CLERK OF COURT SUPREME CCURT OF OHIO MEMORANDUM OF APPELLEE, MERCY MEDICAL CENTER, IN OPPOSITION TO CLAIMED JURISDICTION.

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1 IN THE SUPREME COURT OF OHIO FRANCIS F. JOHNSON, et al., Appellants, vs. KANUBHAI C. PATEL, M.D., et al., CASE NO On Appeal from the Tuscarawas County Court of Common Pleas, Fifth Appellate District Case No AP Appellees. MEMORANDUM OF APPELLEE, MERCY MEDICAL CENTER, IN OPPOSITION TO CLAIMED JURISDICTION Jill C. McQueen (# ) (Counsel of Record) Alicia M. Wyler (# ) DAY KETTERER LTD Millennium Centre, Suite Market Avenue, North P.O. Box Canton, Ohio amwyler cr,day-ketterer.com Telephone (330) Facsimile (330) Attorneys for Appellee, Mercy Medical Center Robert J. Vecchio, Esq. Anthony J. Vegh, Esq. Robert J. Vecchio Co., L.P.A. 526 Superior Ave., East 720 Leader Building Cleveland, OH Telephone: (216) Facsimile (216) Attorneys for Appellants, Francis F. Johnson, et al. Maryellen C. Spirito, Esq Marble Cliff Office Park Columbus, Ohio Attorney for Appellees, Kanubhai R. Patel, M.D, Suresh A. Patel, M.D., and Behavioral & Psychiatric Consultants, Inc. CLERK OF COURT SUPREME CCURT OF OHIO

2 TABLE OF CONTENTS Pa e s TABLE OF CONTENTS i 1. STATEMENT OF MERCY MEDICAL'S POSITION REGARDING THE ABSENCE OF A SUBSTANTIAL CONSTITUTIONAL QUESTION AND THE ABSENCE OF AN ISSUE OF PUBLIC OR GREAT GENERAL INTEREST H. STATEMENT OF FACTS AND CASE... 2 III. LEGAL ARGUMENT... 5 PROPOSITION OF LAW NO. 1: The Supreme Court May Not Insert Words Into A Statute... 5 PROPOSITION OF LAW NO. 2: Summary Judgment Is Proper When The Evidence, Viewed In A Light Most Favorable To The Non-Moving Party, Fails To Create A Question Of Fact... 8 IV. CONCLUSION...:......:...10 PROOF OF SERVICE...:...10

3 I. STATEMENT OF MERCY MEDICAL'S POSITION REGARDING THE ABSENCE OF A SUBSTANTIAL CONSTITUTIONAL QUESTION AND THE ABSENCE OF AN ISSUE OF PUBLIC OR GREAT GENERAL INTEREST. Appellants urge the exercise of discretionary jurisdiction on appeal, but fail to satisfy the threshold requirements of the Court's Rules. Judgments of the courts of appeals of this state shall serve as the ultimate and final adjudication of all cases except those involving constitutional questions, felony cases, cases originating in the court of appeals, and cases of public or great general interest; except for these special circumstances, a party only has but the appellate review of his cause. Williamson v. Rubick (1960), 171 Ohio St. 253, 168 N.E.2d 876. Appellants do not argue the existence of a constitutional question which requires this Court's review, and, indeed, no such question is presented by this case. Instead, Appellants seek to support this Court's exercise of jurisdiction by arguing that the case below is one of public or great general interest. Appellants fail, however, to establish such public or great general interest, and this Court should therefore decline to exercise its jurisdiction. The dispute arises from the hospitalization of Tristan Johnson in August of The case presents no novel issues, but instead requires the application of well-settled legal principles. The trial court granted summary judgment to Appellees on the grounds that Appellants could not establish a prima facie case of negligence; that Appellees were immune from liability pursuant to Ohio Revised Code and Ohio Revised Code ; and that Tristan Johnson's suicide following his discharge from the hospital was an intervening act and the sole proximate cause of his death. On appeal, the Court of Appeals for the Fifth Appellate District concluded that the trial court did not err in finding Appellees immune as a matter of law pursuant to Ohio Revised Code Having so held, the Court of Appeals declined to address Appellants' remaining assignments of error. 1

