No remedy where plaintiff suffered forced hospitalization

This woman was forcibly medicated and hospitalized by private health care providers after she fell asleep on an airplane to JFK airport following a coughing fit. When she awoke, the Jamaica Hospital decided she was a danger to herself and others and had to be confined against her will because they thought she had romantic delusions, was uncooperative and they had learned that she once threw a metal object at an ex-boyfriend. Does she have a case? She does not, at least under Section 1983 and the Rehabilitation Act.

The case is McGugan v. Aldana-Bernier, decided on May 16. In order to win under Section 1983 (the federal civil rights statute), you have to prove that government actors violated your rights. This question is sometimes more complicated than it appears. Private health care providers harmed plaintiff, but while the state gave them authority to hospitalize and medicate plaintiff, the law did not require them to do so. While this is a highly regulated area, that does not mean the state is responsible for what happened to plaintiff. Binding Second Circuit precedent, Doe v. Rosenberg (1999), has already laid down the ground rules in this area, and the Second Circuit (Leval, Hall and Lohier) is not about to overturn one if its prior cases. So the Section 1983 case is gone.

What about the Rehabilitation Act claim? That disability discrimination law kicks in when the defendant receives federal funding. The Court says "The question we face is whether McGugan’s complaint asserts an actionable claim that she was subject to 'discrimination' by reason of her disability." This brings us to a lengthy discussion on what it means to discriminate in the medical context:

The term “discrimination” is potentially confusing in the context of medical treatment. The word has two very different significations — one positive, the other pejorative. In its positive sense, one discriminates by drawing distinctions that are relevant to the qualities or characteristics of the thing observed. In its negative or pejorative sense, one discriminates by withholding advantages or inflicting disadvantages on the basis of irrelevant criteria, under the influence of irrational bias.A doctor who administers a medical treatment to a patient (or withholds it) because the doctor’s medical training leads her to conclude that the treatment is medically appropriate (or inappropriate) is practicing the benign form of discrimination. This is true even if the doctor’s medical understanding is flawed and her knowledge is deficient. On the other and, a doctor who inflicts or withholds a type of medical treatment for reasons having no relevance to medical appropriateness — reasons dictated by bias rather than medical knowledge — is practicing the pejorative form of discrimination.

It is clear that the intention of the Rehabilitation Act in prohibiting discrimination is to prohibit the pejorative, and not the benign, form. Thus a doctor may refuse to prescribe a particular treatment, which the disabled patient has requested, because of the doctor’s assessment (based on an appraisal of the patient’s medical condition) that the treatment would be harmful. The doctor’s refusal is not discrimination in violation of the statute, even if the doctor’s medical analysis is flawed. Such a decision may be malpractice, but it is not discrimination. Section 504 does not authorize a claim for malpractice.

So there is good discrimination and bad discrimination under Section 504. An example of bad discrimination in this context was Green v. City of New York (2d Cir. 2006), when the plaintiff was forcibly hospitalized based on the mistaken assumption that his Lou Gehrig's disease rendered him incompetent to grant or withhold consent to hospitalization. But this case is not Green. Plaintiff does not allege bad discrimination in her Complaint. Plaintiff claims the hospital determined that she was mentally ill based on irrelevant considerations, i.e, she did not know who she was dating, would not answer questions and had acted violently toward an ex-boyfriend. In rejecting her claim, the Court concludes, "Even if, as McGugan alleges, this evidence is not sufficient to support a minimally competent conclusion, McGugan has not plausibly alleged that the decision was based on improper considerations, unrelated to determining whether she had a mental illness likely to result in serious harm to herself or others. Accordingly, while she may have alleged medical malpractice, she has not alleged discrimination as required to state a claim under § 504."