2004-555, HEIDI CARLISLE v. FRISBIE MEMORIAL HOSPITAL AND JOHN JACKSON, M.D.

Hampshire Patients’ Bill of Rights Act (PBR), RSA 151:19 -:31 (1996); (2) (EMTALA), 42 U.S.C. § 1395dd (2000), and her claims under the New under the federal Emergency Medical Treatment and Active Labor Act submitting to the j ury the plaintiff’s professional negligence claim, her claims On appeal, the defendants argue that the trial court erred by: (1)

affirm. defendants, Frisbie Memorial Hospital (Frisbie) and John Jackson, M.D. We awarding a verdict for the plaintiff, Heidi Carlisle, on her claims against the GALWAY, J. This appeal follows a jury trial in Superior Court (Mohl, J.)

for the defendants. O'Shaughnessy and Robert J. Meagher on the brief, and Mr. Meagher orally), McDonough & O'Shaughnessy, P.A., of Manchester (Michael B.

brief and orally), for the plaintiff. Backus, Meyer, Solomon & Branch LLP, of Manchester (Jon Meyer on the

No. 2004 - 555 Strafford

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

suicidal intent and alcohol intake.” Officer Macaione then led the plaintiff out stating, “Heidi Carlisle is medically cleared to enter protective custody for Outside of the plaintiff’s presence, Dr. Jackson gave one of the officers a note, Another officer arrived at the hospital to assist Officer Macaione.

then informed her that he was going to take her to jail, and handcuffed her. waste of time and mon ey, since she admitted to being drunk. Officer Macaione she had suicidal thoughts, and that she thought a blood - alcohol test was a would take a blood - alcohol test. She answered that she was intoxicated, that regarding her alcohol consumption, her suicidal thoughts, and whether she Macaione what he was doing there, and he responded by asking her qu estions Macaione of the Rochester Police Department. The plaintiff asked Officer exited the room for the second time, the next person into the room was Officer called the police. He never told the plaintiff t hat he intended to do so. After he During one of the two intervals in which Dr. Jackson left the room, he

examining room and did not attempt to leave. manner during her interactions with him. After he left, she was alone in the counselor or psychologist; she had not acted in a disruptive or d isorderly She testified that she assumed he meant that he was going to find another again declined. He told her that he was going to get her help and left the room. minutes later and asked, again, if she w ould see Strafford Guidance. She any other counselor or psychologist. He then left the room. He returned a few Strafford Guidance Center through her work. She told him that she would see the hospital. She declined the offer, stating that she was involved with the Guidance Center, an organization that treats patients with mental illnesses in hanging herself. He asked if she wanted to see a counselor from the Strafford She told him that she had been drinking and had suicidal thoughts involving Dr. Jackson, the department physician on duty, saw her a few minutes later. Upon arrival, a hospital employee led the plaintiff to an examining room.

because she knew that it advertised mental health services. room at approximately midnight. S he chose Frisbie because it was nearby and suicidal. Desiring treatment for her condition, she drove to Frisbie’s emergency evening, she drank more alcohol and became increasingly depressed and During the day of May 6, p. 2 2000, the plaintiff consumed alcohol. That

a teenager. feelings of depression and thoughts of a sexual assault that she experienced as of alcohol abuse and mental illness. When she drank alcohol, it often elicited The jury could have found the following facts. The plaintiff had a history

remittitur. read into evidence at trial; and (4) refusing to grant defendants’ motion for and damages; ( p. 3 3) refusing to allow Dr. Jackson’s discovery deposition to be submitting erroneous jury instructions on EMTALA, professional negligence, 3

emergency room patients. Correa v. Hospital San Francisco, 69 F. p. 3 3d 1184, of federal Medicare funding take certain steps to ensure appropriate care for below. Enacted in 1986, EMTALA requires that hospitals receiving the benefit An overview of the EMTALA statute gives context to our determinations

plaintiff on all three counts. Jackson; and ( p. 3 3) violation of the PBR against Frisbie. The jury found for the violation of EMTALA agains t Frisbie; (2) professional negligence against Dr. The plaintiff brought three causes of action against the defendants: (1)

