[Cite as Piper v. Bruno, 197 Ohio App.3d 126, 2011-Ohio-5874.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




PIPER,

        APPELLANT,                                               CASE NO. 1-11-07

        v.

BRUNO,                                                           OPINION

        APPELLEE.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2009 0892

                                     Judgment Affirmed

                         Date of Decision: November 14, 2011




APPEARANCES:

        Gregory D. Wilson and Eric J. Wilson, for appellant.

        Michael J. Manahan and Kate E. Schuyler, for appellee.
Case No. 1-11-07



       SHAW, Judge.

       {¶ 1} Plaintiff-appellant, Ronald Piper, appeals the December 20, 2010

judgment of the Common Pleas Court of Allen County, Ohio, granting summary

judgment in favor of defendant-appellee, Dr. Eddy Bruno, and dismissing his

complaint.

       {¶ 2} The facts relevant to this appeal are as follows. On August 26, 2008,

in Celina, Ohio, Piper’s two adult sons deliberately crashed their vehicle into

Piper’s vehicle to prevent him from driving. Their stated reason for doing so was

concern for the safety of their mother, sister, and Piper, because Piper had told one

of his sons that he was going to shoot Karen (Piper’s wife), Stephanie (Piper’s

daughter), and himself. The sons also reported that Piper had told his sons that he

loved them and that he hoped that the sons did not hate him for doing those things.

They also reported that after going through his property and belongings, Piper had

told them what needed to be taken care of.

       {¶ 3} The Celina Police Department was contacted and made aware of

what had transpired. Officers then took Piper into custody and transported him to

Westwood Behavioral Health Center, Inc. (“Westwood”), for a mental-status

evaluation. According to Westwood’s records, Piper was evaluated by a health

officer and licensed social worker named B. Schmersal shortly after midnight on

August 27, 2008. Schmersal noted the reason Piper was at Westwood, including

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the statements he had purportedly made to his sons. He also noted that Piper

denied any suicidal or homicidal thoughts and claimed that his family was “crazy”

and that they were the ones who needed help. After a consultation with Dr.

Antoine Demosthene, a licensed psychiatrist, the crisis plan/recommendation was

to hospitalize Piper in the psychiatric unit at St. Rita’s Medical Center (“St.

Rita’s”) in Lima, Allen County, Ohio, on an emergency certificate. Piper was then

transported to St. Rita’s.

       {¶ 4} Later that same morning, Dr. Bruno, a licensed psychiatrist, met

with Piper for the first time to conduct a psychiatric examination/assessment of

him. Dr. Bruno found Piper to be quite upset and uncooperative initially. Piper

denied any suicidal or homicidal thoughts and refused to accept treatment of any

kind. Dr. Bruno also attempted to speak with Piper’s wife that day, but she was not

available, and he did not have any contact information for Piper’s children. At

some point after that initial meeting, Dr. Bruno determined that Piper was

mentally ill and that he needed more time to further observe Piper and to assess

him. That afternoon, Dr. Bruno was informed that Piper and his attorney wanted to

speak with him. Dr. Bruno met with them as requested.

       {¶ 5} The following day, August 28, Dr. Bruno spoke with Piper’s wife,

Karen, and his son, Steve. They confirmed that Piper had threatened to kill Karen,

Stephanie, and himself and that the sons had crashed their vehicle into Piper’s to

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stop him from driving. Dr. Bruno testified in his deposition that Karen expressed

that she was very scared and feared for her life. He also examined Piper that day,

and Piper once again denied any suicidal or homicidal thoughts and declined any

treatment.

       {¶ 6} On August 29, 2008, Dr. Bruno filed a certificate of examination and

affidavit with the Allen County Probate Court, asserting that Piper was mentally ill

and subject to hospitalization by court order because he represented a substantial

risk of physical harm to himself and to others as manifested by evidence of threats

of suicide and threats to others, causing them to be placed in reasonable fear of

harm. Dr. Bruno further attested that Piper would benefit from treatment in a

hospital for his mental illness and was in need of that treatment as evidenced by

his behavior, which created a grave and imminent risk to the substantial rights of

others or himself. A hearing was scheduled on this matter for September 2, 2008.

