Bennett, Thomas S.

English

University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 36 | Number 4 Article 216-1-1958Torts -- Physicians and Surgeons -- Liability forSigning a Certificate of Insanity Without ProperExamination of the Alleged LunaticThomas S. BennettFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationThomas S. Bennett, Torts -- Physicians and Surgeons -- Liability for Signing a Certificate of Insanity Without Proper Examination of theAlleged Lunatic, 36 N.C. L. Rev. 552 (1958).Available at: http://scholarship.law.unc.edu/nclr/vol36/iss4/21NORTH CAROLINA LAW REVIEWIt appears that the facts of the principal case bring it clearly withinCategory III discussed above; vi., the peril of the plaintiff was notactually discovered by the defendant, but should have been; the plaintiffwas physically unable to prevent his injury through the exercise of duecare. That being the case, both the weight of precedents and the sounderreasoning would seem to have required a reversal of the nonsuit whichwas granted below. The weight to be given to the contrary result,considering the court's orthodox statement of the rule,3' must awaitfurther decisions.LUKE R. CORBETTTorts-Physicians and Surgeons-Liability for Signing a Certificateof Insanity Without Proper Examination of the Alleged LunaticIn Bailey v. McGill' the North Carolina Supreme Court held thattwo physicians in signing certificates of insanity under G.S. § 122-432were absolutely immune from civil liability to an alleged mentally dis-ordered plaintiff.3 The rationale of the court was that the defendantphysicians were protected by the absolute privilege given to witnesses forstatements made by them in a judicial proceeding.The plaintiff alleged that the defendant physicians did not make an3 "Liability on the new act arises after the defendant has had sufficient op-portunity, in the exercise of ordinary care, to discover and to appreciate the plain-tiff's perilous position in time to avoid injuring him." 247 N.C. at 498, 101 S.E.2dat 317.1247 N.C. 286, 100 S.E.2d 860 (1957).'N.C. GEN. STAT. § 122-43 (1952). This statute provides: "When an affidavitand request for examination of an alleged mentally disordered person has beenmade... the clerk of the superior court . . . shall direct two physicians .. . toexamine the alleged mentally disordered person . . . to determine if a state ofmental disorder exists and if it warrants commitment to one of the State hospitalsor institutions for the mentally disordered. If the said physicians are satisfiedthat the -alleged mentally disordered person should be committed for observationand admission into a hospital for the mentally disordered, they shall sign anaffidavit to that effect . .. .The institution of the lunacy proceeding is provided for by N.C. GEN. STAr.§ 122-42 (1952) : "When it appears that a person is suffering from some mentaldisorder and is in need of observation or admission in a State hospital, somereliable person having knowledge of the facts shall make before the clerk of thesuperior court of the county in which alleged mentally disordered person is orresides,. . . an affidavit that the alleged mentally disordered person is in need ofobservation or admission in a hospital for the mentally disordered ...."' The court held as to a third defendant physician that the plaintiff had stateda cause of action for abuse of process under N.C. GEN. STAT. § 122-42 (1952), be-cause it was alleged that this physician through ill will and malice toward theplaintiff persuaded the plaintiff's parents to institute the lunacy proceeding andstate that plaintiff was suffering from a mental disorder and was in need ofobservation and admission to a mental institution. However, on retrial of theissue in the Cleveland County Superior Court the case against this physician wasdismissed after the close of plaintiff's evidence, evidently on the ground that theevidence was insufficient to go to the jury. It is not known whether an appeal wastaken from this decision.(Vol. 36NOTES AND COMMENTSexamination of him as required by G.S. § 122-43; or if an examina-tion were made, it was a hasty and superficial one and not a bona fideexamination as required by the statute. As a result of these certificatesof insanity and this allegedly wrongful and negligent conduct on thepart of the defendants, plaintiff was committed to the State Hospitalfor the Insane by the Clerk of the Superior Court of Cleveland Countyand forced to remain there for thirty days, at the end of which time itwas concluded that he was not insane and never had been. For hishumiliation in becoming known as a mental case, plaintiff demandedboth compensatory and punitive damages. The supreme court held thatthe trial judge correctly sustained the defendants' demurrer for failureto state a cause of action.Plaintiff conceded that the allegations in his complaint did not setout a cause of action for malicious prosecution, 4 abuse of process, orfalse imprisonment;8 however, he maintained that he had stated a causeof action for "a false certificate of insanity made by two of the de-fendants," and another cause of action for "a certificate of insanitynegligently made without proper and ordinary care and prudence, andwithout due examination and inquiry and proof."' 