Frisbie. called a friend late at night crying because of the betrayal that she felt at intoxicated. She experienced a loss of appetite and, on multiple occasions, fire department because she anticipated being fired after showing up to work care business that she ran. The plaintiff also resigned from her job at the local state affected the quality of her work and caused her to miss work at the child heavily, and her depression and thoughts of suicide intensified. Her me ntal postpone seeing a therapist for months. During that time, she drank more also testified that the betrayal that she felt after seeing Dr. Jackson made her reluctant to trust any medical professionals or see a therapist. The plaintiff worsened. Her therapist testified that her experience at Frisbie made her As a result of the events of May 6 and 7, the plaintiff’s mental illness

the afternoon of M ay 7. After their meeting, the police released her. was there. A counselor from Strafford Guidance Center met her at the jail on During that time, she felt betrayed, depressed, and confused about why she approximately fourteen hours without food, water, or medical treatment. cell and anyone walking by in the hallway. She was in the ja il cell for When the plaintiff used the toilet, she was exposed to both the woman in the and a sink. There was another woman in the cell, who was asleep on the bed. said “no.” The guard placed her in a cell wi th a concrete slab for a bed, a toilet, then searched her. She asked if she could make a phone call, and the guard approximately 1:00 a.m. A guard at the jail kicked her feet apart, frisked her, Officer Macaion e drove the plaintiff to the Strafford County Jail at

hospital. also felt embarrassed as people watched Officer Macaione lead her out of the betrayed because he never warned her of the possibility of going to jail. She Straf ford Guidance Center. Upon exiting the hospital, she felt depressed and jail was the alternative, she would have agreed to see a counselor from her taken to jail. The plaintiff testified that, had Dr. Jackson informed her that that she disliked him and that she hated him for calling the police and having of the hospital. On the way out, the plaintiff saw Dr. Jackson. She told him p. 4 4

Practice, Civil Practice and Procedure § p. 4 48.12, at 331 (1984) (stating, “[a] (1926) (citations and quotations omitted); 5 R. Wiebush, New Hampshire Derosier v. New England Telephone & Telegraph Co., 82 N.H. 405, 405 - 06

the evidence was closed on both sides. soon as the evidence for the plaintiff was closed, or, at l atest, when was open to him, and which in fairness he ought to have taken as jury were closed, and then first avail himself of an objection that no t lie by until after the evidence, arguments, and charge to the an opportunity to supply the deficiency . . . . [T]he defendant could evidence is waived unless taken at a time when there may still be The well - established rule is that an objection to the sufficiency of

raising them on appeal. We agree. The plaintiff argues that Frisbie waived these issues and is preclud ed from EMTALA; and, second, that Frisbie improperly “transferred” the plaintiff. Id. of an EMTALA claim: first, that Frisbie was a “participating hospital” under which a reasonable jury could find that she satisfi ed the following two elements Frisbie asserts that the plaintiff did not present sufficient evidence from

A. Waived Objections

Correa, 69 F.3d at 1190.

condition. tran sferring her) without first stabilizing the emergency medical (whether by turning her away, discharging her, or improvidently emergency medical condition, or (b) bade farewell to the patient an appropriate screening in order to determine if she had an treatmen t; and (3) the hospital either (a) did not afford the patient treatment facility); (2) the patient arrived at the facility seeking EMTALA, that operates an emergency department (or an equivalent (1) that the hospital is a participating hospital, covered by

prove: § 139 p. 5 5dd(b)(1)(B), (c)(1). To establis h a violation of EMTALA, the plaintiff must medically advisable. Correa, 69 F.3d at 1190; s ee also p. 4 42 U.S.C. patient to another medical facility when such a transfer is relatively safe and the patie nt as necessary to stabilize the patient’s condition, or transfer the medical condition, EMTALA requires that the hospital either examine and treat at 1190; see also 42 U.S.C. § 1395dd(a). If the patient has an emergency admitted to the emergency room seeking medical assistance. Correa, 69 F.3d requires emergency rooms to take is to properly screen, or exam ine, all patients Act, 16 J. Legal Med. 325, 325 - 26 (Sept. 1995). The first step that EMTALA Analysis of the Impact of the Emergency Medical Treatment and Active Labor 1189 (1st Cir. 1995); see also 42 U.S.C. § 1395dd; Furrow, An Overview and 5