4 The decisions of both the trial court and the Court of Appeals for the Fifth Appellate District turned upon established precedent as to the scope of statutory immunity granted by and the application of well-settled summary judgment standards. The exercise of this Court's discretionary jurisdiction is not warranted when, as here, the Appellate Court's decision is based upon sound, long-standing precedent. The determination below merely parrots the applicable statute. The standard set forth in Revised Code requires a showing of good faith on the part of Appellees in connection with Tristan Johnson's discharge and does not raise a question of public or great general interest; rather, it presents a question of purely personal interest. Thus, this Court should decline jurisdiction pursuant to Rules III, Section 6(c)(1) of the Supreme Court Rules of Practice. 11. STATEMENT OF FACTS AND CASE Tristan Johnson was admitted to the Psychiatric Unit of Mercy Medical Center (hereinafter "Mercy" or "Appellee") in August of 2003 as the result of a drug overdose. Johnson was, at the time of his admission, 21 years old. He had a history of abusing alcohol and illegal drugs, including marijuana, heroin, LSD and Ecstasy. Johnson had, in addition, a long history of psychiatric illnesses and treatment for both mental illness and substance abuse. Johnson had been treated with anti-psychotic and anti-depressant medications, but had a history of failing to talce his medications as prescribed and of otherwise failing to comply with prescribed counseling and other therapies. Johnson was involuntarily committed to Mercy's Psychiatric Unit on August 22, Throughout his period of hospitalization, Kanubhai C. Patel, M.D., a psychiatrist (and not an employee of Mercy), was his attending physician. Johnson also received care from a multidisciplinary team of Mercy employees consisting of occupational therapists, recreational therapists, social services, and psychiatric nurses. Upon admission, Johnson underwent a safety 2

5 level assessment and an initial evaluation. Johnson continued to be evaluated by the nursing staff of Mercy throughout his hospitalization. It was the opinion of Dr. Kanubhai Patel and Mercy's psychiatric nursing staff that Johnson was not suicidal and did not represent a suicide risk over the course of his hospitalization. Dr. Kanubhai Patel and members of the psychiatric nursing staff at Mercy believed that Johnson improved over the period of his hospitalization; he was taking his prescribed medications, eating and sleeping better, was less isolative, and had a better affect. Following the prescribed 72 hours of involuntary commitment, Johnson agreed to remain hospitalized at Mercy on a voluntary basis. Once his hospital stay became voluntary, Johnson enjoyed so-called "lobby privileges," which allowed him to leave the Psychiatric Unit on his own. At no time during his hospitalization did he try either to leave the hospital or to do harm to himself. On August 27, 2003, Tristan Johnson was discharged from the hospital pursuant to the order of Dr. Kanubhai Patel. In fact, Dr. Patel was the only person who was authorized to order Tristan Johnson's release, just as Dr. Kanubhai Patel would have been the only person authorized to convert Tristan Johnson's voluntary commitment to an involuntary commitment as of August 27, Neither the nurses nor the therapists employed by Mercy had the authority to make these decisions. Tristan Johnson was ready and willing to go home on August 27, and - as an adult and voluntary patient - would have every right to discharge himself as of that date. Johnson's mother picked her son up upon his discharge from the hospital. Mrs. Johnson drove her son to the family's home following his discharge from the hospital, and there was nothing about his demeanor that alerted Mrs. Johnson that her son might harm himself. Once home, she telephoned Comerstone Support Services, Inc. to arrange follow-up appointments with Dr. 3

6 Suresh Patel and Johnson's case manager. Mrs. Johnson then left her son alone in order to pick up a pizza and medications for him. When she retumed approximately 20 to 25 minutes later, she discovered that Johnson had committed suicide by hanging. The instant action was brought on January 24, 2005 by Francis F. Johnson, his wife, Ruth Johnson, and their son, Nathan (hereinafter, "Appellants"). The Complaint averred that Behavioral Consultants, its two psychiatrists (the Doctors Patel), and employees of Mercy all "failed to exercise the ordinary degree of care, skill and diligence in their diagnosis, care, and treatment of Plaintiffs decedent" and that Tristan Johnson died as a result of the "negligence and/or failure to exercise professional judgment" of all Appellees. On or about May 25, 2006, Mercy filed a Motion for Summary Judgment and Memorandum in Support. Mercy sought summaryjudgment in its favor on all counts. The other defendants in the case also filed motions for summary judgment. On September 5, 2006, the trial court entertained the arguments of all parties relative to the propriety of awarding summary judgment. On September 19, 2006, the trial court granted summary judgment in favor of Mercy on the following grounds: (1) that Appellants could not establish a prima facie case of negligence against Mercy; (2) that Tristan Johnson's suicide was an intervening act and the sole proximate cause of his death; and (3) that Mercy was immune from liability pursuant to two separate sections of the Ohio Revised Code: and Appellants appealed to the Court of Appeals, Fifth Appellate District. In an opinion dated February 12, 2008, the Appellate Court upheld summary judgment on the basis that Mercy was immune from liability pursuant to Ohio Revised Code Based upon that finding, the reviewing Court deemed the remaining assignments of error to be moot, and so declined to address them. The appeal to this Court followed. 4

