Dean v. Bowling Green-Brandywine

225 A.3d 859

Melissa DEAN, Individually and as Co-Administrator of the Estate of Andrew E. Johnson and Clifton Edward Johnson, Individually and as Co-Administrator of the Estate of Andrew E. Johnson, Appellants

v.BOWLING GREEN-BRANDYWINE, CRC Health Group, Inc. (and/or) d/b/a CRC Health Group, Mohammad Ali Khan, M.D., Asim Khurshid Rana, M.D., Jennersville Regional Hospital, James Duncklee, M.D., Susan R. Gilbert, Executrix of The Estate of Jennifer M. Plumb M.D., And Southern Chester County Emergency Room Associates, P.C., Appellees

No. 26 MAP 2019

Supreme Court of Pennsylvania.

Argued: September 11, 2019

Decided: February 19, 2020

Frank P. Murphy, Esq., Murphy & Dengler, Pennsylvania Association For Justice, Amicus Curiae.

Angela Awuraakua Larko Odjidja Boateng, Esq., Pennsylvania Medical Society, The American Medical Association, Amicus Curiae.

Anthony Michael Brichta, Esq., Patrick S. Mintzer, Esq., Buckley, Brion, McGuire & Morris, L.L.P., Melissa Dean, Individually, and as Co-Administrator of the Estate of Andrew E. Johnson et al, etc., Appellant.

Sarah Mills Baker, Esq., Ava Marion Plakins, Esq., Bonner Kiernan Trebach & Crociata, LLP, Mohammad Ali Khan, M.D., Appellee.

Carl D. Buchholz III, Esq., Daniel Jason Rucket, Esq., Angela Marie Heim, Esq., Rawle & Henderson, LLP, Bowling Green - Brandywine and CRC Health Group, Inc., Appellee.

Mark John Hermanovich, Esq., Gary M. Samms, Esq., Obermayer, Rebmann, Maxwell & Hippel, LLP, Jennifer M. Plumb, M.D., Sourhern Chester County Emergency Rioom Associates, P.C., Appellee.

Michael E. McGilvery, Esq., Young & McGilvery, P.C., James Duncklee, M.D., Appelle.

Suzanne Marie Utke, Esq., Weber Gallagher Simpson Stapleton Fires & Newby LLC, Asim Khurshid Rana, M.D., Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

In this discretionary appeal, we consider the scope and application of the qualified immunity provided under Section 114 of the Mental Health Procedures Act (MHPA), 50 P.S. §§ 7101 - 7503. We conclude the Superior Court erred in affirming entry of a compulsory nonsuit and hold immunity does not apply under circumstances where: (1) the patient was admitted for and primarily received drug detoxification treatment; and (2) the patient did not receive treatment to facilitate recovery from a mental illness. Consequently, we reverse and remand for further proceedings.

I. Background

On November 20, 2012, twenty-three year-old Andrew Johnson (Andrew) voluntarily admitted himself to Bowling Green-Brandywine Addiction Treatment Center (Brandywine). Andrew sought drug rehabilitation treatment for his addiction to opiates (OxyContin ) and benzodiazepines (Xanax ), which were first prescribed to him two years earlier for pain and anxiety related to back injuries arising from an ATV accident. He was accompanied by his mother, appellant Melissa Dean, and reported his health history to Brandywine staff. Andrew's self-report was reflected in the "Mental Health History" section of a nursing assessment form as "Bipolar [and] ADHD" diagnoses from when he was a child. See Nursing Assessment at 4 and Rana Evaluation, November 30, 2012 at 1. At the same time, Andrew reported he was not currently receiving mental health treatment, was not under the care of a psychiatrist, and had never been prescribed any medications to treat any mental health issues. See Nursing Assessment at 4. The assessment form listed the reason for Andrew's admission as "To get off the pills." Id. at 1.

The next day, November 21, 2012, appellee Mohammad Ali Khan, M.D., a physician at Brandywine, took Andrew's medical history and performed a physical exam. Khan noted Andrew stated he previously had received diagnoses of "Bipolar and ADHD," but Khan recorded these diagnoses as "self-reported" and his indicated plan for treatment was "Benzo Detox Protocol [and] Methadone Taper." Medical History and Physical Examination. Khan then placed Andrew on Brandywine's "Alcohol/Benzodiazepine Detoxification Protocol." Detoxification Protocol. For purposes of detoxification, Khan placed Andrew on a methadone taper for "complete withdrawal from all opioid/opiate medications." Consent to Treatment with Methadone. Andrew also underwent a psychosocial assessment on November 21, 2012, which noted under the Psychiatric/Mental Health section that Andrew was experiencing "anxiety" at the time of his admission. Residential Psychosocial Assessment at 2. On November 25, 2012, four days into his detoxification treatment, Andrew was sent to the emergency room at Jennersville Regional Hospital (Jennersville) for evaluation due to an elevated heart rate and his complaint that he was unable to see or move. Patient Record, dated 11/25. He was examined by emergency room physician James Duncklee, M.D. who diagnosed Andrew with drug withdrawal and returned him to Brandywine. Brandywine's nursing notes reflect Andrew appeared agitated and confused upon his return from Jennersville. Id. On November 26, 2012, less than twelve hours after his discharge back to Brandywine from Jennersville, Andrew was found unresponsive in his room, and was again transferred to Jennersville via ambulance, where it was noted he was making rambling remarks. See Patient Record, dated 11/26/12. Andrew was evaluated by Jennifer Plumb, M.D. who diagnosed him with substance abuse and drug withdrawal, and discharged him back to Brandywine. See id.