condition.” Correa, 69 F.3d at 1190. improperly transferred her without first “stabilizing” her “emergency medical condition” and that the defendants either turned her away, d ischarged her, or plaintiff to prove that she arrived at the hospital with an “emergency medical Frisbie disputes prong (3)(b) of the Correa test, which requires the

citations omitted). Carignan v. N.H. Int’l Speedway, 1 p. 5 51 N.H. 409, 413 - 14 (2004) (quotations and

verdict could stand. overwhelmingly in favor of the moving party that no contrary viewed in the light most favorable to the nonmoving party, is so inferen ce that may be drawn from the evidence, which must be entitled to a directed verdict only when the sole reasonable sufficient evidence in the record supports the ruling. A party is is extremely narrow. We will uphold a denial of the motion where Our review of a t rial court’s denial of a motion for a directed verdict

jury could find that Frisbie did not “stabilize” the plaintiff under EMTALA. arguing that the plaintiff failed to present evidence from which a reasonable Frisbie appeals the trial court’s denial of its motion for directed verdict,

B. Stabilization

elements of EMTALA. of evidence presented to support the “participation” and improper “transfer” conclude, therefore, that Frisbie waived its objections regarding the sufficiency were closed,” and the n raised its objections. Derosier, 82 N.H. at 406. We Frisbie, “[lay] by until after the evidence, arguments, and charge to the jury trial court of opportunities to expediently correct the deficiency of evidence. of the evidence objections until after the jury instruction, Frisbie deprived the either “participation” or improper “transfer.” By waiting to raise its sufficiency directed verdict at the close of its case. Frisbie did so, but again failed to raise Addi tionally, the trial court gave Frisbie the opportunity to renew its motion for 239:1, RSA 172 - B:1, and deterioration of condition under EMTALA. moved for directed verdict, raising such issues as the PBR, damages, RSA prior to that point. For instance, after the close of plaintiff’s evidence, Frisbie objections regarding the plaintiff’s proof of particip ation and improper transfer instructions. The record reveals ample opportunity for Frisbie to have raised either “participation” or “transfer” until after the trial court gave the jury Frisbie failed to raise its suffi ciency of the evidence objections regarding

under advisement or the jury is charged”). the moving party’s opponent has been presented and before the case is taken Motion for Directed Verdict may be filed at any time after all the evidence for p. 6 6

needed stabilization of her intoxication with alcohol.” When asked whether the patient needed stabilizing of her suicidal ideation and plan, and she also to stabilize her included expert testimony from a defense witness that “[t]his The evidence supporting th e plaintiff’s assertion that the hospital failed

stability for psychiatric patients). Cir. 2003) (applying the Health Care Financing Administration’s definition of others.” Thomas v. Christ Hosp. and Medical Center, 328 F.3d 890, 893 (7th EMTALA “when he/she is no longer considere d to be a threat to him/herself or A psychiatric patient is considered stable for purposes of discharge under the transfer of the individual from a facility . . . .” 42 U.S.C. § 1395dd(e)(3)(A). material deterioration of the condition is likely to result from or occur during may be necessary to assure, within reasonable medical probability, that no defines “stabilize” as “to provide such medical treatment of the condition as “stabi lized” the plaintiff before transferring her out of the hospital. EMTALA We next consider the evidence regarding whether Frisbie properly

health was in imminent danger. We agree. found the above evidence sufficient to support a finding that the plaintiff’s there was an “over riding concern about the patient’s safety.” The trial court alcohol withdrawal. Further, an expert witness of the defendants testified that intoxicated patients’ vital signs to check for seizure or other serious effects of also presented expert testimony that emergency room physicians monitor to themselves, and that they require persistent monitoring in safe rooms. S he suicidal patients are common in emergency rooms, that they pose a health risk plan to carry out her suicide. She presented expert testimony that intoxicated, her testimony that she arrived at Frisbie intoxicated and feel ing suicidal with a otherwise. The plaintiff’s evidence of her emergency medical condition includes medical condition,” and that the plaintiff provided insufficient evidence to prove Frisbie argues that the plaintiff’s dep ression was not an “emergency

