in counts III (false imprisonment), VI (negligent infliction of emotional distress), and VII (intentional infliction of emotional distress). [Note 5] In her opposition to the motion, and again in her motion subsequent to the determination of the tribunal, the plaintiff claimed that, contrary to the requirements of G. L. c. 123, § 11, she was formally admitted into the hospital either without, or at the least before, a psychiatric admission assessment. Her claim of false imprisonment is also based on her assertion that the hospital misled her into believing that she could leave at the time of her choosing and failed to inform her of a three-day notice requirement contained in the application for "conditional voluntary admission" (see note 4, supra). [Note 6]

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In her introduction to her offer of proof to the tribunal, the plaintiff specifically stated that her claims against the defendants "include more than her medical malpractice claims," mentioned her claims of false imprisonment and intentional and negligent infliction of emotional distress, and pointed out that the jurisdiction of the tribunal extends only to the medical aspects of her claims.

In an affidavit, which was part of the offer, the plaintiff, in addition to detailing numerous events that in her view amounted to medical malpractice, set forth the following material relevant to her nonmedical claims. Expanding on the substance of paragraphs 42 and 45 of her complaint, see note 3, supra, she stated that upon her arrival at the hospital on October 1, 2001, a woman, who did not identify herself as a physician, took her into an office where the woman processed the plaintiff's admission. The woman took down the plaintiff's personal and insurance information and asked the plaintiff to sign a document (application), see note 6, supra, which the plaintiff did not read because of her blurred vision. From what she was told by hospital staff on the day of her admission, the plaintiff understood that she would be able to leave the hospital as she chose.

"After completing [her] admission," the woman escorted the plaintiff to an anteroom where her belongings were searched. She was then taken by the woman and a nurse to a small room where the plaintiff was undressed and her clothing was searched. Thereafter, she was taken into the ward, Dodge I, and shown her room and bed. Only after these admission procedures were completed was the plaintiff seen by a woman who took the plaintiff's medical and psychiatric history. The plaintiff does not recall meeting the doctor whose notes appear on the hospital records (Dr. Nguyen) [Note 7] or any other male physician on the day of her admission.

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The plaintiff stated in her affidavit that although she wanted to leave the hospital the morning after her admission, as a result of being misinformed prior to signing the application and later again by not being properly informed of the three-day requirement, she was forced to remain at the hospital for several days.

Because the action was dismissed for failure to file a bond, and not under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), our review of the dismissal is limited to whether the claims dismissed were "medical." "The tribunal procedure . . . is appropriate only where there is an 'issue of medical "malpractice, error or mistake"' (emphasis in original)." Leininger v. Franklin Med. Center, 404 Mass. 245, 248 (1989), quoting from Little, 376 Mass. at 577. In the view of the majority of the panel, the false imprisonment claim -- that the plaintiff was admitted under misleading circumstances and without following the procedures of c. 123, § 11, for proper admission -- does not present an issue of "medical malpractice, error or mistake." [Note 8]

In Leininger, supra at 248, the Supreme Judicial Court held

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that a claim of failure to follow the requirements of G. L. c. 123, § 12 (involuntary commitment), by committing the plaintiff to a mental health facility without an examination was not a medical claim that should have been referred to a medical malpractice tribunal. Failure to comply with the provision of the statute was not a medical decision. Accordingly, the court held that the plaintiff's complaint should not have been screened by a tribunal; the court vacated the judgment dismissing the action because of the plaintiff's failure to post a bond. The Leininger court stated, "We have discerned a strong legislative intent that the tribunal 'should evaluate only the medical aspects of a malpractice claim.' " Id. at 247-248, quoting from Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521 (1979).

