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HomeMy WebLinkAbout2001-6498 Civil GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOLY SPIRIT HOSPITAL, DEFENDANT 01-6498 CIVil TERM IN RE: MOTION OF DEFENDANT. HOLY SPIRIT HOSPITAL. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND HESS. J. OPINION AND ORDER OF COURT Bayley, J., July 27, 2006:-- Plaintiffs, Gary W. Berresford and Harry S. Hart, Jr., are police officers in the West Shore Regional Police Department. On November 18, 2000, they served Ryan Schorr with a Section 302 warrant issued pursuant to the Pennsylvania Mental Health Procedures Act, and delivered him to Holy Spirit Hospital on an involuntary commitment.1 In less than an hour, Schorr absconded from a secure area of the hospital. Plaintiffs were notified and went to Schorr's apartment. While attempting to reserve the warrant, a physical confrontation ensued during which Schorr physically attacked and assaulted plaintiffs. On February 19, 2002, plaintiffs filed a complaint seeking damages against Holy Spirit Hospital and the estate of Schorr.2 Holy Spirit 150 P.S. S 7101 et seq. 2 The case against the estate at 01-7232 Civil Term has been joined with this case. 01-6498 CIVIL TERM Hospital filed a demurrer to the complaint, averring, inter alia, that the Pennsylvania Mental Health Procedures Act bars plaintiffs' claim for negligence, and that plaintiffs' allegations of gross negligence do not support a cause of action. On July 11, 2002, an order was entered, supported by a written opinion, dismissing the preliminary objections. We concluded that the Mental Health Procedures Act did not bar plaintiffs' cause of action based on a failure to adequately secure and detain Schorr, whom it is alleged the hospital knew or should have known was a danger to the public. Nor did it bar a claim based on gross negligence involving any treatment of Schorr. On May 11, 2005, an order was entered, supported by a written opinion, denying a motion by Holy Spirit Hospital for summary judgment. On December 1, 2005, Holy Spirit Hospital filed a second motion for summary judgment, this time maintaining the plaintiffs' suit must be dismissed because it has governmental immunity under 42 PaC.S. Section 8541.3 The motion was briefed and argued on July 12, 2006. Section 8541 of the Judicial Code provides: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or 3 Immunity from suit is an affirmative defense to be pleaded in new matter. Pa Rule of Civil Procedure 1030. While Holy Spirit Hospital, in new matter, pled immunity under the Healthcare Services Malpractice Act, 40 P.S. Section 1301.101 et seq., now repealed, it did not plead immunity under 42 PaC.S. Section 8541. Governmental immunity, however, is not waivable. See Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa 588 (1992). -2- 01-6498 CIVIL TERM any other person.4 4 The exceptions, not applicable to this case, are set out in 42 PaC.S. S 8542. -3- 01-6498 CIVIL TERM Citing McHale v. Cole, 119 Pa. Commw. 334 (1988), Holy Spirit Hospital maintains that as the county-designee for involuntary commitments, it is immune from this suit as a matter of law. In McHale, plaintiff was sexually assaulted by Larry Cole in a park adjacent to a facility operated by Montgomery County Emergency Services, Inc. (MCS). At the time, Cole was a voluntary out-patient at MCS. On the morning of the assault Cole had requested inpatient treatment at MCS, but was not admitted. The plaintiff alleged that MCS was liable for her injuries because of its failure to admit Cole on an inpatient basis for psychiatric treatment. MCS moved for summary judgment on the claim of immunity under Section 8541 of the Judicial Code. Summary judgment was granted. The trial court concluded that MCS, pursuant to the Mental Health Procedures Act, was the designated mental health facility from Montgomery County, and therefore was a local agency. The Commonwealth Court reversed, concluding that "MCS' designation did not entitle it, in this case, to immunity as a governmental agency." MCS was designated only for involuntary commitments from the community, not voluntary commitments. The Court stated: Therefore, a patient receiving treatment on a voluntary out-patient basis is not subject to the Act. Specifically omitted from the coverage of the Act is an individual receiving voluntary out-patient treatment. Therefore a facility treating this type of patient cannot be a government agency as defined by the Judicial Code. The record clearly establishes that Cole was a voluntary out-patient and that on three occasions immediately prior to the rape, he requested in-patient treatment. The record also indicates that Cole was a danger and that he was very disturbed. His request for in-patient treatment was not made to MCS, the designated mental health facility, but, was made to MCS the private business that provided mental health services for voluntary out-patients. MCS' decision not to do -4- 01-6498 CIVIL TERM anything with Cole, except continue his treatment as a voluntary out- patient, certainly could have been the cause of appellant's injury. That however, it is a matter for the trier of fact to determine.5 Since Cole was not involuntarily admitted to MCS, the Commonwealth Court did not decide if MCS would have been immune from suit if Cole had been admitted involuntarily, and then absconded and caused injury as in the present case. Therefore, McHale standing alone is not as argued by Holy Spirit Hospital "adequate support for this Court to grant Holy Spirit Hospital's motion." Alternatively, Holy Spirit Hospital asserts immunity on a claim that its contract with Cumberland County establishes that it acted as an arm of Cumberland County in providing emergency crisis intervention services for Schorr by accepting his involuntary commitment. In Smith v. Porter Township, Clinton County, 141 Pa Commw. 