7 III. LEGAL ARGUMENT PROPOSITION OF LAW NO. 1: The Supreme Court May Not Insert Words Into A Statute. In effect, Appellants ask this Court to act as a mini-legislature and create a dichotomy between patients who are admitted voluntarily and those who are admitted involuntarily. Pursuant to the clear and unambiguous language of the statute at issue, no such parsing is necessary. Chapter 5122 of the Ohio Revised Code applies to the "Hospitalization of Mentally Ill." Section (A) provides: Persons, including, but not limited to, boards of alcohol, drug addiction, and mental health services and community mental health agencies, acting in good faith, either upon actual knowledge or information thought by them to be reliable, who procedurally or physically assist in the hospitalization or discharge, determination of appropriate placement, or in judicial proceedings of a person under this Chapter, do not come within any criminal provisions, and are free from any liability to the person hospitalized or to any other person. a. Historical Amendments to R.C As originally enacted in 1976, conferred immunity only in connection with the hospitalization of patients, not their discharge. The statute was modified in 1977 to include the words "or discharge," a change which has been construed as "clearly" indicating that "the General Assembly intended for doctors practicing in mental hospitals to be free from liability for the discharge of patients if such discharge is reasonable and in good faith." Leverett v. State (1978) 61 Ohio App.2d 35, 42, 399 N.E.2d 106. This, simply put, is the policy Ohio's legislature has seen fit to embody in the statute. Further amendment to the statute omitted the requirement that, in order to qualify for immunity, the discharge must be reasonable in addition to being in good faith. As a consequence, the immunity offered by is based upon subjective good faith without regard to reasonableness. Loughran v. Kettering Memorial Hospital (1998), 126 Ohio App.3d 5

8 468, 710 N.E.2d 773, 776, dismissed sua sponte and appeal not allowed, 82 Ohio St.3d 1431, 694 N.E.2d 980; Ellison v. University Hospital Mobile Crisis Team (6th Cir. 2004), 108 Fed. Appx In other words, creates a "professional judgment" rule. The good faith rule that underlies immunity for ordering a release from a psychiatric facility creates a subjective standard of conduct which avoids any liability that otherwise results from the breach of a duty of care. 126 Ohio App.3d 468. Simply put, negligence is not controlling and the inquiry hinges instead upon good faith. This version of , which was in effect at all times relevant to the instant case, provides that persons acting in good faith, either upon actual knowledge or information thought by them to be reliable, "who procedurally or physically assists in the hospitalization or discharge" of a mentally ill patient are "free from any liability to the person hospitalized or to any other person." The involvement of Appellee Mercy and its staff in the discharge of Tristan Johnson falls squarely within the language of this statute. b. The Application of R.C to this Case When, as in this case, a defendant has made a prima facie case of good faith, a plaintiff must, in order to escape summary judgment, show that "no reasonable psychiatrist" would have committed -- or, in this case, discharged -- the patient under the circumstances. Loughran, supra. This Court declined to exercise jurisdiction in Loughran, a case in which summary judgment was granted on the strength of Appellants make the unfounded argument that applies only to involuntary commitments, and point out that Tristan Johnson, although involuntarily committed on August 22, continued to stay in the hospital on a voluntary basis after the mandatory 72-hour hold period. The language of the statute itself, however, makes no distinction between voluntary and involuntary hospitalizations or otherwise limits the immunity offered to persons who assist in the 6

9 discharge of a patient depending upon whether the hospital stay was voluntary, involuntary, or some combination of the two. Neither the language of the statute nor the case law applying the statute since its enactment more than thirty years ago supports Appellants' restrictive interpretation. Appellants, in other words, ask this Court to change the scope of as it has been enacted by the General Assembly. Appellants' request that this Court legislate would require action contrary to long-standing precedent. As discussed in Lesnau v. Andate Enterprises, Inc., 93 Ohio St.3d 467, 471, 2001-Ohio-1591, this Court "must give effect to the words used in the statute, not delete any words or insert words not used." Citing State v. Jordan, 89 Ohio St.3d 488, 492, 2000-Ohio-225. While it is certainly true that is properly applied in the case of involuntary commitments, it is not so limited. The statutory scheme of Chapter 5122 itself provides not only for involuntary hospitalization, but for the voluntary hospitalization of individuals as well. Section , for example, provides that a hospital's chief clinical officer shall discharge any voluntary patient who has recovered or whose hospitalization the officer deems to be no longer advisable, and may discharge any voluntary patient wlio refuses to accept treatment consistent with a written treatment plan. Relative to , this Court has held that "the standard of care required for voluntary hospitalization should reflect the General Assembly's wisdom in formulating the standard for involuntary hospitalization." 39 Ohio St.3d at 95; Littleton v. Good Samaritan Hospital & Health Center (1988), 39 Ohio St.3d 86, at 529 N.E.2d 449. Griffin v. Twin Valley Psychiatric Systems (2003), 2003-Ohio-7043 is an example of a case in which was found to apply -- and thereby to render a psychiatric hospital and its staff statutorily immune from liability -- in connection with the discharge of a voluntary patient. In fact, Griffn involved precisely the scenario Appellants describe in their Memorandum in 7

