{ "id": 8554831, "name": "ELIZABETH KAY McLEAN v. DR. PAUL SALE", "name_abbreviation": "McLean v. Sale", "decision_date": "1978-11-07", "docket_number": "No. 7730SC1037", "first_page": "520", "last_page": "524", "citations": [ { "type": "official", "cite": "38 N.C. App. 520" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "48 N.C.L. Rev. 412", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1970, "opinion_index": 0 }, { "cite": "373 P. 2d 109", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1962, "opinion_index": 0 }, { "cite": "60 Wash. 2d 196", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1031586 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/wash-2d/60/0196-01" ] }, { "cite": "262 S.W. 2d 431", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10189060 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/sw2d/262/0431-01" ] }, { "cite": "21 A. 525", "category": "reporters:state_regional", "reporter": "A.", "year": 1891, "opinion_index": 0 }, { "cite": "141 Pa. 149", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 974858 ], "year": 1891, "opinion_index": 0, "case_paths": [ "/pa/141/0149-01" ] }, { "cite": "241 N.Y.S. 2d 497", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1963, "opinion_index": 0 }, { "cite": "39 Misc. 2d 712", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1126566 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/misc2d/39/0712-01" ] }, { "cite": "123 N.Y.S. 725", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 5620804 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/nys/123/0725-01" ] }, { "cite": "139 App. Div. 207", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2506701 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/ad/139/0207-01" ] }, { "cite": "167 A. 696", "category": "reporters:state_regional", "reporter": "A.", "year": 1933, "opinion_index": 0 }, { "cite": "165 Md. 245", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2193413 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/md/165/0245-01" ] }, { "cite": "177 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551963 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0490-01" ] }, { "cite": "100 S.E. 2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "247 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626848 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/247/0286-01" ] }, { "cite": "228 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 47", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547330 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0047-01" ] }, { "cite": "80 S.E. 2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627345 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0468-01" ] }, { "cite": "243 S.E. 2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552868 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0268-01" ] }, { "cite": "178 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "10 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550559 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/10/0022-01" ] }, { "cite": "209 S.E. 2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563517 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0089-01" ] }, { "cite": "189 S.E. 2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575723 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0604-01" ] } ], "analysis": { "cardinality": 567, "char_count": 9003, "ocr_confidence": 0.779, "pagerank": { "raw": 2.442825669244923e-07, "percentile": 0.8032234697853041 }, "sha256": "b42d6eb42df740508f617d4a1fed1ece1aa849f556cbd16feff5f58029e02c95", "simhash": "1:e30f22828d63e716", "word_count": 1460 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge BROCK and Judge CLARK concur." ], "parties": [ "ELIZABETH KAY McLEAN v. DR. PAUL SALE" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nPlaintiffs verified complaint was properly considered as ant affidavit. Schoolfield v. Collins, 281 N.C. 604, 189 S.E. 2d 208 (1972). Facts asserted by the plaintiff must be accepted as true in considering defendant\u2019s motion. Railway Co. v. Werner Industries, 286 N.C. 89, 209 S.E. 2d 734 (1974). The record must be considered in the light most favorable to the plaintiff in passing upon defendant\u2019s motion for summary judgment. Patterson v. Reid, 10 N.C. App. 22, 178 S.E. 2d 1 (1970).