In addition, at the request of Piper’s attorney, Dr. Thomas Hustak, a licensed

clinical psychologist with over 30 years of experience, was appointed by the

probate court to conduct a psychological evaluation of Piper and to report his

findings to the probate court at the hearing.

       {¶ 7} Dr. Bruno continued to observe Piper throughout his time at St.

Rita’s. On August 30, 2008, he requested that Piper receive psychological testing

from Dr. Frederick Ferri, a licensed clinical psychologist, or Dick Scherger, by

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leaving a message with them. At this time, Dr. Bruno did not know that the court

had ordered such an examination from Dr. Hustak. On that same day, Piper’s

blood-sugar level was very high, and he was seen by Dr. Hovest, an internal-

medicine doctor, who diagnosed him as suffering from diabetes. Although Piper

was told that he needed insulin, he refused this treatment and stated that he would

take care of his diabetes once he was released from St. Rita’s. Eventually, Piper

agreed to take oral medication for diabetes, but he continued to refuse to receive

insulin. Piper again denied to Dr. Bruno that he had any suicidal or homicidal

thoughts. He also refused to attend any group-therapy sessions. However, at this

point, he was engaging more with the hospital staff.

       {¶ 8} The next day, Dr. Bruno visited with Piper again. Although Piper

continued to refuse medication or to attend group therapy, he had begun to talk

and joke with the hospital staff. That day, Dr. Bruno read a letter that he had

received from Piper’s attorney, which stated that counsel had been personal

friends with Piper since 1983, that he had spoken with Karen and Piper’s children,

who did not believe he was mentally ill and did not want to go through with the

hearing on September 2, 2008, that counsel had been advocating for Karen and

Piper to dissolve their marriage for years, and that the family had developed a plan

for Piper’s release. This plan consisted of Stephanie moving out of the home near

the family business, Piper moving into that home, Karen remaining in the marital

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home, and Karen and Piper filing a petition for dissolution of their marriage. In

addition, Piper agreed to be examined, counseled, and treated by Dr. Hustak.

Thus, counsel for Piper requested that Dr. Bruno change Piper’s status to that of a

voluntary patient so that he could be discharged. Dr. Bruno did not change Piper’s

status at that time. He testified that given his conversation with Karen and Steve

on August 28, the level of fear Karen expressed to him, and the fact that neither

she nor Piper’s sons contacted him despite having his contact information, he did

not believe that the family was part of this plan.

       {¶ 9} On September 1, 2008, Dr. Bruno learned through the hospital staff

that Dr. Hustak was there to conduct a court-ordered psychological examination of

Piper. Dr. Bruno spoke with Piper, who again denied that he had any suicidal or

homicidal thoughts and refused to receive insulin. However, Piper continued

taking the oral medication he was given for his diabetic condition.

       {¶ 10} The following day, Dr. Bruno requested that the case for involuntary

hospitalization be dismissed. He testified in his deposition that he had observed

Piper improve each day that he was in St. Rita’s, that Piper interacted more with

the staff, that Piper no longer exhibited anger, and that Piper was more

cooperative. In addition, just prior to the hearing, Dr. Bruno was informed by

counsel for the Mental Health Board that Dr. Hustak was going to testify. At that

time, Dr. Bruno surmised that Dr. Hustak was going to testify that Piper was not

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mentally ill. At Dr. Bruno’s request, the probate court dismissed the case, and

Piper was released from St. Rita’s.

       {¶ 11} On August 27, 2009, Piper filed a complaint in the Common Pleas

Court of Allen County, Ohio, against Dr. Bruno, alleging four causes of action

stemming from his hospitalization at St. Rita’s the previous year: false

imprisonment, malicious prosecution, abuse of process, and intentional infliction

of serious emotional distress. Dr. Bruno filed an answer to this complaint, denying

any wrongdoing and including the affirmative defense that he was immune from

liability pursuant to R.C. 5122.34(A).

       {¶ 12} The case proceeded through discovery, and Dr. Bruno filed a motion

for summary judgment based upon his defense that he was immune from liability.