On November 27, 2012, Andrew was again evaluated by Khan who noted he was suffering from hallucinations and reported seeing shadows. Khan ordered a psychiatric consultation to be conducted by appellee Asim Khurshid Rana, M.D., a staff psychiatrist at Brandywine. On November 28, 2012, Andrew was unable to stand on his own, and was not eating or drinking, so Rana performed the ordered psychiatric evaluation in Andrew's room. Rana took a history, and noted "[Andrew] told me that he has a long history of ADHD and was under treatment of a psychiatrist from age four and has been tried on Ritalin and Adderall in the past but has not been on any psychiatric medication for many years. He hasn't seen a psychiatrist since age 11." Rana Evaluation dated November 30, 2012 at 1.¹ Rana's evaluation further stated:

PSYCHIATRIC HISTORY : as described previously [Andrew] has been seen by psychiatrist in the past and has been on stimulants in the past. No current psychiatric medications or psychiatric follow ups, no previous psychiatric admissions although there is mention that [Andrew] has history of bipolar illness but it is not clear who diagnosed him with that.

* * *

DIAGNOSES :

Axis 1: Mood Disorder [Not Otherwise Specified]

Anxiety Disorder [Not Otherwise Specified]

Opioid and Benzodiazepine Dependence

[Rule Out] Substance Induced Mood and Anxiety Disorder

Id. at 1-2. Rana's diagnoses did not include bipolar disorder or ADHD, and he prescribed the following "treatment plan":

Considering [Andrew's] history of mood disorder and current symptoms of anxiety I will start him on Neurontin 200mg three times a day and adjust the dose as needed to help him both with his mood and anxiety symptoms and chronic back pain. I will continue to follow and adjust medication as needed. Try to obtain old records if possible. We will arrange follow up appointment with psychiatrist for once he leaves here. Re-consult me earlier if needed.

Id. at 3. Brandywine's admission forms and Detox Progress Notes indicate Andrew consistently complained of anxiety. See Detox Progress Notes dated: 11/21/12; 11/22/12; 11/23/12; 11/24/12.

At approximately 8:15 in the evening of November 28, 2012, Andrew's blood pressure was recorded as elevated at 148 over 108 with a heart rate of 109. A short time later his blood pressure had risen to 154 over 115 and his heart rate was 103. Patient Record dated 11/28/12. The nursing staff informed Khan of these elevated vital signs, but Khan declined to examine Andrew, did not issue any new treatment orders, and instructed the nursing staff not to transfer Andrew to the emergency room. See id. The nursing staff again checked Andrew at 10:20 p.m. and noted he was unsteady, had a heart rate of 180 and blood pressure of 145 over 98. See id. Staff administered Clonidine,² but no additional treatment. The nursing staff subsequently checked Andrew every two to three hours and noted he was "resting comfortably." See id. At approximately 7:50 a.m. the next morning, Andrew was found lying on the floor of his room, face down, without a pulse. See id. He was transferred to Jennersville where he was pronounced dead.

Andrew's parents, Melissa Dean and Clifton Edward Johnson, as administrators of Andrew's estate and in their individual capacities (appellants), filed a complaint in the Chester County Court of Common Pleas against appellees Brandywine, Drs. Kahn, Rana, Duncklee, and Plumb, and Jennersville, raising medical malpractice, wrongful death and survival claims.³ Specifically, appellants alleged Andrew died of a cardiac arrhythmia due to the combination of medications prescribed during treatment at Brandywine, and that his death was the result of medical negligence including the failure to properly examine, diagnose, appreciate, and treat his medical condition. Complaint at ¶¶ 41-58.

Khan, Rana and Plumb each filed new matter, asserting the affirmative defense of qualified immunity under the MHPA, which "establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons." 50 P.S. § 7103. Section 114 of the MHPA insulates certain individuals from claims of ordinary negligence arising from treatment under the act:

In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under

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