(D. P.R. 2000) (quotations omitted). disability.” Pagan - Pagan v. Hospital San Pablo, Inc., 97 F. Supp. 2d 199, 203 an emergency medical condition if he is in imminent danger of death or serious 42 U.S.C. § 1395dd (e)(1)(A). “Under this definition, a patient w ill suffer from

dysfunction of any bodily organ or part . . . . jeopardy, (ii) serious impairment of bodily functions, or (iii) serious re sult in – (i) placing the health of the individual . . . in serious immediate medical attention could reasonably be expected to sufficient severity (including severe pain) such that the absence of a medical condition manifesting itself by acute symptoms of

defines an “emergency medical condition” as: plaintiff had an “emergency medical condition” unde r EMTALA. EMTALA We first consider whether the evidence supports a finding that the p. 7 7

judgment of the officer is intoxicated . . . the officer may take I. When a peace officer encounters a person who in the

B:3. RSA 1 p. 7 72 - B:3 provides: We now address Frisbie’s claim that EMTALA does not preempt RSA 172 -

Koor, 148 N.H. at 621 (quotation s omitted). accomplishments and execution of the full purpose and objective of Congress.” federal requirements or where state law stands as an obstacle to the exi sts when it is impossible for a private party to comply with both state and and a state law conflict, EMTALA preempts the state law. “An actual conflict of state laws is incorrect. The provision explicitly states that when EMTALA U.S.C. § 1395dd(f). Frisbie’s argument that EMTALA disclaims all preemption the requirement directly conflicts with a requirement of this section.” 42 do not preempt any State or local law requirement, except to the extent that EMTALA’s preemption provision provides, “The provisions of this section

actually conflict.” Id. (quotations omitted). in a particular field to the federal government; or (3) state and federal la w Congress implicitly supplants state law by granting exclusive regulatory power preempted where: (1) Congress expresses an intent to displace state law; (2) (2002). “Under the Supremacy Clause of the Federal Cons titution, state law is review de novo. Koor Communication v. City of Lebanon, 1 48 N.H. 618, 620 The trial court’s determination of preemption is a matter of law, which we

the plaintiff into protective custody. argues that RSA 1 p. 7 72 - B:3 (1994) justifies Frisbie in contacting the polic e to take from civil liability, even if the state statute conflicts with EMTALA. Frisbie statutes; therefore, a state statute that justifies Frisbie’s conduct should bar it Frisbie argues that, as a matter of law, EMTALA doe s not preempt state

C. Preemption – Justification

motion for directed verdict. stand. We therefore agree with the trial court’s decision to deny Frisbie’s so overwhelmingly i n favor of Frisbie that no verdict contrary to Frisbie’s could Reviewed in the light most favorable to the plaintiff, the evidence is not

were to perform a brief examination and offer for her to see Strafford Guidance. only st eps that Dr. Jackson took to treat her condition before calling the police entitled “stable” was unchecked. Additionally, the plaintiff testified that the was “transferred to jail,” that her condition was “unchanged,” and a box her life.” The medical records from Frisbie state that the plaintiff’s disposition placed in protective custody, because her psychiatric instability was a threat to custody, defendants’ expert witness testified, “Yes, and that is why she was plaintiff was psychiatrically unstable when she left the hospital for protective p. 8 8

fact, and to inform the jury of the appropriate legal standards by The purpose of jury instructions is to identify issues of material

We review the adequacy of jury instructions as follows:

transferri ng the plaintiff out of the hospital. for the plaintiff and ignored the other statutes that could have applied to treatment.” Frisbie argues that this instruction essentially directed a verdict failed to transfer the plaintiff to a medical facility for appropriate medical instruction on EMTALA misled the jury: “[Y]ou must find that the hospital Frisbie argues that the following portion of the trial court’s jury