Piper filed a response in opposition to this motion, asserting that Dr. Bruno did not

act in good faith in continuing his hospitalization of Piper. Dr. Bruno filed a reply

to this response and attached the affidavit of Dr. Stephen Noffsinger, a licensed

psychiatrist in the state of Ohio. Dr. Noffsinger opined, based upon his review of

the case, including the discovery materials, that Dr. Bruno had met the standard of

care of a psychiatrist in regard to his evaluation, commitment, and attempts to treat

Piper, that Dr. Bruno had conducted a reasonable psychiatric evaluation of Piper in

good faith, and that Dr. Bruno was justified in filing an affidavit with the court to

allow Piper’s continued hospitalization.

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       {¶ 13} On December 22, 2010, the trial court granted summary judgment in

favor of Dr. Bruno and dismissed Piper’s complaint. This appeal followed, and

Piper now asserts two assignments of error.

                          ASSIGNMENT OF ERROR I

              The court erred in granting summary judgment to defendant,
       declaring that the defendant acted in good faith and was entitled to
       immunity.

                          ASSIGNMENT OF ERROR II

              The court erred by granting summary judgment when the
       parties agreed to a reply brief by defendant that attached new
       evidence that plaintiff did not get a chance to respond to.

       {¶ 14} Because these assignments of error are interrelated, we elect to

address them together.

       {¶ 15} An appellate court reviews a grant of summary judgment de novo,

without any deference to the trial court. Conley-Slowinski v. Superior Spinning &

Stamping Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991; see also

Hasenfratz v. Warnement, 3rd Dist. No. 1-06-03, 2006-Ohio-2797, 2006 WL

1519921, citing Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127,

572 N.E.2d 198. A grant of summary judgment will be affirmed only when the

requirements of Civ.R. 56(C) are met. This requires the moving party to establish

that there are no genuine issues of material fact, that the moving party is entitled to

judgment as a matter of law, and that reasonable minds can come to but one

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conclusion, and that conclusion is adverse to the nonmoving party, that party being

entitled to have the evidence construed most strongly in his favor. Civ.R. 56(C);

see Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,

paragraph three of the syllabus.       Additionally, Civ.R. 56(C) mandates that

summary judgment shall be rendered if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.

       {¶ 16} The issue before this court is whether Dr. Bruno was immune from

civil liability as a matter of law for his continued hospitalization of Piper. The

portion of the Revised Code that concerns the hospitalization of mentally-ill

persons provides that

       (A) Persons * * * acting in good faith, either upon actual
       knowledge or information thought by them to be reliable, who
       procedurally or physically assist in the hospitalization or discharge,
       determination of appropriate placement, or in judicial proceedings of
       a person under this chapter, do not come within any criminal
       provision, and are free from any liability to the person hospitalized
       or to any other person.

       ***

       (D) The immunity from liability conferred by this section is in
       addition to and not in limitation of any immunity conferred by any
       other section of the Revised Code or by judicial precedent.



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R.C. 5122.34(A) and (D). Piper contends that Dr. Bruno did not act in good faith

by continuing his hospitalization.

       {¶ 17} “The good faith rule of R.C. 5122.34 creates a subjective standard of

conduct which avoids any liability that otherwise results from a defendant’s

breach of a duty of care arising from an involuntary commitment or a release

therefrom.” Loughran v. Kettering Mem. Hosp. (1998), 126 Ohio App.3d 468,

474, 710 N.E.2d 773. Further, “[i]t is a ‘professional judgment’ rule that

acknowledges ‘[t]he inherent difficulty of predicting violent behavior, coupled

with the degree of variability exhibited by psychiatrists in clinical practice.’ ” Id.,

quoting Nolan, Ohio Adopts the Professional Judgment Rule (1990), 15 Dayton

L.Rev. 319, 332.