7 But the court, with-out stating its reason, rejected this contention, and said, "The nature ofhis allegations and charge against these two physicians would seem tobe that of libel."" The court then proceeded to hold that the defendantswere witnesses in a proceeding of a judicial nature before an officerclothed with judicial powers and were therefore absolutely privileged,because "a defamatory statement made by a witness in the due course ofa judicial proceeding, which is material to the inquiry, is absolutely privi-leged, and cannot be made the basis of an action for libel or slander, eventhough the testimony is given with express malice and knowledge ofits falsity." The construction of G.S. § 122-46,10 which gives the clerk" Barnette v. Woody, 242 N.C. 424, 431, 88 S.E.2d 223, 227 (1955), where thecourt said "the plaintiff must prove malice, want of probable cause and terminationof the prosecution or proceeding in plaintiff's favor." Accord, Fisher v. Payne,93 Fla. 1085, 113 So. 378 (1927) ; Brandt v. Brandt, 286 Ill. App. 151, 3 N.E.2d96 (1936).'Barnette v. Woody, supra note 4; Ledford v. Smith, 212 N.C. 447, 193S.E. 722 (1937). There was no allegation that the defendants had an ulteriorpurpose or that they committed an act in the use of the process not proper in theregular prosecution of the proceeding.' Fisher v. Payne, 93 Fla. 1085, 113 So. 378 (1927); Ussery v. Haynes, 344Mo. 530, 127 S.W.2d 410 (1939); Dyer v. Dyer, 178 Tenn. 234, 156 S.W.2d 445(1941). It was not alleged that the commitment was without lawful authority.But see Bacon v. Bacon, 76 Miss. 458, 24 So. 968 (1899), where two physicianswere held liable for false imprisonment in a lunacy proceeding; however, theproceeding was not held to be judicial in nature and the court did not discuss theelements of false imprisonment.7247 N.C. at 290, 100 S.E.2d at 860.8 Id. at 293, 100 S.E.2d at .866.°Id. at 293, 100 S.E.2d at 866. Accord, Jarman v. Offutt, 239 N.C. 468, 801958]NORTH CAROLINA LAW REVIEWof the superior court the judicial authority to hold a hearing, to examinethe certificates and affidavits of the physicians and any proper witnesses,and to commit the alleged mentally disordered person to a mental in-stitution, was the foundation upon which the application of the witnessprivilege rule rested. Examining the certificates of the physicians sub-mitted pursuant to G.S. § 122-43 was necessary to the performance ofthis judicial authority; therefore, the physicians were deemed to bewitnesses before a judicial hearing and were absolutely privileged intheir testimony. The court said the defendants "were not engaged in theordinary practice of their profession. Their role and function in ex-amining the plaintiff and signing the affidavits in respect to his mentalcondition are those of witnesses."'"In holding the defendants' affidavits absolutely privileged, the courtplaced North Carolina in accord with the weight of authority in thisarea.12  Since insanity is often hard to determine with certainty, publicpolicy and the administration of the law require that the certifyingphysician b6 protected rather than the injured plaintiff who has beennegligently committed to a mental institution as a lunatic.'3 The courtsfeel that public policy requires that the witness physician be allowedto testify without fear of being sued by one whose interests may beadversely affected by his testimony.14 It would tend to extend litigationif the matter could be reexamined in a new action, thereby causing multi-plicity of suits.15In addition to public policy, some courts say that the plaintiff canS.E.2d 248 (1954) ; RESTATEMENT, TORTS § 588 (1938).The witness privilege rule applies to affidavits submitted to the court as wellas to testimony given orally in court. Perry v. Perry, 153 N.C. 266, 69 S.E. 130(1910).10 N.C. GEm. STAT. § 122-46 (Supp. 1957).111247 N.C. at 292, 100 S.E.2d at 866. Accord, Dunbar v. Greenlaw, 128 A.2d218 (Me. 1956) ; Niven v. Bolan, 177 Mass. 11, 58 N.E. 282 (1900)." Fisher v. -Payne, 93 Fla: 1085, 113 So. 378 (1927) (absolute privilege as toaffidavit); Corcoran v. Jerrel, 185 Iowa 532, 170 N.W. 776 (1919) (absoluteprivilege as to oral testimony); Dunbar v. Greenlaw, supra note 11 (absoluteprivilege) ; Mezullo v. Maletz, 331 Mass. 233, 118 N.E.2d 356 (1953) (absoluteprivilege as to affidavit); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954)(absolute privilege, but negligent examination not alleged). Cf. Niven v. Bolan,supra note 11 (conditional privilege); Perkins v. Mitchell, 31 Barb. (NY) 461(1860) (conditional privilege).13 Brandt v. Brandt, 286 Ill. App. 151, 3 N.E.2d 96 (1936) ; Dunbar v. Green-law, mpra note 11; Niven v. Bolan, supra note 11.1 Niven v. Bolan, 177 Mass. 11, 14, 58 N.E. 282, 283 (1900), where thecourt said: "It is more important that the administration of the law in the mannerprovided should not be obstructed by the fears of physicians that they may renderthemselves liable to suit than it is that the person certified by them to be insane,or a diposomaniac, or inebriate should be a right of action in case it turns outthat the certificate ought not to have been given." See Mezullo v. Maletz, 331Mass. 233, 118 N.E.2d 356 (1953); Godette v. Gaskill, 151 N.C. 51, 65 S.E.2d612 (1909)." Niven v. Bolan, mspra note 14; Godette v. Gaskill, mtpra note 14.