The claims of the plaintiff in Leininger, supra at 246, were for violation of her civil rights under G. L. c. 12, § 11I, for false imprisonment, and for intentional infliction of emotional distress. At the hearing before the Leininger tribunal the plaintiff asserted that those claims were established by her involuntary commitment without following the statute. Id. at 247. The false imprisonment and emotional distress claims of the plaintiff in the case at bar are sufficiently similar to the claims in Leininger for us to conclude that they, too, do not present an "issue of medical 'malpractice, error or mistake.' " 404 Mass. at 248, quoting from Little, 376 Mass. at 577. See Garcia v. Psychiatric Insts. of America, Inc., 638 So. 2d 567, 567 (Fla. Dist. Ct. App. 1994) (false imprisonment and battery claims against doctor and hospital governed by tort statute of limitations rather than

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shorter medical malpractice statute of limitations). The plaintiff's nonmedical claims center on the allegation that she was misled as to the terms of her admission and discharge and that she was not assessed until after her admission in violation of the statutory requirement. As in Leininger, she does not, with respect to these claims, urge that the hospital was negligent or mistaken by reason of its medical judgment. Contrast Johnston v. Stein, 29 Mass. App. Ct. 996, 997 (1990) (where the misrepresentation was of a medical nature).

Because the foregoing claims of the plaintiff do not involve the medical aspects of a malpractice claim, the judgment insofar as it dismissed those claims is to be vacated and the case remanded to the Superior Court for further proceedings thereon consistent with this opinion. [Note 9]

So ordered.

MEADE, J. (dissenting). In its decision to partially vacate the dismissal of the complaint, the majority has carved out the plaintiff's counts that alleged false imprisonment and intentional and negligent infliction of emotional distress. In so doing, the majority has resurrected what it describes as nonmedical claims over which the tribunal should not have exercised jurisdiction. In my view, however, the substance of these claims relates to the professional and medical judgment of the hospital, which properly placed them before the tribunal. Because the majority's conclusion condones the plaintiff's use of conjecture and surmise to negate the tribunal's jurisdiction and thereby contravenes the purpose of G. L. c. 231, § 60B, I respectfully dissent.

Standard of review. The majority conducts its analysis based on the allegations in the complaint, an unadjudicated motion for summary judgment, and the plaintiff's offer of proof to the tribunal. The majority states that it is not applying the standard

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under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for dismissal of a complaint, but instead is merely reviewing whether the claims are "medical." See ante at 713. In application, however, what the majority does is very much akin to the rule 12(b)(6) standard. That is, the majority fully indulges the plaintiff's allegations without regard for the proper assessment of the competency of the proof under a jurisdictional analysis. As a result, the majority has relegated the tribunal's jurisdiction to a matter of pleading.

The question of jurisdiction in this context is properly reviewed under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974). This standard is better suited for issues related to the tribunal's jurisdiction because a judge may consider documents and other materials outside the pleadings, see Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 710 (2004); Wooten v. Crayton, 66 Mass. App. Ct. 187, 190 n.6 (2006), such as an offer of proof under G. L. c. 231, § 60B. When the materials submitted present a "factual challenge" to jurisdiction (as opposed to raising the legal sufficiency of uncontested jurisdictional facts), the plaintiff's allegations are given no presumptive weight, and the court must decide the jurisdictional question by resolving the factual disputes between the parties. Callahan, supra at 710-711. See Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 519-520 (1979); Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). Because the plaintiff challenged the tribunal's assertion of jurisdiction, she had the burden to prove the facts that deprived it of that jurisdiction. See Callahan, supra at 710; Hiles v. Episcopal Diocese of Mass., 437 Mass. 505, 515-516 (2002).

In some instances -- like those presented here -- the jurisdictional facts may be inextricably intertwined with the claim itself so that a court may choose to defer resolution of the jurisdictional issue until the matter is heard by the tribunal. [Note Meade-1] See

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Valentin, supra at 363 n.3. [Note Meade-2] As discussed below, the critical facts the plaintiff presents relative to the resolution of the tribunal's jurisdiction are, at best, contradictory and thereby present a dispute.