\nConsidering the record in this case with these principles in mind, we hold there are material questions of fact for a jury and that plaintiff\u2019s complaint states a claim upon which relief can be granted. The judgment must be reversed.\nBefore summary judgment may be had, the record must affirmatively show that not only would the moving party be entitled to judgment from the evidence before the court, but it must also show there can be no other evidence from which a jury could reach a different conclusion as to a material fact. Goode v. Tait, Inc., 36 N.C. App. 268, 243 S.E. 2d 404 (1978).\nThe holdings in Jarman v. Offutt, 239 N.C. 468, 80 S.E. 2d 248 (1954); Mazzucco v. Board of Medical Examiners, 31 N.C. App. 47, 228 S.E. 2d 529 (1976); and Bailey v. McGill, 247 N.C. 286, 100 S.E. 2d 860 (1957), have been ably argued by counsel. These authorities are not controlling on the facts of the case before this Court. Plaintiff\u2019s suit is not bottomed on what defendant stated in his certificate.\nIn brief, plaintiff alleges: (1) defendant had a statutory duty to examine her before issuing plaintiff\u2019s Exhibit \u201c1\u201d; (2) defendant failed to make the required examination and thus violated the duty to plaintiff; (3) plaintiff suffered damages as a result of defendant\u2019s breach of duty. The evidence before the court tended to show that plaintiff was not mentally ill or imminently dangerous to herself or others. She was examined by a medical doctor at Broughton Hospital on 7 December 1976 at about two o\u2019clock, three days after she was taken into custody. She was released on the same day from the hospital and the commitment proceedings dismissed 9 December 1976.\nN. C. Gen. Stat. 122-58.4 reads in part: \u201cThe qualified physician shall examine the respondent as soon as possible . . ..\u201d (Emphasis added.) The statute imposes a positive duty on the defendant to make the examination before signing the certificate. This statute further reads: \u201cIf the physician finds that the respondent is mentally ill . . . and is imminently dangerous to himself or others . . . the law-enforcement officer shall take the respondent to a community mental health facility . . . pending a district court hearing.\u201d (Emphasis added.) It is the finding by the physician in his certificate that directly results in the restraint of respondent (here, plaintiff). No further hearing is held by the clerk of superior court as formerly required by statute. Before the 1974 revision of Chapter 122 of the General Statutes, the clerk was required to have at least an informal hearing after receiving the physician\u2019s certificate of examination and evaluation. The respondent was entitled to notice, to be present and offer evidence. If the clerk was then satisfied confinement was required, he could issue the order of commitment. N.C. Gen. Stat. 122-46 (repealed 1973 N.C. Sess. Laws).\nIt is noted in Samons v. Meymandi, 9 N.C. App. 490, 177 S.E. 2d 209 (1970), the Court held failure of the certifying physician to verify his certificate under oath was a sufficient violation of N.C.G.S. 122-59 to hold the confinement based upon that certificate deprived plaintiff of her liberty without legal process and sustained plaintiff\u2019s claim for false imprisonment. The defendant Sale\u2019s actions are within the holding in Samons.\nIt is the purpose of the statute that only mentally ill persons in need of restraint be deprived of their liberty. This can only be assured by the doctor making the required examination before executing the certificate. An intentional or negligent violation of this duty cannot be the subject of immunity. The physician is not communicating when he fails to make the examination. Plaintiff\u2019s action is not one of libel.\nPlaintiff\u2019s complaint is sufficient to place defendant on notice of a claim for damages for negligent or intentional breach of his statutory duty. Pretrial discovery procedures provide defendant with ample means of more precise and detailed investigation of plaintiff\u2019s alleged cause.\nLitigants are no longer bound to fit their causes within the ancient \u201cforms of action.\u201d By adopting the Rules of Civil Procedure, North Carolina has avoided the spectre of the \u201cforms of action [ruling] us from their graves.\u201d F. Maitland, The Forms of Action at Common Law 2 (1954).