9th Cir. Urged to Revive Patient-Dumping Case

     SAN FRANCISCO (CN) — The Ninth Circuit is considering whether to revive a lawsuit against a Nevada psychiatric hospital accused of dumping mentally ill patients on treatment providers in other states.
     The Ninth Circuit on Monday heard arguments regarding the potential reopening of a 2014 federal lawsuit filed by Nevada resident James Brown after the state-run Rawson-Neal Psychiatric Hospital in Las Vegas bused him to Sacramento for treatment.
     Brown had sought help during a psychotic episode that rendered him suicidal, his attorney, Mark Merin told the three-judge panel.
     U.S District Judge James Mahan dismissed the case in February 2014, saying it was doubtful the federal court has jurisdiction to hear claims he said arose “purely under Nevada state law.”
     Mahan also dismissed Brown’s Emergency Medical Treatment and Active Labor Act claim, saying he did not demonstrate any personal harm he suffered, and Rawson-Neal gave him enough medication to last until he reached Sacramento, where he obtained emergency treatment at the University of California at Davis Medical Center.
     Brown appealed Mahan’s ruling to the Ninth Circuit five months later, saying the judge erred in dismissing the EMTALA and federal civil rights claims.
     “Indigent, psychotic and suicidal, Mr. Brown was involuntarily admitted to Rawson-Neal, Nevada’s state hospital in Las Vegas, and after two days escorted to the door, placed in a waiting taxi, and directed to board a Greyhound bus for transport to a strange city, where he knew nobody … with a plastic bag of medication, three bottles of ensure, no identification, no money, and a one-page discharge note that said ‘Call 911 upon arrival,'” attorney Mark Merin told the panel.
     Merin said at least 1,500 other psychiatric patients have been released from Rawson-Neal Psychiatric Hospital and sent to cities across the country. Some get off the bus and commit suicide. Some are never heard from again, and others have been “severely abused,” Merin said.
     “This is not the kind of case there the public’s interest should be totally disregarded,” Merin said. “Brown came in on an emergency basis, suicidal and psychotic. There is no basis for the court to imagine some other possibility.”
     He said the Eighth Amendment violation claims are strong, because the hospital is supposed to help, but instead banished Brown to another state, as are Fourth Amendment claims that Brown’s treatment amount seizure.
     Linda Anderson, of the Nevada Attorney General’s office represented all defendants but one individual, and told the panel plaintiffs were given the opportunity to amend the federal complaint, but Judge Susan Graber said she didn’t understand how Mahan justified dismissing the complaint.
     Anderson said the Mahan gave plaintiff attorneys two opportunities to amend the complaint, but Graber said Brown stated at least one claim that should have been addressed.
     If the dismissal amounts to an abuse of discretion by Mahan, Graber said the court should look at the pleading and determine whether or not any claims were stated and reach the merits.
     Anderson said the federal and constitutional claims were not properly briefed, and Brown is trying to change the way courts determine jurisprudence regarding treatment of people with mental illness.
     “I find that very disturbing, because we have lots of people in our society with mental illness who are on medication who are free to travel about the country, who are free to do things,” Anderson said.
     Graber said the question before the court is where the case should go.
     Representing defendant Dr. Linda White, attorney David Pruett said Brown did not raise or assert a point in his opening appellate brief, and the law waives it if it’s not properly briefed.
     Pruett said there was no injury to Brown, and the medications provided to him were anti-psychotic and intended to address his mental state. Because there was no injury, there is no jurisdiction over any claims, Pruett said.
     In rebutting defendant attorneys, Merin said upon Mahan’s dismissal of the complaint only said the judgment was entered with prejudice based upon the claims, and that’s the reason for the appeal.
     Judge J. Clifford Wallace said the court must follow the Ninth Circuit rules that say if a party does not include something in an opening brief, it cannot rely on reply briefs.
     Merin said that would be an “irrational” application of a rule that waived the right to proceed with a case that had been fully briefed and well-represented.
     Wallace, however, said the panel took an oath and must follow the court’s precedence, rather than Merin’s belief.
     “I don’t think you are bound, your honor, to do something that is totally irrational, contrary to the public policy, contrary to the interest of the public,” Merin said.
     The three judge panel of Graber, Wallace and Barbara M.G. Lynn heard the oral arguments Monday morning.

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