D. Preemption - Jury Instruction

EMTALA, and that EMTALA preempted it. circumstances of this case, w e determine that RSA 172 - B:3 conflicted with the hospital to ignore ETMALA’s stabilization requirement. Under the execution of Congress’ purpose in enacting EMTALA, because it would permit person to jail before that person is stabilized would stand as an obstacle to the removing an intoxicated, unstabilized person from the hospital and take that § 1395dd(c)(1). For a hospital to summon a police officer for the purpose of circumstances, none of which Frisbie claims occurred. 42 U.S.C. stabilize a patient before transferri ng that patient, except in limited 2005). To accomplish this goal, EMTALA provides that a hospital must Rodriguez v. American Intern. Ins. Co. of Puerto Rico, 402 F.3d 45, 47 (1st Cir. first assessing or stabilizing the patients’ emergency conditions. E.g., enacting EMTALA was to prevent hospitals from transferring patients without 172 - B:3, I(c) permits. It is well established that one of Congress’ purposes in an actual conflict between EMTALA and the conduct that Frisbie argues RSA Applying the definition of “actual conflict,” we determ ine that there was

out of Frisbie and putting her in jail. permitted the defendants to call the police for the purpose of taking the plaintiff co nduct in contacting the police. Frisbie contends that RSA 172 - B:3, I(c) Frisbie argues that, as a matter of law, RSA 172 - B:3, I(c) justified its

of the public, the individual, or both: officer, the most appropriate to ensure the safety and welfare whichever of the following actions is, in the judgment of the such person into pr otective custody and shall take p. 9 9

to take reasonable precautions to prov ide protection from, a I. A physician licensed under this chapter has a duty to warn of, or

Duty to Warn,” RSA 32 p. 9 9:31 provides: (1995) provides a complete defense to civil liability. Entitled, “Civil Liability; should not have gone to the jury because, as a matter of law, RSA 329:31 Dr. Jackson first argues that the plaintiff’s professional negligence claim

II. Professional Negligence

have been misled. accurately exp lained the law of EMTALA in such a way that the jury could not this requirement. We therefore conclude that the trial court’s instruction has violated EMTALA. See id. The disputed jury instruction adequately stated option under EMTALA, but it must be to another medical facility or the hospital requirements. As for the disputed instruction, transfer from a hospital is an elements that the trial court stated before it, encompassed EMTALA’s safety.” Rodriguez, 402 F.3d at 47. The disputed instruction, and the two to another facility is medically indicated and can be accomplished with relative necessary to stabilize the patient’s condition . . . unless transferring the patient condition exists, the participating hospital must render the services that are an incorrect statement of law. EMTALA requires that, “if an emergency medical We disagree with Frisbie’s argument that the disputed jury instruction is

the disputed instruction. from an emergency room before her emergency condition stabilized”; and (3) medical condition”; (2) “next y ou must find that the plaintiff was transferred find that the plaintiff presented to the emergency room with an emergency three elements required for proving an EMTALA violation: (1) “you must first proving an EMTALA violation. The trial court instructed the jury that there are context, we conclude that the trial court stated it as one element required for to find an inappropriate transfer. Examining the disputed instruction in characterizes the instruction as a command from the court requiring the jury By isolating one sentence of the trial court’s EMTALA inst ruction, Frisbie

Broughton v. Proulx, 152 N.H. ___, ___, 880 A.2d 388, 3 p. 9 94 (2005).

in such a way that the jury could have been misled. entirety, fails to explain adequately the law applicable to the case jury instructions in context to determine if the charge, taken in its is done to the legal rights of the parties. In a civil case, we review of law if it fairly presents the case to the jury such that no injustice which it is to resolve t hem. A jury charge is sufficient as a matter p. 10 10

same person. The victim already knows of the danger. threat of suicide, because the potential attacker and potential victim are the Catholic Med. Ctr., 145 N.H. 7, 11 (2000). There is no w arning necessary for a violence against a clearly identified or reasonably identifiable victim.” Powell v. violent behavior when the client has communicated a serious threat of physical embraced by RSA 329:31 is limited to a phys ician’s duty to warn of a client’s threats of suicide. We have previously recognized that “[t] he subject matter A plain reading of RSA 329:31 reveals that the statute does not apply to

(2005). statutory scheme.” Hughe s v. N.H. Div. of Aeronautics, 152 N.H. 30, 38 - 39 in enacting them, and in light of the policy sought to be advanced by the entire aid our analysis. Our goal is to apply statutes in light of the legislature’s intent omitted). “If a st atute is ambiguous, however, we consider legislative history to Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005) (citations

the legislature did not see fit to include. consider what the legislature might have said or add language that beyond it for further in dication of legislative intent, and we will not a statute’s language is plain and unambiguous, we need not look ascribe the plain and ordinary meanings to the words used. When first examine the language of the statute, and, where possible, expressed in the words of the statute considered as a whole. We de novo. We are the final arbiters of the legislature’s intent as The interpretation of a statute is a question of law, which we review

