Gallagher v. S. Shore Hosp., Inc.
| Docket Number | 21-P-207 |
| Decision Date | 06 October 2022 |
| Citation | 101 Mass.App.Ct. 807,197 N.E.3d 885 |
| Parties | Susan GALLAGHER v. SOUTH SHORE HOSPITAL, INC., & others. |
| Court | Appeals Court of Massachusetts |
Gregory A. Hession, Springfield, for the plaintiff.
Bradford N. Louison, Boston, for Jennifer Pompeo.
Deawn C. Takahashi, for Elder Services of Cape Cod and the Islands, Inc., & another.
Ashley E. Russo, Boston, for South Shore Hospital, Inc.
Present: Green, C.J., Sullivan, & Henry, JJ.
The Executive Office of Elder Affairs (EOEA) has a duty to investigate reports of elder abuse that are made pursuant to G. L. c. 19A, § 15 ( § 15 report), and the Legislature has created a comprehensive statutory scheme setting forth procedures for doing so. See G. L. c. 19A, §§ 15 - 24. At the same time, the interior of the home is "the most sacred, constitutionally protected area," Commonwealth v. Yusuf, 488 Mass. 379, 380, 173 N.E.3d 378 (2021), and individuals in the Commonwealth have "a right to forego [medical] treatment" and "a strong interest in being free from nonconsensual invasion of [their] bodily integrity" (quotation and citations omitted), Harnish v. Children's Hosp. Med. Ctr., 387 Mass. 152, 154, 439 N.E.2d 240 (1982). This case, which comes to us on appeal from judgments entered for the four defendants on motions for summary judgment, concerns the balance between these interests.
While there are disputes of fact that we detail infra, the undisputed facts are these. For ten years prior to March 30, 2016, when retired Roman Catholic priest Father Philip LaPlante passed away at the age of ninety-five, the plaintiff, Susan Gallagher, provided LaPlante3 with care in her home where he also lived. Gallagher held a health care proxy and a power of attorney for LaPlante.
On June 25, 2015, Weymouth police Officer Jennifer Pompeo and elder care caseworker Eileen Schoener entered the Gallagher/LaPlante home without permission, notice, or court order while investigating Pompeo's § 15 report alleging neglect and verbal abuse of LaPlante by Gallagher. They remained there over Gallagher's objections and caused LaPlante to be transported to the hospital, also over Gallagher's objections. Without Gallagher's consent, LaPlante was examined at the hospital and admitted for five days. He was discharged in Gallagher's care after a judge rejected a request for a protective order. Ultimately, it was determined that no medical condition had required LaPlante's hospitalization. A subsequent investigation did not substantiate the allegations of abuse or neglect.
On behalf of herself and LaPlante's estate, Gallagher sued Pompeo in her individual capacity; Schoener in her individual capacity; Schoener's employer, Elder Services of Cape Cod and the Islands, Inc. (ESCC), on a theory of vicarious liability for Schoener's actions; and South Shore Hospital, Inc. (hospital). Gallagher asserted claims on behalf of herself and LaPlante, against Pompeo and Schoener, for violation of civil rights (count one); on her own behalf against Pompeo, Schoener, and ESCC for trespass (count two); on behalf of LaPlante, against Pompeo, Schoener, ESCC, and the hospital, for false imprisonment (counts three and four4 ); and on behalf of LaPlante, against the hospital, for battery (count five). A judge of the Superior Court (first judge) allowed a motion by Pompeo for summary judgment on counts one, two, and three.5 Thereafter, a different judge (second judge) allowed Schoener's and ESCC's motion for summary judgment on those same counts. The second judge also allowed the hospital's motion for summary judgment on counts four and five. A separate and final judgment entered in favor of Pompeo, followed by a judgment dismissing Gallagher's complaint. Gallagher appeals. We have carefully reviewed the record, and conclude that there are material factual disputes that preclude the entry of summary judgment. We also conclude that on this record, Pompeo is not entitled to summary judgment on the civil rights claim predicated on a claim of qualified immunity. Accordingly, we reverse.
Standard of review. The standard of review of a grant of summary judgment is de novo. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215, 786 N.E.2d 817 (2003). Summary judgment is appropriate where, "viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Lev v. Beverly Enters.–Mass., Inc., 457 Mass. 234, 237, 929 N.E.2d 303 (2010), quoting Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358, 676 N.E.2d 815 (1997). The burden rests on the moving parties, here the defendants, to demonstrate "the absence of triable issues by showing that the party opposing the motion has no reasonable expectation of proving an essential element of its case" (citation omitted). Boazova v. Safety Ins. Co., 462 Mass. 346, 350, 968 N.E.2d 385 (2012).