When the judge determined that the entire complaint was subject to the tribunal's jurisdiction, she did not make subsidiary findings in connection with her ruling. [Note Meade-3] Because there was no evidentiary hearing and the facts related to jurisdiction were presented in documentary form, we are properly situated to analyze the record to determine if the findings implicit in the judge's ruling were supported. See Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981); Rae F. Gill, P.C. v. DiGiovanni, 34 Mass. App. Ct. 498, 505 n.6 (1993). See also Bluhm v. Peresada, 5 Mass. App. Ct. 766, 766 (1977) ( "[b]ecause all the evidence is documentary, we are in as good a position as the probate judge was to decide questions of fact"). Our review of the judge's ultimate legal conclusion on jurisdiction is de novo. Valentin, supra at 365.

Discussion. A medical malpractice tribunal has jurisdiction over actions for "malpractice, error or mistake against a provider of health care." G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. The breadth of this language indicates that the Legislature intended that all "treatment-related" claims be referred to medical malpractice tribunals. Little v. Rosenthal, 376 Mass. 573, 576 (1978). This is also supported by the legislative history of § 60B, which reveals that "the Legislature declined to restrict the tribunal's jurisdiction to 'every action of

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tort or breach of contract.' " Ibid. Instead, it chose language "which evinces an intent that every case involving medical malpractice be appraised by a § 60B screening tribunal. 'There is no apparent exception.' " Ibid., quoting from Austin v. Boston Univ. Hosp., 372 Mass. 654, 660 (1977).

Because the statute does not textually define what constitutes an "action for malpractice, error or mistake," Brodie v. Gardner Pierce Nursing & Rest Home, Inc., 9 Mass. App. Ct. 639, 641 (1980), it is appropriate for us to look at what the Legislature was trying to remedy or address when it was enacted. See Hanlon v. Rollins, 286 Mass. 444, 447 (1934) ("a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated"). "The purpose of § 60B, as stated in the preamble to St. 1975, c. 362, which established the tribunal, was 'to guarantee the continued availability of medical malpractice insurance.' " Brodie, supra. To achieve that end, the statute is designed "to discourage frivolous claims whose defense would tend to increase premium charges for medical malpractice insurance." Ibid., quoting from Austin, supra at 655 n.4.

In addition to the legislative purpose of the tribunal, our cases highlight several factors relevant to whether the complained-of acts fall within a tribunal's purview. These factors include (1) whether medical or professional judgment or competence was exercised, see Santos v. Kim, 429 Mass. 130, 133-134 (1999). See also Leininger v. Franklin Med. Center, 404 Mass. 245, 248 (1989); (2) whether the claim is "treatment-related," even if not a traditional malpractice claim, see Lambley v. Kameny, 43 Mass. App. Ct. 277, 282 (1997), quoting from Little, supra; and (3) whether "the same set of facts supports both" the malpractice and allegedly nonmedical claims, see Little, supra at 577; Lambley, supra at 281 n.8. An examination of these factors (none of which is conclusive), against the legislative backdrop of § 60B, leads to the conclusion that the judge here properly resolved the question of jurisdiction.

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After the tribunal found the plaintiff's evidence insufficient, a Superior Court judge clarified that "all of the plaintiff's claims are based on 'malpractice, error or mistake' by a health care provider in the course of providing medical treatment, and that all of the plaintiff's claims are therefore subject to the statutory malpractice tribunal screening procedure." [Note Meade-4] Arguing otherwise, the plaintiff claims that the hospital falsely imprisoned her by failing to comply with the statutory requirements for voluntary hospitalization under G. L. c. 123, § 11. [Note Meade-5] In particular, she claims that the hospital failed to conduct a medical assessment of her prior to admitting her on a conditional voluntary basis. See G. L. c. 123, § 11 (physician's assessment required before conditional voluntary admission). See also 104 Code Mass. Regs. § 27.06 (2001). As a result, she claims the hospital failed to provide her with adequate information about the terms of her admission and the mechanism to occasion her discharge, i.e., the three-day notice, and thereby prevented the speedier release she desired. This claim, the plaintiff maintains, is outside the tribunal's jurisdiction.