244 (1991), the Commonwealth Court stated: Section 8501 of the Judicial Code reads in pertinent part: ~ 8501. Definitions The following words and phrases when used in this chapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section: * * * * * "Employee." Any person who is acting or who has acted on behalf of a government unit whether on a permanent or temporary basis, whether compensated or not and whether within or without the territorial boundaries of the government unit, including any 5 The Court cited 42 PaC.S. Section 102 as defining a "local agency" as "any Commonwealth agency or any political subdivision or municipality or other local authority, or any officer or agency of such political subdivision or local authority." That is the definition of a "Government agency" in Section 102 (except that the word "municipal," not "municipality" is used). "Local agency" is defined at 2 PaC.S. Section 101 as "a government agency other than a Commonwealth agency." -5- 01-6498 CIVIL TERM volunteer fireman and any elected or appointed officer, member of a governing body or other person designated to act for the government unit. Independent contractors under contract to the government unit and their employees and agents and persons performing tasks over which the government unit has no legal right of control are not employees of the government unit. 42 Pa.C.S. S 8501. Under the terms of this provision, we have held that a local government agency has no liability for the negligent acts of an independent contractor, but may be held liable for the negligent acts of an employee. County of Schuylkill v. Maurer, 113 Pa. Commonwealth Ct. 54, 536 A.2d 479 (1988). Conversely, the immunity protections of Chapter 85 extend to employees of a local government agency, but are not extended to independent contractors. See Section 8541 of the Judicial Code, 42 Pa.C.S. S 8541. In County of Schuylkill, this Court discussed the matter of determining whether a person is an independent contractor or an employee for purposes of governmental immunity. Citing the standard used by the Pennsylvania Supreme Court in Zimmerman v. Public School Employees' Retirement Board, 513 Pa. 560, 522 A.2d 43 (1987), which in turn cites to the analysis used in Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 243 A.2d 389 (1968), we set forth the factors which must be considered in making such a determination. control of manner [in which] work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one is engaged in a distinct occupation or business; which party supplied the tools; whether payment is by the time or by the job; whether work is part of the regular business of the employer, and also the right to terminate the employment at any time. County of Schuylkill, 113 Pa. Commonwealth Ct. at 61, 536 A.2d at 482- 83 (citations omitted). We went on to state that none of these factors, standing alone, is dispositive in making the determination of whether a person is an employee or an independent contractor for immunity purposes; rather, each case must be determined according to its own facts. Id. (Emphasis added.) In Smith, an employee of an engineering firm under contract with a township performed duties that would otherwise have been performed by the township sewage -6- 01-6498 CIVIL TERM enforcement officer. The Commonwealth Court concluded that, although the township was immune on a claim of negligent issuance of a sewage disposal permit, the trial court needed to make the analysis set forth in County of Schuylkill v. Maurer, 113 Pa. Commw. 54 (1988), to determine whether the firm was an employee of an independent contractor. If it was an employee, it would be entitled to immunity; if it was an independent contractor, it would not. In Hensel v. Complete Care Services, L.P., 797 A.2d 1051 (Pa. Commw. 2002), the issue was whether Complete Care Services, L.P. (CCS), a privately owned, for-profit Pennsylvania corporation, was entitled to governmental immunity because it was designated to act on behalf of the County of Cambria in its role as administrators of the county owned and operated nursing home. The plaintiff sued CCS on a claim of negligence in the care of a patient. Plaintiff asserted that CCS entered into a contract with the county under which CCS had control of the manner in which the nursing home was managed, including the selection, hiring and retention of staff, and the scheduling of day-to-day supervision of the staff who reported to and took directions from CCS and its agents, that its management service agreement with the county set forth that it was an independent contractor, and that the agreement was silent on control over the manner in which work was to be done. The trial court overruled a demurrer of CCS to plaintiff's complaint on a claim of governmental immunity. The Commonwealth Court allowed CCS's interlocutory appeal. In affirming the trial court and remanding the case for discovery and further proceedings, the Court concluded that "The mere fact that -7- 01-6498 CIVIL TERM CCS performed a function for which the County would enjoy immunity if the County performed it directly does not mean that CCS was immune. . ." Citing Smith v. Porter Township, Clinton County, supra, County of Schuylkill v. Maurer, supra, and Marshall v. Port Authority of Allegheny County, 524 Pa. 1 (1990), the Court stated that these cases "show a lack of support for the sweeping assertion of CCS that any action on behalf of or in the interest of a government agency entitles the private actor to governmental immunity." In the case sub judice, the contract between Holy Spirit Hospital and Cumberland County to provide emergency crisis intervention services for a Mental Health-Mental Retardation Program is for a set term for which there is reimbursement for up to a maximum amount of money based on an estimate of the number of clients to be served.6 Each party may cancel the contract upon at least 90 days written notice to the other party. Holy Spirit Hospital, the Provider, represents that it "is engaged as an expert in its field and with