We apply the following standard of review for statutory interpretation:

required him to do so to satisfy his statutorily create d duty to warn. concludes, he was not negligent in calling the police because RSA 329:31, II a “clearly identified victim” under RSA 329:31, I. Therefore, Dr. Jackson contemplated suicide was a “s erious threat of physical violence” and made her Dr. Jackson argues that the plaintiff’s statement that she had

commitment of the client to the state mental health system. closest to the client’s or potential victim’s residence, or obtains civil the threat to the victim or victims, noti fies the police department chapter if the physician makes reasonable efforts to communicate cause of action may arise against, a physician licensed under this II. The duty may be discharged by, and no monetary liability or

threat of substantial damage t o real property. identified or reasonably identifiable victim or victims, or a serious physician a serious threat of physical violence against a clearly client’s violent behavior when the client has communicated to such p. 11 11

Group, Inc., 139 N.H. 698, 699, (1995). We therefore apply the same standard trial, and they are governed by identical standards.” Thompson v. The H.W.G. the verdict are essentially the same, tho ugh made at different stages of the “Motions for directed verdict and motions for judgment notwithstanding

notwithstanding the verdict below. suicide. Dr. Jackson raised this argument in his motion for judgment protective custody was reasonably necessary t o thwart the plaintiff’s potential proved that he had a reasonable belief that the minimal force involved with be necessary to thwart such a result.” Dr. Jackson argues that he sufficiently himself may use a degre e of force on such person as he reasonably believes to person is about to commit suicide or to inflict serious bodily injury upon VI, which states: “A person acting under a reasonable belief that another complete defense to civil liability. Dr. Jackson primarily relies on RSA 627:6, should not have gone to the jury because RSA chapter 627 (1996) provided a Dr. Jackson argues that the plaintiff’s professional negligence claim

B. RSA Chapter 627

interpretation of RSA 329:31 as a complete defense to liability in this case. reasons, the trial court did not err in declining to adopt Dr. J ackson’s of action for patients who subsequently commit suicide. For the above increase, rather than decrease, physician liability by creating a potential cause suicide victims of their own threa ts to kill themselves. Doing so would interpret RSA 329:31 as imposing on physicians a duty to warn potential be contrary to our goal of advancing the policies of a statutory scheme to them with a manner in which they could satisfy their duties to warn. It would legislature intended to reduce the liability of medical professionals by providing commitment.” N.H.H.R. Jour. 622 (1986). This language shows that the providers contact the threatened victim, or the police, or seek civil liability of certain medical and mental health pro viders . . . so long as the report on the bill containing RSA 329:31 states, “This bill limits the civil third person. Additionally, we note that the House Judiciary Committee’s RSA 329:31’s duty of care to arise was clearly when a patient threatened a Persons.” Laws 1986, ch. 175. The context in which the legislature intended 329:31 as part of a bill entitled “An Act Relative to a Duty to Protect Third with the legislative intent for the statute. The House and Senate enacted RSA Even if there is ambiguity in RSA 329:31, our interpretation comports

Lyndeborough v. Boisvert Properties, 150 N.H. 814, 819 (2004). interpret the statutory scheme to yield this seemingly illogical result. Town of suicide victims that they have threaten ed to kill themselves. We will not discharge their duties of protecting the victim simply by informing potential victim.” RSA 329:31, II. It would be illogical for the statute to allow doctors to duty to warn is to “make[] reasonable efforts to communicate the threat to the Further, one way in which RSA 329:31 allows a physician to satisfy the p. 12 12

member in order to protect the p atient or others from injury. restraints may be authorized by the designated professional staff protect a patient or others from injury. In an emergency, authorizes it in writing, for a specific and limited time necessary to chemical and physical restraints on a patient when he or she Under New Hampshire law, a physician is authorized to use

The trial court gave the following jury instruction:

N.H. at ___, 880 A.2d at 394 - 95, that we set forth above. We review the jury i nstruction under the standard from Broughton, 152

to caregivers, contrary to section IX of the PBR. the plaintiff against her will at the hospital; and (2) erroneously granted rights asserts that the instruction: (1) erroneously imposed upon him a duty to hold professional negligence was erroneous as a matter of law. Specifically, he Dr. Jackson argues that the trial court’s jury instruction regarding

C. Jury Charge

the verdict. discretion when it denied Dr. Jackson’s motion for judgment notwithstanding The trial court, therefore, did not commit an unsust ainable exercise of overwhelmingly in favor of the defendant that no contrary verdict could stand. the light most favorable to the plaintiff, we find that the evidence is not so custody instead of pursuing other treatment options. Viewing this evidence in Dr. Jackson violated his duty of care by placing the plaintiff in protective treated the plaintiff and kept her safe from harm. These experts testified that who stated th at there were less harmful ways in which Dr. Jackson could have suicide.” We disagree. At trial, the plaintiff presented two expert witnesses necessary “should be undisputed, as the plaintiff in fact did not commit Dr. Jackson simply states that whether his use of force was reasonably necessary to thwart the plaintiff’s attempt at suicide. To sup port his argument, that he objectively believed that he applied a degree of force reasonably reasonable inference that may be drawn from the evidence presented at trial is F or Dr. Jackson to prevai l on appeal, he must show that the sole

honest, was in fact reasonable under all the circumstances. Id. defense. Id. It is for the jury to determine whether the belief, even though A belief that is unreasonable, even though honest, will not support this determine using an objective standard. State v. Leaf, 137 N.H. 97, 99 (1993). he uses to thwart an attempt at suicide be reasonably necessary, which we RSA 627:6, VI requires that the defendant believe that the degree of force

directed verdict. for sufficiency of the evidence that we used to address Frisbi e’s motion for p. 13 13

negligence claim. Frisbie relies upon In re “K”, p. 13 132 N.H. 4 (1989), for this of action under the PBR that would be independent from a standard medical for the tri al court to find that the legislature intended to create a private right creating an independent cause of action. There was no basis, Frisbie asserts, Frisbie argues that the trial court erred by interpreting the PBR as

III. Patients’ Bill of Rights

the jury such that no injustice was done to the legal rights of the parties. that the jury could have been misled. The charge fairly presented the case to instruction inadequately explained the law applicable to the case in such a way We therefore conclude that Dr. Jackson failed to prove that the

a right to restrain p atients. were erroneous because they misled the jury into thinking that physicians have restrain patients, it is untenable for Dr. Jackson to argue that the instructions the pat ient. Since the trial court quoted from a statute allowing physicians to caregivers the right to protect the patient or others from injury by restraining the second sentence of section IX of the PBR are identical. Both grant misinterpreted the PBR. The second sentence of the disputed instruction and patients contrary to the PBR. We conclude th at Dr. Jackson has to caregivers when the PBR does not grant any rights to caregivers to restrain Dr. Jackson next argues that the trial court’s instruction granted rights

no language in the charge that does so. explain why he believes the trial court’s charge creates a duty, a nd we can find Town of Hudson v. Baker, p. 13 133 N.H. 750, 752 (1990). Dr. Jackson does not language. American Exp. Travel v. Moskoff, 144 N.H. 190, 191 (1999); see also instruction. Generally, it is the word “sh all” that imposes a duty in statutory PBR. Further, t he words “duty” or “shall” are not present in the disputed imposed a duty upon him, particularly any duty not already imposed by the Dr. Jack son points to no language in the disputed jury instruction that

protect the patient or others from injury. authorized by the designated professional staff member in order to patient or others from injury. In an emergency, restraints may be physician for a sp ecific and limited time necessary to protect the restraints except when they are authorized in writing by a The patient shall be free from chemical and physical

in pertinent part: This jury instruction is based upon section IX of the PBR, which states, p. 14 14

they could not procure the witness to testif y, stating: “I interpret Rule 804 to The trial court found that the defendants did not adequately show that