[Vol. 36NOTES AND COMMENTSget redress in a criminal court if the physician commits perjury.'6 Someof the cases mention state statutes which provide for criminal punish-ment if the plaintiff is wrongfully committed as a result of a conspiracybetween the physician and a third person.17Some other opinions join with the majority view and hold thephysician not liable because there was no proximate cause between theexamination of the plaintiff, the signing of the certificate of insanity, andcommitment by the officer with such authority.' These cases proceedon the reasoning that the committing authority could commit the allegedlunatic even though it did not rely on the affidavits of the physicians;therefore, it cannot be said that the affidavits of the physician causedthe wrongful commitment.19 The commitment was the sole act of thecommitting authority.20 However, this reasoning has been criticizedand said to be contrary to the theory of proximate cause as set out inPalsgraf v. Long Island R.R.2 ' by Judge Cardozo.2 2There is a very persuasive minority view2 3 which imposes liabilityon the physician on the ground that in examining the plaintiff he hasassumed a statutory duty to use ordinary care and will be liable to theplaintiff for any breach of the duty.24 This view is led by the Englishdecisions; however, the commitment statutes in these cases were lessprotective of the alleged lunatic and therefore there was more reasonto hold the physician responsible.25 The only American decision follow-1" Dunbar v. Greenlaw, 128 A.2d 218 (Me. 1956) ; Godette v. Gaskill, supra note14 (dictum) at 52, 65 S.E. at 613." Dunbar v. Greenlaw, supra note 16; Mezullo v. Maletz, 331 Mass. 233, 118N.E.2d 356 (1953); Niven v. Bolan, 177 Mass. 11, 58 N.E.2d 282 (1900).18 Mezullo v. Maletz, 331 Mass. 233, 118 N.E.2d 356 (1953) ; Force v. Probasco,43 N.J.L. 539 (1881) ; Everett v. Griffiths, [1920] 3 K.B. 163, 1 A.C. 631 (1921)(distinguished in Harnett v. Fisher, [1927] 1 K.B. 402) ; Brady v. Collom, 68 R.I.299, 301, 27 A.2d 311, 312 (1942) (dictum).'0 Ibid.10 Mezullo v. Maletz, supra note 18.21248 N.Y. 339, 162 N.E. 99 (1928).2"2Notes, 53 MIcH. L. REV. 493 (1954), 23 U. CIN. L. REv. 525 (1954)."Ayers v. Russell, 50 Hun. 282, 3 N.Y. Supp. 338 (1888) ; Springer v. Steiner,91 Ore. 100, 178 Pac. 592 (1919) (action for false imprisonment not allowed be-cause plaintiff did not show lack of good faith on part of the physician.) ; Williamsv. Le Bar, 149 Pa. 149, 21 Atl. 525 (1891) (but no recovery allowed because thephysician made a mere error in judgment) ; Harnett v. Fisher, [1927] 1 K.B. 402;Hall v. Semple, 3 F. & F. 337, 176 Eng. Rep. 151 (Q.B. 1862) ; Miller v. West,165 Md. 245, 247, 167 At. 696, 697 (1933) (dictum). See also Pennell v. Cum-mings, 75 Me. 163 (1883)." Ayers v. Russell, supra note 23 at -, 3 N.Y. Supp. at 341, where the courtsaid: "Their [the physicians] duty must be measured by the trust which thestatute reposes in them, and by the consequences flowing from its improper per-formance. They assumed the duty by accepting the trust. They are not judicialofficers, but medical experts. They . . . are chargeable with that negligence whichattaches to a professional expert who does not use the care and skill which hisprofession, per se, implies that he will bring to his professional work."2" Harnett v. Fisher, [1927] 1 K.B. 402; Hall v. Semple, 3 F. & F. 337, 176Eng. Rep. 151 (Q.B. 1862).In Hall v. Semple, supra, the alleged lunatic could be committed to a mental1958]NORTH CAROLINA LAW REVIEW [ing this view imposed liability on the theory that the privilege shouldapply only after the physician has exercised ordinary care in examiningthe plaintiff :26 "Their privilege is that, so long as they do their duty withthe care and skill the statute presumes and requires, they are not re-sponsible to the plaintiff for the consequences, however harsh they maybe; for in such a case the law afflicts the plaintiff, but when they do notuse such care and skill it is their personal negligence which afflictshim." 