The linchpin of the plaintiff's false imprisonment claim, and the key jurisdictional fact upon which her case relies, is that Dr. Nguyen conducted the plaintiff's medical assessment after she was admitted as a patient. In support of her allegations on this point, the plaintiff's primary source of proof was her own affidavit. In her affidavit, she stated that after her admission application was completed, a woman, who was "either a nurse or a doctor," took her medical and psychiatric history. The plaintiff did not recall meeting Dr. Nguyen.

As discussed more fully below, if the parties had stipulated

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that the plaintiff was admitted prior to an assessment being conducted, then the tribunal would have been without jurisdiction and the plaintiff would have presented a Leininger-type claim that would have lived another day in Superior Court. See Leininger, 404 Mass. at 245-246. However, her bald assertions alone (including the averment that she did not recollect meeting Dr. Nguyen) [Note Meade-6] were entitled to no presumptive weight, see Callahan, 441 Mass. at 711, and did not require the judge, assessing jurisdiction, to conclude that she was "admitted" before her assessment was conducted. Because the plaintiff has no personal knowledge of when her admission was completed, her affidavit on this point is insufficient.

In addition to the plaintiff's affidavit, her offer of proof contained the hospital's progress notes that indicate that the plaintiff was "accepted" at 2:50 P.M., and was waiting in the "day room" for the arrival of the 3:00 P. M. shift for her admission assessment. The next progress note indicates that Dr. Nguyen completed that assessment on the day she entered the hospital. [Note Meade-7]

Therefore, the plaintiff's proof of the critical fact of when the

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assessment occurred is at best contradictory, which results in a dispute as to when the assessment was conducted. Under the rule 12(b)(1) standard, where the plaintiff's allegations carry no presumptive weight, there is no imperative to resolve this dispute in her favor. However, by so doing, the majority credits the plaintiff's unsupported claim that she was admitted prior to the assessment, which is based on nothing more than her conjecture and surmise. [Note Meade-8] Given that posture, the plaintiff has failed to prove the key fact that would deprive the tribunal of jurisdiction. [Note Meade-9] If it were otherwise, any similarly situated plaintiff could merely allege the absence of a timely assessment and avoid the tribunal's screening function altogether. [Note Meade-10]

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From a review of the plaintiff's materials, the following allegations emerge. During part one of the admission process, the hospital mistakenly or erroneously gave the plaintiff faulty information relative to the flexibility of her tenure there. [Note Meade-11] In part two, Dr. Nguyen was required to exercise his medical judgment to determine the propriety of her admission. Specifically, Dr. Nguyen determined that the plaintiff suffered from a mental illness, needed "care and treatment," and that she understood the terms of her admission, including the discharge procedures. See note 7, supra. From there, the plaintiff attributes several mistakes to the hospital, caused by the errors the hospital included in her medical history, that led the hospital to commit her to the wrong type of ward, [Note Meade-12] to misapprehend her thyroid condition, and to overmedicate her.

In essence, the plaintiff claims that the hospital's misinformation and errors, its medication decisions, and Nguyen's substandard care and treatment all led to the plaintiff's prolonged stay. Indeed, the introduction to her complaint specifically alleges that all the harms she suffered came as a result of her "mismanaged care." See DiGiovanni v. Latimer, 390 Mass. 265, 272-273 (1983) (plaintiff's claim was properly screened by

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the tribunal where the issue of damages and the causal connection to the harm suffered presented medical questions). Because we were obliged to look at the substance of the claim rather than the labels attached to it, Lambley, 43 Mass. App. Ct. at 280, I conclude that the plaintiff's false imprisonment claim was treatment-related. See Johnston v. Stein, 29 Mass. App. Ct. 996, 997 (1990) (court looked to the "core" of a claim of wilful misrepresentation to determine it was treatment-related). Buttressing this conclusion, and especially relevant to the jurisdictional inquiry, is that the same core of facts supports both the plaintiff's malpractice claims and her "nonmedical" claims. See Little, 376 Mass. at 577.

