Carlisle v. Frisbie Mem'l Hosp.

• Decision Date: 30 November 2005
• Docket Number: No. 2004–555.,2004–555.
• Court: New Hampshire Supreme Court
• Parties: Heidi CARLISLE v. FRISBIE MEMORIAL HOSPITAL and another.

152 N.H. 762

888 A.2d 405

Heidi CARLISLE

v.FRISBIE MEMORIAL HOSPITAL and another.

No. 2004–555.

Supreme Court of New Hampshire.

Argued: Sept. 15, 2005.

Opinion Issued: Nov. 30, 2005.

Backus, Meyer, Solomon & Branch, L.L.P., of Manchester (Jon Meyer, on the brief and orally), for the plaintiff.

McDonough & O'Shaughnessy, P.A., of Manchester (Michael B. O'Shaughnessy and Robert J. Meagher, on the brief, and Mr. Meagher orally), for the defendants.

GALWAY, J.

This appeal follows a jury trial in Superior Court (Mohl , J.) awarding a verdict for the plaintiff, Heidi Carlisle, on her claims against the defendants, Frisbie Memorial Hospital (Frisbie) and John Jackson, M.D. We affirm.

On appeal, the defendants argue that the trial court erred by: (1) submitting to the jury the plaintiff's professional negligence claim, her claims under the federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2000), and her claims under the New Hampshire Patients' Bill of Rights Act (PBR), RSA 151:19 – :31 (1996); (2) submitting erroneous jury instructions on EMTALA, professional negligence, and damages; (3) refusing to allow Dr. Jackson's discovery deposition to be read into evidence at trial; and (4) refusing to grant defendants' motion for remittitur.

The jury could have found the following facts. The plaintiff had a history of alcohol abuse and mental illness. When she drank alcohol, it often elicited feelings of depression and thoughts of a sexual assault that she experienced as a teenager.

During the day of May 6, 2000, the plaintiff consumed alcohol. That evening, she drank more alcohol and became increasingly depressed and suicidal. Desiring treatment for her condition, she drove to Frisbie's emergency room at approximately midnight. She chose Frisbie because it was nearby and because she knew that it advertised mental health services.

Upon arrival, a hospital employee led the plaintiff to an examining room. Dr. Jackson, the department physician on duty, saw her a few minutes later. She told him that she had been drinking and had suicidal thoughts involving hanging herself. He asked if she wanted to see a counselor from the Strafford Guidance Center, an organization that treats patients with mental illnesses in the hospital. She declined the offer, stating that she was involved with the Strafford Guidance Center through her work. She told him that she would see any other counselor or psychologist. He then left the room. He returned a few minutes later and asked, again, if she would see Strafford Guidance. She again declined. He told her that he was going to get her help and left the room. She testified that she assumed he meant that he was going to find another counselor or psychologist; she had not acted in a disruptive or disorderly manner during her interactions with him. After he left, she was alone in the examining room and did not attempt to leave.

During one of the two intervals in which Dr. Jackson left the room, he called the police. He never told the plaintiff that he intended to do so. After he exited the room for the second time, the next person into the room was Officer Macaione of the Rochester Police Department. The plaintiff asked Officer Macaione what he was doing there, and he responded by asking her questions regarding her alcohol consumption, her suicidal thoughts, and whether she would take a blood-alcohol test. She answered that she was intoxicated, that she had suicidal thoughts, and that she thought a blood-alcohol test was a waste of time and money, since she admitted to being drunk. Officer Macaione then informed her that he was going to take her to jail, and handcuffed her.

Another officer arrived at the hospital to assist Officer Macaione. Outside of the plaintiff's presence, Dr. Jackson gave one of the officers a note, stating, "Heidi Carlisle is medically cleared to enter protective custody for suicidal intent and alcohol intake." Officer Macaione then led the plaintiff out of the hospital. On the way out, the plaintiff saw Dr. Jackson. She told him that she disliked him and that she hated him for calling the police and having her taken to jail. The plaintiff testified that, had Dr. Jackson informed her that jail was the alternative, she would have agreed to see a counselor from Strafford Guidance Center. Upon exiting the hospital, she felt depressed and betrayed because he never warned her of the possibility of going to jail. She also felt embarrassed as people watched Officer Macaione lead her out of the hospital.