27 This type of reasoning separates the testimony or affidavit ofthe physician from the examination. The testimony is privileged, butthe physician is held liable for ordinary negligence in the examination.Under these decisions, the plaintiff is not only given redress at law, buthe is less likely to receive a cursory examination, thereby reducing thelikelihood of a sane person's being committed to an institution.28In answer to the majority view that public policy requires that thephysician be protected, the language of the court in Bacon v. Bacon29appears to be a pertinent reply:A sad, silent, and fragile little lady, now beyond middle life,wrongfully declared a lunatic, and that of the most repulsive style,shut up in a mad house .... and with a stigma branded upon hername and character which verdicts of juries and judgments ofcourts may never wholly efface, and with endurance of such shame,humiliation, and crucifixion of soul as happily does not often fallto woman's lot, has appealed to the courts for redress of herwrongs, and we do not feel authorized to take from her the poorfruits of her victory.30The suit was one for false imprisonment and the court does not considerthe witness privilege rule, but the language of the court seems to offera persuasive argument for balancing public policy in favor of the allegedlunatic.In the principal case, there does not seem to be any doubt that thelunacy proceeding conducted by the clerk of the superior court wasa judicial proceeding.3 ' It reasonably follows that the role and functioninstitution on the basis of the physician's certificate alone. His case was not re-viewed by legal authorities until after the commitment. In Harnett v. Fisher,supra, however, a relative of the plaintiff made the petition, a physician signedthe certificate, and the justice appointed for that purpose to perform the duty madethe reception order. This procedure is more similar to the North Carolinastatutes.Ayers v. Russell, 50 Hun. 282, 3 N.Y. Supp. 338 (1888).Id. at -, 3 N.Y. Supp. at 341.28 Note, 53 MIcH. L. REv. 493 (1954)." 76 Miss. 458, 24 So. 968 (1899).30 Id. at 472, 24 So. at 971." Corcoran v. Jerrell, 185 Iowa 532, 170 N.W. 776 (1919) ; Perkins v. Mitchell,31 Barb. (N.Y.) 461 (1860); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248(1954); Dyer v. Dyer, 178 Tenn. 234, 156 S.W.2d 445 (1941); 33 Am. JuR.,Libel and Slander § 148 (1941) ; 53 C.J.S., Libel and Slander § 104(h) (1948).[Vol. 36NOTES AND COMMENTSof the physicians in examining the plaintiff and signing the certificatesof insanity expressing their opinion as to the mental condition of theplaintiff were those of witnesses. But although the law protects thephysician for what he says in the course of a judicial proceeding, thecommon law also imposes a duty upon him to use due care in thepractice of his profession.3 2 Surely, the legislature did not intend toclothe the physician with authority to examine the plaintiff as to hismental condition and recommend that he be committed to a mentalinstitution and at the same time abolish this common law duty he owedto the plaintiff to use due care in examining him. It would appear tobe more logical to say that the legislature intended to supplement thecommon law duty with a statutory duty to exercise due care in examiningthe plaintiff. The defendants should be privileged in whatever theytestified to in the lunacy proceeding, but the duty to examine properlythe plaintiff under G.S. § 122-43 should be an entirely separable roleand function to be performed by them, not as witnesses, but as menof professional skill who are required to use due care in examining theplaintiff as a patient. It is therefore submitted that, although the plain-tiff did not state a cause of action for signing a libelous certificate ofinsanity, he did state a cause of action for negligence in preparing thecertificate of insanity without first properly examining the plaintiff asto his mental condition.By allowing a cause of action for negligence the court could havebalanced the interests between the plaintiff and the defendants. Thephysicians would be allowed to testify freely at the hearing beforethe clerk of the superior court without fear of a vexatious law suit froma dissatisfied party, but the court would impose upon them a statutoryand professional duty of exercising ordinary care and skill in examiningthe plaintiff, thereby rendering it more likely that the plaintiff wouldnot be confined in a mental institution without first being properlyexamined as to his mental condition. The end result is compliancewith the legal maxim that "for every wrong there is a remedy."THOMAS S. BENNETT"Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609 (1942) ; Parkell v. Fitzporter,301 Mo. 217, 256 S.W. 239 (1923y; Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183(1940) ; PROSSER, TORTS § 31 (2d ed. 1955) ; 41 A%. JuR., Physicians and Surgeons§§ 73, 79 (1942) ; 70 C.J.S., Physicans and Surgeons § 36 (1951).1958]

Torts -- Physicians and Surgeons -- Liability for Signing a Certificate of Insanity Without Proper Examination of the Alleged Lunatic

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Torts -- Physicians and Surgeons -- Liability for Signing a Certificate of Insanity Without Proper Examination of the Alleged Lunatic

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