The plaintiff's emotional distress claims fare even worse, even if the claims in her complaint are credited as the majority requires. Most telling of the appropriateness of the tribunal's jurisdiction is that her complaint specifically attributes these torts to the hospital's "medical care and treatment." In addition, the allegations that support these claims are virtually identical to those of her malpractice and false imprisonment claims. That is, the plaintiff claims that the same mistakes and errors in the hospital's diagnosis, medication, therapy, and its treatment of her constituted negligent and intentional infliction of emotional distress. In that light, I conclude that these claims were also treatment-related. See Little, supra; Lambley, supra at 281 n.8. [Note Meade-13]

In her effort to push her claims outside the tribunal's jurisdiction, the plaintiff likens her circumstances to those in Leininger, 404 Mass. at 245-246, where the plaintiff sued for false imprisonment and intentional infliction of emotional distress because the mental health facility failed to follow the requirements of the involuntary commitment statute, G. L. c. 123, § 12. In holding that the plaintiff's case should not have been

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screened by the medical malpractice tribunal, the Supreme Judicial Court held that the failure "to comply with the civil commitment statute was not a medical decision." Id. at 248. Critical to that conclusion was the fact that the plaintiff did not claim that the defendants "were negligent or mistaken in terms of their medical judgment or treatment." Ibid. Indeed, at the core of the plaintiff's complaint was the undisputed fact that a doctor failed to conduct a medical examination of her prior to her commitment. Id. at 247.

The instant plaintiff's claims stand on a very different footing. Not only did the plaintiff's offer of proof fail to show that there was no assessment prior to her commitment, the gravamen of her complaint centers on the mistakes in that assessment and the ramifications of the medical decisions that flowed from those mistakes. See DiGiovanni, supra. That is, the plaintiff claims that the hospital did a poor job in carrying out the commitment process and her subsequent care. That claim does not eclipse the fact that in so doing, medical and professional judgment was used to make treatment-related decisions. This sets the plaintiff's claim apart from Leininger. Because the parties in Leininger agreed that no examination took place, the court necessarily found that medical judgment played no role in the unlawful commitment of the plaintiff. Indeed, Leininger does not stand for the proposition that the admission process never involves medical judgment; that question was simply not before the court. By contrast, evaluating the admission decisions and processes in this case required a review of instances of medical judgment, which fell within the tribunal's jurisdiction. Leininger offers the plaintiff no assistance.

The fabric of the plaintiff's claims contains the same common threads of medical judgment related to treatment and care that appear in other cases where the tribunal properly exercised jurisdiction. Compare Little, 376 Mass. at 575- 577 (tribunal properly exercised jurisdiction over a complaint which alleged that medical care violated G. L. c. 93A as an unfair trade practice); Salem Orthopedic Surgeons, Inc., 377 Mass. at 517-518 (an action for breach of contract to produce a medical result was properly screened by tribunal); and Lambley, 43 Mass. App. Ct. at 279-282 (job applicant's defamation and

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interference with advantageous business relations suit against a psychiatrist, who found him unfit for police work, was properly screened by the tribunal), with McMahon v. Glixman, 379 Mass. 60, 67-Link to previous search terms68Link to next search terms (1979) (whether plaintiff's claim was barred by the statute of limitations was not within the tribunal's jurisdiction); Koltin v. Beth Israel Deaconess Med. Center, 62 Mass. App. Ct. 920, 920-921 (2004) (claims of assault and battery, false imprisonment, and intentional infliction of emotional distress, based upon an alleged beating by hospital security guards, were not properly before the tribunal); and Flagg v. Scott, 9 Mass. App. Ct. 811, 812 (1980) (whether the individual defendant was a person for whose conduct the hospital would be responsible was beyond the competence of the tribunal).

The judge properly found the entire complaint to be within the tribunal's jurisdiction. The standard of review, the legislative history of § 60B, and appellate precedent on the matter, together with the factors to be weighed in considering whether jurisdiction exists, all require the conclusion that the plaintiff's claims are treatment-related and were correctly before the tribunal. The majority's decision to the contrary will encourage future plaintiffs to engage in artful pleading designed to avoid the tribunal's function and thwart the statute's purpose. I would affirm the dismissal of the entire complaint.