Officer Macaione drove the plaintiff to the Strafford County Jail at approximately 1:00 a.m. A guard at the jail kicked her feet apart, frisked her, then searched her. She asked if she could make a phone call, and the guard said "no." The guard placed her in a cell with a concrete slab for a bed, a toilet, and a sink. There was another woman in the cell, who was asleep on the bed. When the plaintiff used the toilet, she was exposed to both the woman in the cell and anyone walking by in the hallway. She was in the jail cell for approximately fourteen hours without food, water, or medical treatment. During that time, she felt betrayed, depressed, and confused about why she was there. A counselor from Strafford Guidance Center met her at the jail on the afternoon of May 7. After their meeting, the police released her.

As a result of the events of May 6 and 7, the plaintiff's mental illness worsened. Her therapist testified that her experience at Frisbie made her reluctant to trust any medical professionals or see a therapist. The plaintiff also testified that the betrayal that she felt after seeing Dr. Jackson made her postpone seeing a therapist for months. During that time, she drank more heavily, and her depression and thoughts of suicide intensified. Her mental state affected the quality of her work and caused her to miss work at the child care business that she ran. The plaintiff also resigned from her job at the local fire department because she anticipated being fired after showing up to work intoxicated. She experienced a loss of appetite and, on multiple occasions, called a friend late at night crying because of the betrayal that she felt at Frisbie.

The plaintiff brought three causes of action against the defendants: (1) violation of EMTALA against Frisbie; (2) professional negligence against Dr. Jackson; and (3) violation of the PBR against Frisbie. The jury found for the plaintiff on all three counts.

I. EMTALA

An overview of the EMTALA statute gives context to our determinations below. Enacted in 1986, EMTALA requires that hospitals receiving the benefit of federal Medicare funding take certain steps to ensure appropriate care for emergency room patients. Correa v. Hospital San Francisco, 69 F.3d 1184, 1189 (1st Cir.1995) ; see also 42 U.S.C. § 1395dd ; Furrow, An Overview and Analysis of the Impact of the Emergency Medical Treatment and Active Labor Act , 16 J. Legal Med. 325, 325–26 (Sept. 1995). The first step that EMTALA requires emergency rooms to take is to properly screen, or examine, all patients admitted to the emergency room seeking medical assistance. Correa , 69 F.3d at 1190; see also 42 U.S.C. § 1395dd(a). If the patient has an emergency medical condition, EMTALA requires that the hospital either examine and treat the patient as necessary to stabilize the patient's condition, or transfer the patient to another medical facility when such a transfer is relatively safe and medically advisable. Correa , 69 F.3d at 1190; see also 42 U.S.C. § 1395dd(b)(1)(B), (c)(1). To establish a violation of EMTALA, the plaintiff must prove:

(1) that the hospital is a participating hospital, covered by EMTALA, that operates an emergency department (or an equivalent treatment facility); (2) the patient arrived at the facility seeking treatment; and (3) the hospital either (a) did not afford the patient an appropriate screening in order to determine if she had an emergency medical condition, or (b) bade farewell to the patient (whether by turning her away, discharging her, or improvidently transferring her) without first stabilizing the emergency medical condition.

Correa , 69 F.3d at 1190.

A. Waived Objections

Frisbie asserts that the plaintiff did not present sufficient evidence from which a reasonable jury could find that she satisfied the following two elements of an EMTALA claim: first, that Frisbie was a "participating hospital" under EMTALA; and, second, that Frisbie improperly "transferred" the plaintiff. Id. The plaintiff argues that Frisbie waived these issues and is precluded from raising them on appeal. We agree.

The well-established rule is that an objection to the sufficiency of evidence is waived unless taken at a time when there may still be an opportunity to supply the deficiency.... [T]he defendant could not lie by until after the evidence, arguments, and charge to the jury were closed, and then first avail himself of an objection that was open to him, and which in fairness he ought to have taken as soon as the evidence for the plaintiff was closed, or, at latest, when the evidence was closed on both sides.

Derosier v. New England Telephone & Telegraph Co., 82 N.H. 405, 405–06, 134 A. 719 (1926) (citations and quotations omitted); 5 R. Wiebush, New Hampshire Practice, Civil Practice and Procedure § 48.12, at 331 (1984) (stating, "[a] Motion for Directed Verdict may be filed at any time after all the evidence for the moving party's opponent has been presented and before the case is taken under advisement or the jury is charged").

Frisbie failed to raise its sufficiency of the evidence objections regarding either "participation" or "transfer" until after the trial court gave the jury instructions. The record reveals ample opportunity for Frisbie to have raised objections regarding the plaintiff's proof of participation and improper transfer prior to that point. For instance, after the close of plaintiff's evidence, Frisbie moved for directed...