respect to the scope of the work herein required of Provider, Provider represents and warrants that it is qualified, experienced and available to perform all obligations imposed by this Agreement. . ." The contract sets forth: Scope of Work Provider will furnish all labor, materials, skills, supervision, services and other things necessary for the full performance of the items set forth on attached Exhibit A and in accordance with this Contract (hereinafter referred to as the "Work") and will complete the Work. The work set forth in Exhibit A is described as a twenty-four hour a day, seven -8- 01-6498 CIVIL TERM day a week Crisis Intervention Service located at Holy Spirit Hospital in Camp Hill "Perspective clients need only make contact with the program by phone or walk in and request intervention in order to receive service." The Service Delivery is described as follows: Service will be provided by phone, walk-in, and outreach. The primary focus of intervention is on a here and now resolution of immediate client needs. Crisis counselor will employ recognized counseling strategies with primary emphasis on the problem-solving approach. Other activities provided by the counselors include assessments, consultation, assistance and information referral. The Staff Complement is described as follows: There is a total of 9 regular staff who are part of the Crisis Intervention Service: Master's Degree Supervisor 1 Bachelor's or Master's Degree Counselor 7 R.N. 1 Total regular FTE's: 5.2 In addition, a variety of CMHC staff (Bachelor's and Master's level therapists, and RN's) provide backup and assistance to the Crisis Service during times of peak activity. The contract further sets forth: Provider is an Independent Contractor Provider is and shall remain at all times during the term of this Contract an independent contractor and not an agent, servant, or employee of County. There is an indemnification clause holding Cumberland County harmless for various types of claims that reiterates, "Nothing shall be construed as constituting 6 It is a joint contract with Perry and Cumberland counties. -9- 01-6498 CIVIL TERM provider as other than an independent contractor. . ." Should Holy Spirit default, the County may withhold payments due or terminate the contract. The Hospital is prohibited from entering subcontracts for any of the work "without obtaining prior written approval of the County and subject to such conditions and provisions as County may deem necessary." The County may conduct program and facility reviews. The Hospital must "prepare a Corrective Action Plan (CAP) to address all findings of non-compliance or internal control weaknesses." The Hospital must establish a grievance procedure, a copy of which must "include the name of the County MH & MR Administrator." The salary of personnel involved in the program, "for purposes of contract reimbursement, shall be determined by the County approved Personnel Classification system.,,7 Service records must be maintained separately, all requested clinical information must be transmitted freely within the bi-county administrative unit, program statistical data and reports must be submitted "at times prescribed and on forms required by State, County or MH & MR." "Procedures for Involuntary Commitments (302) must be followed as directed by the Mental Health Procedures Act to include but not limited to: Physician evaluation completed within two (2) hours of consumer arrival, face-to-face 7 The contract states that this is in keeping with the Department of Public Welfare Regulations. The system is the Department's approved classes used in County MH&MR Programs, Children and Youth Programs, Aging Office, Drug and Alcohol Programs, and the new Chief Executive Officer grid. The Hospital may appeal a classification to the Department of Public Welfare. This Classification and Salary Procedures provision also provides: "Nothing herein shall be deemed to limit compensation to Provider's employees but it is relevant in determining reimbursement to Provider and may limit same." -10- 01-6498 CIVIL TERM evaluation by a physician, and Act 77 information completed and submitted to the County office within two (2) work days." In applying an analysis required by Smith, Hensel and County of Schuylkill, we -11- 01-6498 CIVIL TERM find that the record supports the following conclusions. The mental health unit of Holy Spirit Hospital is part of its regular hospital business. The manner in which work is performed by the hospital in providing intervention, treatment and security for involuntarily committed patients is not controlled by Cumberland County. The County is the source of grant money for the hospital as reimbursement for providing skilled intervention for such patients. While there is program and financial oversight that comes with the grant money, the contract can be terminated by either party with ninety days written notice. The Mental Health and Retardation office of the County is not in the hospital business. The hospital, as its contract with the County states, is an independent contractor. It does not have governmental immunity under 42 PaC.S. Section 8541 . ORDER OF COURT AND NOW, this day of July, 2006, the motion of Holy Spirit Hospital for summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Mark K. Emery, Esquire For Plaintiffs Michael D. Pipa, Esquire F or Defendant Mark Cuker, Esquire -12- 01-6498 CIVIL TERM F or Estate of Schorr -13- :sal GARY W. BERRESFORD AND HARRY S. HART, JR., PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOLY SPIRIT HOSPITAL, DEFENDANT 01-6498 CIVIL TERM IN RE: MOTION OF DEFENDANT. HOLY SPIRIT HOSPITAL. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND HESS. J. ORDER OF COURT AND NOW, this day of July, 2006, the motion of Holy Spirit Hospital for summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Mark K. Emery, Esquire For Plaintiffs Michael D. Pipa, Esquire F or Defendant Mark Cuker, Esquire F or Estate of Schorr :sal