\nThe following jurisdictions hold liability of a physician can be established with respect to his wrongful certification of a person to an institution for treatment of the mentally ill. Miller v. West, 165 Md. 245, 167 A. 696 (1933); Warner v. Parker, 139 App. Div. 207, 123 N.Y.S. 725 (1910); Kleber v. Stevens, 39 Misc. 2d 712, 241 N.Y.S. 2d 497 (1963); Williams v. LeBar, 141 Pa. 149, 21 A. 525 (1891); Daniels v. Finney, Tex. Civ. App., 262 S.W. 2d 431 (1953). See also, Benjamin v. Havens, Inc., 60 Wash. 2d 196, 373 P. 2d 109 (1962). For a discussion of physician\u2019s liability in wrongful certification for admission to mental institutions, see 48 N.C.L. Rev. 412 (1970).\nArticle I of the North Carolina Constitution (1971), Section 18 of the DECLARATION Of Rights, states: \u201c[EJvery person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.\u201d\nThe summary judgment is reversed.\nReversed and remanded.\nChief Judge BROCK and Judge CLARK concur.", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Roberts, Cogburn and Williams, by Max 0. Cogburn, Jr., for plaintiff appellant.", "Morris, Golding, Blue and Phillips, by William C. Morris, Jr., for defendant appellee." ], "corrections": "", "head_matter": "ELIZABETH KAY McLEAN v. DR. PAUL SALE\nNo. 7730SC1037\n(Filed 7 November 1978)\nInsane Persons \u00a7 1; Physicians, Surgeons and Allied Professions \u00a7 11\u2014 wrongful certification to mental hospital \u2014sufficiency of evidence\nPlaintiff\u2019s complaint was sufficient to state a claim for relief against a medical doctor for wrongful certification of plaintiff for admission to a mental hospital where it alleged that defendant certified that he had examined plaintiff pursuant to 6.S. 122-58.4 and found her to be mentally ill and imminently dangerous to herself or others when in fact defendant had not made an examination of plaintiff.\nAPPEAL by plaintiff from Griffin, Judge. Judgment entered 12 September 1977 in Superior Court, SWAIN County. Heard in the Court of Appeals 21 September 1978.\nThis is an appeal from a summary judgment entered against the plaintiff in an action seeking damages for wrongful commitment to a mental institution.\nPlaintiff alleged in her verified complaint the defendant is a duly licensed medical doctor practicing in Swain County; on 3 December 1976, defendant completed and signed a QUALIFIED Physician Examination And Evaluation form concerning plaintiff, the form being attached to the complaint as Exhibit \u201c1\u201d; defendant stated in the form that he had examined plaintiff on 3 December 1976 at 11:50 a.m. and recommended plaintiff be admitted to Broughton Hospital; defendant did not examine plaintiff on 3 December 1976, or at any other time, and has never examined plaintiff; plaintiff was committed to said hospital where she remained until discharged 7 December 1976; defendant knew his signing of the exhibit would cause plaintiff to be committed to Broughton Hospital; plaintiff has suffered mental anguish and compensatory and punitive damages by reason of defendant\u2019s actions.\nDefendant has not filed an answer. Defendant filed motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.\nUpon the hearing of defendant\u2019s motion in Haywood County, the court had before it the verified complaint; Exhibit \u201c1,\u201d the certificate of the defendant; petition for involuntary commitment dated 3 December 1976 and sworn to by Linda H. Dills; custody order of William G. Burrett, magistrate, dated 3 December 1976 at 11:45 a.m.; officer\u2019s return on custody order showing it to be received 3 December 1976 and executed by taking the respondent (plaintiff herein) into custody at 1:05 p.m. on 3 December 1976 and presenting her to qualified physician for examination at 1:10 p.m., same date; notice of hearing dated 7 December 1976; QUALIFIED Physician Examination And Evaluation certificate signed and sworn to on 7 December 1976; CERTIFICATE OF DISCHARGE; dismissal order in proceeding signed 9 December 1976 by district court judge.\nJudge Griffin treated the motion to dismiss as a motion for summary judgment under Rule 56, North Carolina Rules of Civil Procedure. He found facts and dismissed plaintiffs action.\nRoberts, Cogburn and Williams, by Max 0. Cogburn, Jr., for plaintiff appellant.\nMorris, Golding, Blue and Phillips, by William C. Morris, Jr., for defendant appellee." }, "file_name": "0520-01", "first_page_order": 548, "last_page_order": 552 }