Publow, 129 N.H. 117, 120 (1987). adequately shows that he cannot procure the witness to testify. LeBlanc v. 804(a)(5), therefore, permits admission of a deposi tion only if the proponent . . . by process or other reasonable means.” N.H. R. Ev. 804(a)(5). Rule of the witness’ statement has been unable to procure the witness’ attendance “unavailable” when the w itness “is absent from the hearing and the proponent or deposition. Barrows v. Boles, p. 14 141 N.H. 382, 394 (1996). A witness is unavailable witness when the witness gave that testimony at another hearing Rule 804(b)(1) creates a hearsay exception for the prior testimony of an

unreasonable to the prejudice of a party’s case.” Id. trial court’s determination “only if the rulings are clearly untenable or exercise of discretion” standard. Carignan, 151 N.H. at 416. We reverse the We review a tria l court’s evidentiary rulings under an “unsustainable

Hampshire Rules of Evidence. show that Dr. Jackson was “unavailable” pursuant to Rule 804(b)(1) of the New The defendants argue, in conclusory fashion, that the letter was sufficient to counsel by letter, with no re turn address, that he would not appear at trial. Jackson in 2001. Several weeks before trial, however, he informed defense Dr. Jackson’s discovery deposition as evidence. Both parties deposed Dr. The defendants next argue that the trial court erred by declining to admit

IV. Dr. Jackson’s Deposition

E. question of whether there was professional negligence under RSA chapter 507 private cause of action for violation of the PBR, which is separate from the therefore, is misplaced, because the statutory language plainly establishes a caused by the violations.” RSA 151:30, II. Frisbie’s reliance upon In re “K”, this subdivision and the facility shall be liable for . . . all damages proximately “[d]amages shall be assessed in a proceeding against a facility which violates hospital. Entitled “Equitable and Other Relief,” RSA 151:30 provides th at action is incorrect. The PBR explicitly provides for private relief against a Frisbie’s argument that the PBR does not establish a private right of

above. Woodview, 152 N.H. at 1 16; Hughes, 152 N.H. at 38 - 39. We apply the standards for statutory interpretation that we set forth

under RSA chapter 507 - E (1997). purport to establish a standard of care in a professional negligence action proposition, arguing that this case states in dicta that the PBR does not p. 15 15

damages awarded. we should not consider such damage claims when revie wing the amount of reluctance to seek treatment, the defendants are precluded from arguing that instructions that permitted the jury to award damages for emotional distress or defendants failed to do so. Because the defendants did not object to the court to instruct the jury that it could not award such damages. The reluctance to seek treatment in the damage award, they should have asked the the defendants wanted to exclude any consideration of emotional distress or trial court gave both parties ample opportunity to object to the instructions. If any other damage claim that the plaintiff made. After the jury instructions, the specifically instruct on emotional distress, reluctance to seek treatment, or on should compensate the plaintiff and make her whole. The tria l court did not that the damage award should be “full, fair and adequate” and that the award The trial court gave a broad instruction on damages. The court stated

(1987). jury retires. Super. Ct. R. 72; Daigle v. C ity of Portsmouth, 129 N.H. 561, 583 objections to a jury charge are waived unless taken on the record before the economy.” Broughton, p. 15 152 N.H. at ___, 880 A.2d at 391 (citations omitted). All error it may h ave made and is grounded in common sense and judicial review. This requirement affords the trial court an opportunity to correct any contemporaneous objection during trial to preserve an issue for appellate “It is well established that a party must make a specific and

that the defendants waived this argument by failing to prop erly object at trial. treatment when no such instruction was before the jury. The plaintiff responds recovery for the plaintiff’s claims of emotional distress and reluctance to seek The defendants argue that the tri al court erred by allowing a damage

A. Emotional Distress and Reluctance to Seek Treatment

V. Damages

deposition as evidence. properly exercised its discretion by declining to admit Dr. Jackson’s discovery to appear at trial. Based upon the above, we conclude that the trial court defense counsel received Dr. Jackson’s letter and did nothing to persuade him manner to further communicate with him. It appears from the record that th e importance of Dr. Jackson’s attendance at trial or attempt in any other box at which to reach him. Defense counsel did not send a letter explaining admitted twice at trial that Dr. Jackson had provided counsel with a post - office trial that they had no way of contacting Dr. Jackson. In fact, defense counsel procure the witness’s testimony.” We agree. The defendants d id not argue at based on what I’ve heard, I don’t believe there’s been an adequate effort to require that efforts be made to procure the witness’s attendance and, frankly, p. 16 16

BRODERICK, C.J.