Chasse v. Banas

• Decision Date: 28 February 1979
• Docket Number: No. 78-138,78-138
• Citation: 399 A.2d 608,119 N.H. 93
• Parties: Carol CHASSE v. Christina BANAS. Carol CHASSE v. Abdulaziz KHAKEE et al.
• Court: New Hampshire Supreme Court

Page 608

399 A.2d 608

119 N.H. 93

Carol CHASSE v. Christina BANAS.

Carol CHASSE v. Abdulaziz KHAKEE et al.

No. 78-138.

Supreme Court of New Hampshire.

Feb. 28, 1979.

Barrett & McNeill P. A., Durham (John T. Barrett, III, Durham, orally), for plaintiff.

Sulloway, Hollis, Godfrey & Soden, Concord (Peter F. Imse, Concord, orally), for Abdulaziz Khakee.

Thomas D. Rath, Atty. Gen., (Anne E. Cagwin, Asst. Atty. Gen., orally), for Abdulaziz Khakee, Luigi Dolcino, New Hampshire Hospital and Bernard March.

LAMPRON, Chief Justice.

These are actions against individual doctors employed by the New Hampshire Hospital, the superintendent of the hospital, and the State hospital itself for the negligent treatment of an involuntarily committed mental patient. Before trial all the defendants moved to dismiss the plaintiff's causes of action against them on the grounds of sovereign immunity. Their motions were granted, and consequently, plaintiff's actions were dismissed. Plaintiff seasonably excepted and all questions of law were reserved and transferred by Mullavey, J. We sustain the exceptions and remand.

On or about March 9, 1970, the plaintiff, due to a mental disability, was involuntarily committed to the New Hampshire Hospital. Dr. Christina Banas was the first doctor to examine the plaintiff and diagnosed that she was suffering from an "acute schizophrenic episode". During the course of the plaintiff's confinement Dr. Banas, independently and under the supervision of Dr. Abdulaziz Khakee and Dr. Luigi N. Dolcino, prescribed and administered several medications to the plaintiff for controlling her psychotic symptom. One of the drugs that was prescribed and administered, was Mellaril. This drug was given to the plaintiff for more than one month in daily dosages ranging from 1200 milligrams to 2800 milligrams. Dr. Banas, in answer to plaintiff's interrogatories, conceded that the recommended daily dosage, under normal circumstances, is only 800 milligrams.

Plaintiff contends that if permitted to proceed to trial she would prove through expert witnesses that the administration and prescription of three and a half times the maximum recommended daily dosage of this drug was negligent according to accepted medical standards as it was well known in the medical profession that this excessive dosage could cause severe and permanent sight impairment. Plaintiff further contends that she would prove that the excessive dosage of this medication caused her to lose extensive use of her vision. The issue that this court must address is whether the doctrine of sovereign immunity bars the plaintiff's actions.

Plaintiff argues in the alternative that the enactment of RSA ch. 135-B, Civil Procedures relating to the Admission and Treatment of the Mentally Ill, should be considered by this court as a waiver of sovereign immunity for causes of action against the New Hampshire State Hospital and its doctors. The State is free to "waive its immunities and permits suits to be brought and recovery obtained by plaintiffs injured by the negligence of its agents." Sousa v. State, 115 N.H. 340 at 344, 341 A.2d 282 at 285 (1975). A waiver will exist "if the legislature has provided for it by statute, either expressly or by reasonable implication." Public Service Co. v. State, 102 N.H. 54, 56, 149 A.2d 874, 876 (1959).

Statutory waivers of sovereign immunity have been strictly construed in this State. Public Service Co. v. State, 102 N.H. at 56, 149 A.2d at 876. Nonetheless, if a statute by its terms evidences a clear intent to grant a right to sue and recover damages caused by the negligent actions of certain state officials, that statute must be construed to carry out the will and beneficent purpose of the legislature. See Nazzaro v. Merrimack Sch. Dist., 118 N.H. ----, ----, 385 A.2d 230, 232 (1978). One of the primary reasons RSA ch. 135-B was enacted was to guarantee humane treatment for the mentally ill. RSA 135-B:1 (Purpose and Policy). To this end RSA 135-B:43 provides, in pertinent part, that (e)very mentally ill patient has a Right to Adequate and Humane treatment . . .." (Emphasis added). By enacting this provision the legislature has done more than enunciate general objectives and goals, (See Matter of Doe, 118 N.H. ----, ----, 385 A.2d 221, 222 (1978)); it has recognized civil rights of the mentally disabled who are confined in State institutions. See Dolcino v. Clifford, 114 N.H. 420, 421, 321 A.2d 577, 578 (1974).

This statutory mandate creates a right for those patients involuntarily committed to a State hospital and concomitantly imposes a duty upon employees of the State hospital to provide adequate and humane treatment. "The existence of a statutory right implies the existence of all necessary and appropriate remedies." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (1969). The most appropriate remedy is an action for damages. W. Prosser, Law of Torts § 1 at 2 (4th ed. 1971). Indeed, the Supreme Court of the United States has stated:

A disregard of the command of the statute is a wrongful act and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied . . .. Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916).

The only way in which a civilly committed patient can obtain a remedy is to bring an action against the State Hospital or its agents.

To deny an involuntarily committed patient the right to legal action to enforce this right would prove the legislature's guarantee of adequate treatment to be an empty promise. See Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295, 1322 (D.Pa.1977); Eubanks v. Clarke, 434 F.Supp. 1022, 1026-27 (D.Pa.1977). Therefore we are convinced that the legislature, by guaranteeing the civilly committed patient the right to adequate and humane treatment, has waived any claim of sovereign immunity in an action for damages where a patient at the New Hampshire Hospital seeks to vindicate the denial of this right. See O'Neill v. State Highway Department, 50 N.J. 307, 316 n. 1, 235 A.2d 1, 5 n. 1 (1967).

An action for damages that arises from such a breach of a statutory duty would be in tort. See Dunbec v. Exeter & Hampton Elec., 119 N.H. ----, 396 A.2d 1101 (12 Jan. 1979). In addition to the requirements of proximate causation and injury in fact, there are two other essential requirements for recovery: first, the right/duty that the statute mandates must be intended to protect the plaintiff or a class of which he is a member; and second, that there be some "directive to the defendant." See Emery v. Booth, 114 N.H. 646, 647-48, 325 A.2d 788, 789 (1974). G. Mowe, Federal Statutes and Implied Private Actions, 55 Oreg.L.Rev. 3, 11-12 (1976); Restatement of Torts § 286 (1934); Restatement (Second) of Torts § 286 (1965). RSA ch. 135-B was intended: "to reduce the occurrence of mental, emotional and behavioral disabilities by guaranteeing humane treatment for the mentally ill, and enable the afflicted to obtain needed care and rehabilitation." RSA 135-B:1. There is little question that the plaintiff, a mentally disabled person involuntarily committed to the State hospital, was within the protection...