Judge Throws Out Case of Psychiatric Patients Bused to Other States to Save Money
By Phillip Reese and Cynthia Hubert
A federal judge on Thursday dismissed a civil lawsuit brought on behalf of a patient who was bused to Sacramento from a Nevada state psychiatric hospital in Las Vegas.
Rawson-Neal Psychiatric Hospital discharged James Flavy Coy Brown via Greyhound bus last February to Sacramento, where he had no connections and no arrangements for treatment or housing waiting for him. Brown's story was the impetus for a series of investigative reports in The Sacramento Bee that found the hospital had shipped about 1,500 psychiatric patients to states across the nation in a five year period.
Those patients were put alone on buses for trips that often spanned multiple states and days. Many were sent to cities where they had no treatment or support. Some ended up homeless in their new location. Others were violent offenders who committed crimes in their new communities.
In the wake of The Bee's reports, Rawson-Neal lost its accreditation and its treatment protocols have been the focus of ongoing reviews by state and federal agencies. The hospital, Nevada's primary facility for mentally ill people, remains in danger of losing its federal Medicare funding, pending demands for improvements.
Sacramento attorney Mark Merin, joined by the American Civil Liberties Union of Nevada, filed a class-action lawsuit against Nevada on behalf of Brown and hundreds of other patients bused out of state by the hospital, contending the practice was a form of "patient dumping" and violated their civil rights. Merin said his research had turned up dozens of former patients with similar stories.
In dismissing the lawsuit, U.S. District Court Judge James C. Mahan, whose district spans the state of Nevada, ruled that state officials didn't compel Brown to get on a bus to Sacramento. Instead, he wrote, Nevada merely gave him the means to leave: a bus ticket.
"The coercive power of the state was not imposed on (Brown)," Mahan wrote in an 11-page decision. "There was no direct command from an individual bearing state coercive authority, nor threat of punishment if (Brown) did not travel to Sacramento."
Nevada has a right to institute a busing policy that "best allocate(s) scarce financial resources," Mahan added.
Mahan's decision largely affirmed the arguments made by Nevada Attorney General Catherine Cortez Masto asking that the lawsuit be dismissed.
Brown, who suffers from schizophrenia, had been living homeless in Las Vegas for years when he ended up at Rawson-Neal with symptoms of psychosis last February. He spent 72 hours in the observation unit, he later told The Bee, before a doctor told him he might enjoy "sunny California" and discharged him to the Las Vegas Greyhound station. His discharge orders noted he should be given a three-day supply of Thorazine, Klonopin and Cymbalta to treat his schizophrenia, anxiety disorder and depression, plus "Ensure and snacks for a 15-hour bus ride."
Following a bus trip that spanned multiple stops over three days, Brown arrived in Sacramento carrying his bus schedule and discharge papers from Southern Nevada Adult Mental Health Services, the hospital's umbrella agency. Brown said hospital staffers had told him to dial 911 when he arrived.
Instead, he wound up at the Loaves & Fishes homeless services complex on North C Street, confused and talking of suicide, according to staffers there. With their help, he made it to UC Davis Medical Center, where he spent two nights in the emergency room, while hospital staff searched for more permanent psychiatric treatment and housing. He spent time at two boarding homes in the Sacramento area before his daughter, alerted to his plight when The Bee contacted her, took him home to North Carolina, where he still lives.
In the lawsuit, Merin contends that discharging Brown to a bus violated the Eighth Amendment of the U.S. Constitution outlawing "cruel and unusual punishment," saying the hospital was indifferent to Brown's unstable psychological state.
Mahan, who was appointed to the federal bench by President George W. Bush, unequivocally rejected that argument.
"This view stretches the Eighth Amendment beyond its previously recognized limits," he wrote, "and would effectively require hospitals to indefinitely provide free care to all patients to avoid 'punishing' them by forcing them out into the harsh existence of the real world."
Merin also hoped to convince Mahan that Brown's treatment violated the federal Emergency Medical Treatment and Active Labor Act, often called the "anti-dumping" law. Under the act, a hospital emergency room must screen a patient for an emergency medical condition and, if one exists, stabilize the patient before discharge. A patient who suffers "personal harm" due to a violation of the law can sue.
But, Mahan wrote, Brown "fails to articulate that he suffered any personal harm as a direct result of (Rawson-Neal's) failure to comply with this section. Indeed, (Brown's) account indicates that (Rawson-Neal) gave him enough medication to last the entire trip to Sacramento, and that shortly after he arrived, he was treated at the University of California at Davis Medical Center."
In an interview Thursday, Merin took issue with Mahan's reasoning, saying Brown was confused and heavily medicated and in no condition to take responsibility for his care or ignore doctors' orders that he head to Sacramento. He said he and Brown are considering their options, including an appeal or filing a new lawsuit in state court.
"We're certainly not giving it up," he said.
Lisa Ikemoto, a professor at UC Davis who specializes in health care law, said Mahan's ruling suggests that, in order for Brown to ultimately be successful, he would need to prove that Rawson-Neal's decision to bus him out of state caused him personal harm, even though he eventually got medical care in Sacramento. He also would need to show that he "was forced against his will" to get on the bus, she said.
Mary Woods, spokeswoman for the Nevada Department of Health and Human Services, issued a short response to the ruling. "We are pleased to learn of the decision," she said in an email. "The judge's dismissal speaks for itself."
Rawson-Neal revised its busing protocols last April, saying it no longer would bus patients across state lines without chaperones. But state officials have generally defended the decades-old program, contending the vast majority of patients were bused to their "home communities" and only after Rawson-Neal staff had contacted family at the destination and made arrangements for treatment and care.
The Bee tracked down numerous former patients and their families who disagreed, asserting that the hospital made no such arrangements, and in some cases sent former patients to cities where they had tenuous ties, or none at all. Many former patients interviewed by The Bee ended up on the streets, at public hospitals or in shelters, which essentially shifted the burden of their care from Nevada to their destination cities.
San Francisco City Attorney Dennis Herrera has filed a separate lawsuit against Nevada that seeks reimbursement for the cost of caring for patients Rawson-Neal bused to that city who ended up in taxpayer-funded treatment or housing. The suit is still pending in San Francisco Superior Court, said Herrera's spokesman, Matt Dorsey.
"None of the claims Judge Mahan dismissed in the private class-action lawsuit were raised in San Francisco's case," Dorsey said, adding that Herrera is suing on behalf of several local governments in California. "These are very different lawsuits."
(c)2014 The Sacramento Bee