The Maine Supreme Judicial Court on Tuesday refused to clear an emergency room physician of a Richmond woman’s claim that he had violated her civil rights by depriving her of liberty without due process and subjecting her to an unreasonable search.
The case now continues in Kennebec County Superior Court.
Dr. Scott Kemmerer is one of two defendants remaining in a lawsuit filed by Linda J. Clifford about her treatment at MaineGeneral Medical Center’s emergency department in Augusta on Sept. 25 and 26, 2007. The hospital itself is the other defendant.
Kemmerer, through attorney Christopher Taintor, had asked the court’s justices to order that the claims against him be dismissed. He maintains he did nothing wrong and also that he is immune to lawsuit because he was carrying out a governmental function by evaluating Clifford.
The Maine Supreme Judicial Court heard oral arguments in the case April 7 in Portland.
The 5-0 decision, written by Associate Justice Donald Alexander, denied Kemmerer’s claim of qualified immunity “because on the summary judgment record, there are at least disputes as to material fact as to whether Kemmerer deprived Clifford of liberty without due process of law and violated her statutory rights … and violated her right to be free from unreasonable searches.”
He noted several times in his opinion that at this point in the legal process, the facts are construed “in the light most favorable to Clifford.”
Alexander outlined the series of events that led Kemmerer’s voluntarily signing herself into MaineGeneral Medical Center in Augusta for a 24-hour period.
Clifford, who has a mental disability described as “complex post-traumatic stress disorder,” was taken to the Augusta hospital twice after sending three emails Sept. 25, 2007, to then-Gov. John Baldacci, railing against budget cuts affecting mental health service agencies.
Clifford later said she never intended for the emails to be threatening.
Clifford, now 54, said she was picked up by two state troopers and brought from her Litchfield home for a second psychiatric evaluation within less than eight hours at the same hospital and strip-searched by male security guards. She said she was forced to sign herself into the hospital for 24 hours or be involuntarily committed for 72 hours. She was released the next day when a psychiatrist cleared her. Clifford later moved from Litchfield to Richmond.
Kemmerer’s attorney, Christopher Taintor, told the judges that Kemmerer became involved in the case “very late in the game” and understood that Clifford needed an evaluation after police returned her to the emergency department.
Taintor said there was miscommunication between state police and Crisis & Counseling, but that the agency wanted Clifford taken back to the hospital. An unnamed employee at Crisis & Counseling apparently asked that Clifford remain at the hospital. However, she already had been discharged by emergency department personnel and had left.
In the written opinion, Alexander outlined the law, saying, “The statute provided no authority for administrators of a hospital or a social service agency to overrule the opinion of the professional examiner and order continued detention of an individual despite the professional examiner’s opinion, following an appropriate examination, that emergency hospitalization was unnecessary.”
Alexander also wrote that forcing Clifford to choose between a voluntary 24-hour commitment and a 72-hour involuntary one suggests “that the references to voluntary commitment were part of a broader effort, in violation of the emergency commitment law, to pressure Clifford to relinquish her fundamental rights.”
Alexander said Kemmerer’s move to keep Clifford at the hospital after she was cleared “was objectively unreasonable and ‘transgressed’ Clifford’s statutory and due process rights” and that she was illegally searched in violation of her rights.
The lawsuit returns to the superior court on those claims and another one against Kemmerer as well as a claim against MaineGeneral. Justice Donald Marden has been assigned to the case, which was filed in September 2009.
Kemmerer no longer works at MaineGeneral Medical Center and is living outside Maine, his attorney said.
Another defendant in the case, Dr. Harry Grimmnitz, already was dismissed. Taintor represented him as well.
Curtis Webber, Clifford’s attorney, previously said a separate claim by Clifford against Crisis & Counseling Centers was settled previously.
He also said the experience of being returned to the hospital worsened Clifford’s PTSD.
Neither Webber nor Taintor were at their offices or available for comment on Tuesday’s decision.
In connection with different claims by Clifford involving the same incident, the Maine Human Rights Commission voted in August 2009 against finding reasonable grounds to believe Clifford was discriminated against by either Crisis & Counseling Centers, Inc., or MaineGeneral Medical Center because of her mental disability.
Betty Adams — 621-563