       {¶ 18} In determining whether a psychiatrist acted in good faith, a number

of factors are to be considered, which include the competence and training of the

psychiatrist, “ ‘whether the relevant documents and evidence were adequately,

promptly and independently reviewed, whether the advice or opinion of another

therapist was obtained, whether the evaluation was made in light of the proper

legal standards for commitment, and whether other evidence of good faith

exists.’ ” Loughran at 474, quoting Littleton v. Good Samaritan Hosp. & Health

Ctr. (1988), 39 Ohio St.3d 86, 96, 529 N.E.2d 449 (reviewing psychiatrist’s

decision to release a patient who subsequently murdered her infant after having

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expressed a desire to do so while hospitalized). Thus, “the defendant’s acts or

omissions are weighed to determine whether he or she acted on the basis of a

judgment, honestly arrived at, that the subject should be committed or released, as

the case may be.” Loughran at 474. Once a defendant-psychiatrist has made a

prima-facie showing of good faith, the burden shifts to the plaintiff to show that

“no reasonable psychiatrist would have committed the patient under the

circumstances.” Johnson v. Patel, 5th Dist. No. 2006AP100058, 2008-Ohio-596,

2008 WL 399022, ¶ 42, citing Loughran.

       {¶ 19} Here, Dr. Bruno’s affidavit stated that he had received his medical

degree in 1992 from the Université d’État d’Haiti. From January 2001 until

December 2004, he completed his four-year residency program in psychiatry at the

Medical College of Ohio.      He is a board-certified psychiatrist and has been

licensed to practice medicine in Ohio since 2004. He has practiced in the Lima,

Ohio area since 2005 and has been the Medical Director of Westwood since

February 2006.

       {¶ 20} Dr. Bruno testified that he reviewed Westwood’s records of the

mental-status evaluation of Piper that its licensed social worker, B. Schmersal,

conducted on the night Piper was brought to them after his two sons wrecked their

vehicle into his to prevent him from driving after he called to tell one of them that

he was going to kill his wife, his daughter, and himself. Both Schmersal and the

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consulting psychiatrist, Dr. Demosthene, concluded that Piper needed emergency

hospitalization.1 Dr. Bruno personally met with Piper later that day and found him

to be uncooperative, angry, and in denial about having made any such threats.

        {¶ 21} The following day, Dr. Bruno personally spoke with Karen and

Steve, who told him of Piper’s threats the previous day. Karen, who had been

married to Piper for several years, expressed that she was very afraid of Piper and

that she feared her life was in danger. Dr. Bruno found Karen and Steve to be

reliable. Dr. Bruno’s affidavit further states that he opined based upon his own

observations, expertise, and review of Piper’s records that Piper was “mentally ill

and represented a substantial risk of physical harm to himself and others as

manifest by evidence of threats to inflict serious bodily harm to his family and

himself.” Further, Dr. Bruno stated that it was his professional opinion that Piper

“represented a substantial risk of physical harm to himself and others. Mr. Piper

was in need of emergency treatment in a hospital and would benefit from the

treatment.” Lastly, Dr. Bruno averred that his decision to continue Piper’s

hospitalization

        was made in good faith based on current standard of practice and on
        my professional judgment to honestly reach a clinical decision that
1
  Piper notes that Schmersal’s records of his mental evaluation included two boxes that were checked “No”
for whether the patient was homicidal or suicidal. However, the written narrative includes the threats Piper
made to his family and about himself and that Piper denied being homicidal or suicidal. Although the
checked boxes appear contrary to the written narrative, the end result remained the same, i.e., Piper was
hospitalized on an emergency certificate by Schmersal, through Dr. Demosthene. Thus, his risk to himself
and/or others was clearly a concern.

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      would benefit my patient and his family. I was convinced that the
      best interest of my patient and the safety of his family were primary
      concerns and ruled out expediency and time constraints.

      {¶ 22} Dr. Bruno continued to assess Piper every day during his

hospitalization, and on August 30, 2008, he ordered that a psychological

evaluation be conducted by Dr. Ferri or Dick Scherger. However, this evaluation

was not completed by either of them prior to the time of the hearing. Rather, Dr.

