Kelly on Malpractice

In Vickroy v. Pathways, Inc., 2004 WL 3048972, the plaintiff sued for wrongful involuntary commitment to a mental institution. Paramedics were called to the plaintiff’s home by her roommate. The plaintiff was brought involuntarily to the hospital for evaluation. She was admitted to the emergency room and examined by the physician on duty. She was interviewed by a mental health clinician. That physician then went off duty, and the defendant physician took charge. The defendant physician examined the patient’s chart, reviewed the history taken by the prior physician and the mental health clinician, and then signed a form committing the plaintiff to a mental institution. The form stated that the defendant had examined the plaintiff. This was not true. The plaintiff was examined only by the prior physician, who was no longer on duty. The chart included the results of the prior physical examination of the plaintiff, which noted her bipolar disorder, including all of her physical symptoms. The admission document completed by the paramedic who brought the plaintiff to the emergency room stated that she was “depressed” brought to the hospital after a heated “confrontation.” A form signed by a Pathways clinician showed her as an active Pathways patient taking lithium and other medications. Based on this information, the defendant signed a “Certificate of Need for Emergency Admission Under TENN.CODE ANN. § 33-6-103 to have the plaintiff transferred to Western Mental Health Institute in Bolivar. The form stated: “I, James Forest-Lam, of the County of Dyer, State of Tennessee, certify that I have personally examined Vickroy, Pam on 2/4, 2001.” The form stated that, in his professional opinion, based on the examination and the information provided to him, that the plaintiff “poses an immediate likelihood of serious harm to herself and others because of the mental illness.”

The plaintiff asserted that the defendants were negligent and that she had been deprived of her liberty without just cause. Moreover, she alleged the defendant physician never “personally” examined the her; in other words, he did not make any personal judgment as to her condition and signed a false certification forcing her to be transported to Western State Mental Hospital. The defendant physician moved for summary judgment supported by his own expert affidavit, stating that he had complied with the standard of care. In response to a summary judgment motion, the plaintiff argued that no expert testimony was needed because TENN.CODE ANN. § 33-6-404 established as a matter of law that the standard of care requires the physician who orders a patient committed to a mental institution to have first personally examined the patient. Nonetheless, the trial court granted summary judgment to the defendant physician, classifying the action as medical malpractice and finding that the plaintiff failed to offer competent expert proof.

The legislative expectation is that the involuntary commitment of a patient must be done by a professional who has examined the patient, and not based only on the statements and observations of others. Thus, the Court of Appeals found that the plaintiff’s cause of action was negligence per se. This claim does not require expert testimony because it is not medical malpractice. The court reversed the summary judgment for the claims of negligence and false imprisonment, finding that TENN.CODE ANN. § 33-6-402 requires that a physician or other professional who commits a patient to a mental institution must first personally examine the patient, rather than relying exclusively on medical records or someone else’s examination of the patient.

It is worth remembering that medical malpractice and a few forms of medical negligence are mutually exclusive causes of action. Some statutes clearly define the standard of care. Proving a breach of that standard may not require expert testimony, but retaining an expert is highly recommended. After all, the jury must be convinced that the case is meritorious, and a medical expert(s) will help in that endeavor. Nevertheless, just because you need an expert for medical malpractice does not mean that you need an expert to prosecute medical misconduct that violates a statute.

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