GRETCHEN LEININGER vs. FRANKLIN MEDICAL CENTER & others. [Note 1]

HENNESSEY, C.J. The plaintiff, Gretchen Leininger, seeks damages from the defendants, the Franklin Medical Center, the director of the center's psychiatric unit, Dr. Sanford Bloomberg, and a staff psychiatrist, Dr. Amelia Stevens, based on allegations that the defendants committed her to a mental health facility illegally because they failed to follow the requirements of the civil commitment statute, G. L. c. 123, Section 12 (1986 ed.). [Note 2] The plaintiff asserts claims for violation of her civil

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rights under G. L. c. 12, Section 111, for false imprisonment, and for intentional infliction of emotional distress. A medical malpractice tribunal, convened under G. L. c. 231, Section 60B (1986 ed.), [Note 3] found that the evidence the plaintiff presented was not sufficient to raise a legitimate question of liability appropriate for judicial inquiry. The plaintiff did not post a bond, and now appeals from the Superior Court's judgment of dismissal. We transferred the case here on our own motion, and conclude that it was error to refer the complaint to the tribunal, and to dismiss the complaint.

The plaintiff alleges in her complaint that in November, 1984, she went to the emergency room at the Franklin Medical Center to consult with her therapist and the psychiatric staff concerning the possibility of a short voluntary admission to the center's psychiatric facility. She was interviewed by a staff social worker. The plaintiff later was informed that she was to be involuntarily committed to the Northampton State Hospital for up to ten days. The plaintiff was strapped in a stretcher, placed in an ambulance, and transported to the Northampton State Hospital. Approximately an hour after her arrival, the plaintiff was taken from the hospital to the emergency services facility at the Franklin/Hampshire Community Mental Health Center in Northampton. She was kept overnight at this facility,

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and slept on a sofa in the office area. The next morning, the plaintiff was informed that her confinement had been a `mistake," and that she was free to leave. It is undisputed that Dr. Stevens, who signed the order to hospitalize the plaintiff at Northampton State Hospital, failed to examine the plaintiff. It is also undisputed that the plaintiff never refused to be examined.

After filing an answer to the plaintiff's complaint, the defendants moved to strike the ad damnum clauses of the complaint and to refer the matter to a medical malpractice tribunal pursuant to G. L. c. 231, Section 60B. These motions were allowed, and a single justice of the Appeals Court denied the plaintiff's petition for interlocutory review of these decisions.

At the hearing before the medical malpractice tribunal, the plaintiff asserted that by committing her involuntarily without following the requirements of the civil commitment statute, Dr. Stevens violated her civil rights, falsely imprisoned her, and inflicted emotional distress. She based her claim against Dr. Bloomberg on an allegation that he established a policy that psychiatrists should examine a patient only at the patient's request. The plaintiff's evidence consisted solely of a report summary from the associate area director of the Department of Mental Health concerning an investigation, conducted pursuant to 104 Code Mass. Regs. Section 24.00 (1986), into the circumstances surrounding her confinement.

On appeal, the plaintiff argues that her complaint should not have been referred to a medical malpractice tribunal and that, even if referral was proper, the proof she proffered was sufficient to raise a legitimate question appropriate for judicial inquiry. We agree that it was error to convene the tribunal, and therefore do not address the sufficiency of the proof.

The function of a medical malpractice tribunal is to separate "malpractice claims into two groups: (1) those appropriate for judicial evaluation; and (2) those involving merely an unfortunate medical result." Champagne v. Massachusetts Nurses Assoc., 403 Mass. 754, 756 (1989). Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 521 (1979). We have discerned a strong legislative intent that the tribunal "should

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evaluate only the medical aspects of a malpractice claim" in performing this function. Quinn, supra at 521. The tribunal procedure, therefore, is appropriate only where there is an "issue of medical `malpractice, error or mistake'" (emphasis in original). Little v. Rosenthal, 376 Mass. 573, 577 (1978), quoting G. L. c. 231, Section 60B. See McMahon v. Glixman, 379 Mass. 60, 67-68 (1979) (whether statute of limitations barred patient's claim not within jurisdiction of tribunal); Quinn, supra (whether doctor and patient entered into express contract beyond competence of tribunal).

Here, the plaintiff does not claim the defendants were negligent or mistaken in terms of their medical judgment or treatment. Instead, she claims that she was harmed by the defendants' failure to comply with the civil commitment statute. Section 12 (a) of c. 123 requires a physician to examine a patient before ordering hospitalization. A physician is excused from this requirement only if the case is an emergency, and the patient refuses to be examined. The defendant Dr. Stevens did not examine the patient before ordering her hospitalized. Even if her failure to examine was justified by the "emergency nature of the case," it is undisputed that there was no "refusal of the [plaintiff] to consent to such examination." G. L. c. 123, Section 12. Failing to comply with the civil commitment statute was not a medical decision. Consequently, an evaluation of this decision is beyond the competence of the medical malpractice tribunal.

We conclude, therefore, that a tribunal should not have screened the plaintiff's complaint. The judgment dismissing the action because of the plaintiff's failure to post a bond is to be vacated, and the case remanded to the Superior Court for further proceedings therein.

So ordered.