10 Support of Jurisdiction: the patient in Griffn began his hospital stay as an involuntary admission, but subsequently changed status to a voluntary admission. The General Assembly has the ability to draw a distinction between voluntary and involuntary admissions, yet has not done so. Of course, it is the legislative branch of the government which is "the ultimate arbiter of public policy." Arbino v. Johnson & Johnson (2007), 116 Ohio St.3d 468, 880 N.E.2d 420 at 21. The decision in Arbino was cited with approval by this Court as recently as February of 2008 in the case of Groch v. General Motors Corp. (2008), 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377. As this Court observed in Groch:...we are to grant substantial deference to the predictive judgment of the General Assembly under a rational-basis review. Further, as the United States Supreme Court has stated, "it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature." Id. at 172 (citations omitted). Section has been in existence for more than thirty years, and has been interpreted by the courts of Ohio on many occasions. The instant case presents no reason for this Court to revisit the issue of the deference due to legislative enactments and the preservation of separation of powers between the various branches of the government. This Court has ruled on that issue less than two months ago. PROPOSITION OF LAW NO. 2: Summary Judgment Is Proper When The Evidence, Viewed In A Light Most Favorable To The Non-Moving Party, Fails To Create A Question Of Fact. A review of Appellants' proposed Proposition of Law No. 2 illustrates the lack of public or great general interest and the personal nature of the review which Appellants seelc. Appellants have failed to propose a new rule of law which could serve as a syllabus if they were to prevail. Appellants, instead, assert facts unique to this case that fall far short showing why the case is of public or great general interest. Arguments that the Court of Appeals erred by failing to properly 8

11 apply well-settled rules of law regarding the sununary judgment standard do not entitle Appellants to review from this Court. Throughout this proceeding, Appellants have endeavored to create a genuine issue of material fact as to good faith where none exists. Appellees' Motion for Summary Judgment set forth numerous bases, in addition to and independent of statutory inununity, for the dismissal of Appellants' claims, among them: that Appellants identified no nursing expert who was qualified to testify as to the standard of care applicable to psychiatric nurses; that while Appellants criticized staff members of Mercy for alleged deviations from certain written internal policies and procedures, such policies and procedures are not synonymous with the applicable standard of care; that Tristan Johnson's discharge was ordered by Dr. Kanubhai Patel, the decedent's attending psychiatrist and the only person who could have ordered Johnson's release from the hospital; that the "evidence" proffered by Appellants to oppose summary judgment was an affidavit of its sole expert that contradicted previous sworn deposition testimony witliout explanation for the discrepancies; and that Tristan Johnson's suicide was an independent intervening act which broke the chain of causation, if any, between his death and any alleged negligence on the part of Appellees. Any of these legal precepts, which have been well established under Ohio law, could have properly formed the basis for an award of summary judgment in favor of Appellees. In addressing these issues, the court below employed the appropriate summary judgment standard, citing to and applying Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36; Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 1997-Ohio-259; and Dresher v. Burt (1996), 75 Ohio St.3d 280, 1996-Ohio-107. The lower courts have correctly applied the controlling law, and there is no reason for this Court to exercise its jurisdiction in order to disturb the decision below. 9

12 IV. CONCLUSION Appellee, Mercy Medical Center, for the reasons set forth above, respectfully requests that this Court decline jurisdiction in this matter. R9spAx,,tfully submitted, Jill C^cQueen (# ) Alici. Wyler (# ) DAY KETTERER LTD. 300 Millennium Centre 200 Market Avenue, North P.O. Box Canton, Ohio Telephone (330) Facsimile (330) Attorneys for Appellee, Mercy Medical Center PROOF OF SERVICE This is to certify that a copy of the foregoing Memorandum of Appellee, Mercy Medical Center, in Opposition to Claimed Jurisdiction was sent by regular U.S. Mail this 22"d day of April, 2008 to: Robert J. Vecchio, Esq. Anthony J. Vegh, Esq. Robert J. Vecchio Co., L.P.A. 526 Superior Ave., East 720 Leader Building Cleveland, OH Attomeys for Appellants, Francis F. Johnson, et al. Maryellen C. Spirito, Esq Marble Cliff Office Park Columbus, Ohio Attomey for Appellees, Kanubhai R. Patel, M.D. Suresh A. Patel, M.D. Behavioral & Psychiatric Consultants, Inc. 10