Factual background.6 In 2005, LaPlante executed a Massachusetts health care proxy that conformed to the statutory form, see G. L. c. 201D, naming Gallagher as his agent and giving her unlimited authority "if [his] attending physician determines in writing that [he] lack[s] the capacity to make or to communicate health care decisions." Pursuant to the proxy, Gallagher made all health care decisions for LaPlante. He had good days and bad days in terms of his ability to speak with others. LaPlante also could be combative at times, to the point of bruising Gallagher. Gallagher also had LaPlante's power of attorney.
In June 2015, Gallagher read in the Weymouth Senior Center bulletin about a "Friendly Visitor Program," a program where "someone comes to your house and gives the caregiver a break for an hour or two, and just sits with the elder." On Friday, June 19, and Monday, June 22, Gallagher called the senior center and asked if any volunteers were available in the future to stay with LaPlante while she went grocery shopping. Elder Outreach Services Weymouth employee Ann Bessette, whose duties included "help[ing] people get help or mak[ing] referrals" for services, told Gallagher she would need to check with her volunteer coordinator.7 For reasons not clear in the record, Bessette's response to Gallagher's request for assistance was to arrive unannounced on Tuesday, June 23,8 at the home of Gallagher and LaPlante with Pompeo as a police escort, for a "wellness check."9 Pompeo "felt it would be best for Ms. Bessette" if Pompeo went along because it was her opinion that Gallagher "ha[d] been confrontational in the past."10
When Pompeo and Bessette arrived at the home, they saw LaPlante seated in his wheelchair by the open front door, appropriately dressed, appearing well cared for, and eating food from a Burger King restaurant. Gallagher came to the door and told the pair that she had gone grocery shopping earlier that afternoon but LaPlante became combative, "hitting and punching" her, and refused to get out of the car. Gallagher therefore asked a man and woman who were walking together in the parking lot to sit with LaPlante while she shopped. Gallagher took her car keys and the individuals’ Massachusetts identifications into the store with her. She left the windows of the car down because it was "wonderful" "summer weather," in which she had dressed LaPlante in a light sweater. She watched them from the door of the market but not while walking through all of the aisles. When she came out of the store a short time later, LaPlante was teaching the woman the rosary.
Upon hearing this information, Pompeo demanded the names of the individuals. Gallagher provided the full name of the woman and the last name of the man. Pompeo obtained information indicating that the woman had two active warrants for violations of G. L. c. 209A abuse prevention orders and eleven arraignments for crimes such as fraud, larceny, and disorderly conduct. She was known to the Weymouth police as a narcotics user. Pompeo believed the male was one of two brothers, both of whom had multiple arraignments on their records for crimes such as armed assault. Pompeo "advised Ms. Gallagher that her actions as Mr. LaPlante's caretaker were inexcusable" given these individuals’ histories, and stated that she would be filing a § 15 report with South Shore Elder Services. Nothing in the record indicates that Gallagher or LaPlante received written notification that an investigation would follow the § 15 report.
Pompeo filed a § 15 report with South Shore Elder Services the same day, June 23, because she believed that Gallagher leaving LaPlante "with two people that she doesn't know in a hot car without keys in it" showed "that Gallagher makes poor decisions." 11
South Shore Elder Services, the agency designated by EOEA to investigate reports where Gallagher lived, declined to investigate Pompeo's report, so EOEA asked ESCC to do so.12 ESCC assigned Schoener. Schoener testified at her deposition that her agency had five days to make contact with LaPlante under G. L. c. 19A, §§ 15 - 24, and 651 Code Mass Regs. §§ 5.00, a statutory and regulatory framework that is set forth in more detail below. For now, it suffices to say that Schoener's understanding that she had five days suggests Pompeo's § 15 report was screened for a "regular" response rather than an "emergency" or "rapid" one. See 651 Code Mass. Regs. § 5.10(2)(d) (1998).
On Wednesday, June 24, Schoener called the home of Gallagher and LaPlante and left a message that Gallagher received at 4:30 P.M. Gallagher "immediately" called her lawyer, who returned Schoener's call and left a message, which Schoener did not return. Schoener and her supervisor agreed that Schoener should make an unannounced home visit with a police officer to meet with LaPlante. Around 10 A.M. the next day, June 25, Pompeo and Schoener arrived at the home of Gallagher and LaPlante to conduct an unannounced visit.
Gallagher and LaPlante had a morning...
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