Hustak evaluated Piper, but Dr. Bruno was unaware of the results of this

evaluation, which was completed on September 1, 2008, until immediately before

the hearing on the morning of September 2, 2008. In his deposition, Dr. Bruno

testified that he asked for the case to be dismissed once he observed Piper’s

continuous progress, i.e., that he was no longer angry, he was more cooperative,

and he was interacting in a light-hearted manner with the staff, to the point where

Dr. Bruno no longer felt that hospitalization was necessary but that Piper could be

discharged with proper follow-up.

      {¶ 23} Given this evidence, under the Littleton and Loughran factors, Dr.

Bruno presented sufficient facts to make a prima-facie showing that he had acted

in good faith. Thus, the burden then shifted to Piper to show that no reasonable

psychiatrist would have continued his hospitalization under the circumstances.

      {¶ 24} Piper asserts that Dr. Bruno ceased performing his statutory duties as

to Piper’s mental status less than 24 hours from admission because Piper engaged

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the services of an attorney and because Dr. Bruno was angered by Piper’s

comments that he needed to speak English if he was going to talk to Piper. Piper

further maintains that Dr. Bruno did not act in good faith by failing to contact his

family about the “safety plan” proposed on August 31, 2008, which involved Piper

moving out of the marital home and seeking a dissolution of marriage, and by

failing to contact Dr. Hustak about the results of his evaluation, which he knew

Dr. Hustak was conducting, and which ultimately concluded that Piper was not

mentally ill.

       {¶ 25} Although Piper makes a number of assertions about Dr. Bruno’s lack

of good faith, he presented no evidence to support these assertions. Rather, this

claimed lack of good faith is based entirely upon Piper’s own opinions and not on

the opinion of any psychiatrist that no reasonable psychiatrist would have

continued Piper’s hospitalization under the circumstances. The only evidence

submitted in support of Piper’s position is the report and subsequent affidavit of

Dr. Hustak, which stated that when he evaluated Piper on August 31 and

September 1, 2008, he concluded that Piper was not suffering from any mental

illness, that he would not have benefitted from hospitalization, that he was not in

need of treatment, and that his activities did not create a grave and imminent risk

to the substantial rights of himself or others.



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       {¶ 26} However, Dr. Hustak is not a psychiatrist; he provided no opinion as

to whether Dr. Bruno had failed to act in good faith and, in fact, had rendered no

opinions regarding Dr. Bruno’s performance, including whether Dr. Bruno should

have contacted Piper’s family members or Dr. Hustak, himself. In short, Dr.

Hustak merely disagreed with Dr. Bruno’s assessment of Piper’s mental status and

need for hospitalization and treatment.         This does not rise to the level of

demonstrating that no reasonable psychiatrist would have committed or released

Piper under these circumstances.

       {¶ 27} Moreover, noticeably absent from Dr. Hustak’s report is any

discussion of background information obtained from any of Piper’s family.

Unlike Dr. Hustak, Dr. Bruno was confronted, as aptly stated by the trial court in

its judgment entry, with “the ultimate ‘Catch-22,’ as he had two ultimate options:

(1) admit Plaintiff in involuntary detention or (2) allow him to roam free and carry

out the perceived threats.” As previously discussed, the good-faith-immunity rule

stems from the inherent difficulty of predicting violent behavior, coupled with the

degree of variability exhibited by psychiatrists in clinical practice.

       {¶ 28} Absent any evidence to show that a genuine issue of material fact

existed as to whether Dr. Bruno had acted in good faith in continuing Piper’s

hospitalization, the trial court committed no error in granting summary judgment

in favor of Dr. Bruno. Therefore, the first assignment of error is overruled.

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      {¶ 29} In addition, we find that Piper’s second assignment of error

regarding the affidavit of Dr. Stephen Noffsinger, which was attached to Dr.

Bruno’s reply to Piper’s opposition to summary judgment, is moot, because

neither the trial court nor this court relied on this affidavit in reaching the

conclusion that summary judgment was properly granted in favor of Dr. Bruno.

Accordingly, the second assignment of error is, likewise, overruled.

      {¶ 30} For all these reasons, the judgment of the Common Pleas Court of

Allen County, Ohio, is affirmed.

                                                               Judgment affirmed.

ROGERS, P.J., and WILLAMOWSKI, J., concur.




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