State v. Brosseau

King, C.J. (with whom Brock, J., concurs). Chapter 556 of the New Hampshire Laws of 1973 (codified at RSA chapter 135-B) was enacted, in part, to guarantee every civilly committed mentally ill patient “a right to adequate and humane treatment.” RSA 135-B:43. In 1975, the New Hampshire Legislature extended this right to “[e]very developmentally impaired client” treated by the New Hampshire Division of Mental Health. RSA 171-A:13 (Supp. 1981). Our inquiry in the present appeals is limited to two questions: (1) Did the legislature in enacting RSA 135-B:43 and RSA 171-A:13 (Supp. 1981) impliedly waive sovereign immunity as to statutory and tort claims brought by institutionalized patients against the State or State agents for money damages? (2) If so, is RSA 171-A:13 (Supp. 1981) intended to waive the State’s eleventh amendment immunity from suit by its citizens in federal court? For the reasons that follow, we answer question one “yes” and question two “no.” We have consolidated four cases involving mentally ill, mentally retarded and physically disabled patients who allegedly were injured while institutionalized at civil mental health facilities operated by the State. Claims for compensatory damages were brought by or on behalf of these patients against the State and State agents, alleging that the negligent psychiatric and medical treatment provided the patients in State facilities was the proximate cause of irreparable injury. In two of the consolidated suits, the defendants brought counterclaims for the wrongful death of their decedents in response to the actions filed by the State, pursuant to RSA 126-A:47 (Supp. 1981), to — 188 — recover expenses for the board and treatment provided these two decedents while patients at the New Hampshire Hospital. In the first case, No. 82-064, the deceased, Adrian Brosseau, is alleged to have been suicidal during the period he was involuntarily committed to the State hospital. Brosseau’s estate argues that employees of the State hospital were negligent in discharging Brosseau and that their negligence was the proximate cause of his subsequent suicide. In response to the State suit to recover the cost of treating the deceased, Brosseau’s estate filed a counterclaim for wrongful death, seeking damages. The Superior Court (Pappagianis, J.) granted the State’s motion to dismiss the counterclaim, ruling that the doctrine of sovereign immunity barred an affirmative recovery. But the court also held that the estate’s claim could be asserted as a defense in a plea of recoupment to defeat or diminish the State’s reimbursement claim. The trial resulted in a verdict for the State, which was offset by the estate’s recoupment claim. This is an appeal from the decision of the trial judge denying the estate’s motion to set aside the verdict. The second case, No. 82-277, grew out of the involuntary civil commitment of John M. Zappia to the New Hampshire Hospital. It is alleged that State hospital employees physically abused Zappia while he was strapped to a bed and then injected him with an improvident dosage of a tranquilizer, which ultimately led to his heart attack and subsequent death. In response to the State’s action to recover hospital expenses, Zappia’s estate counterclaimed seeking money damages, alleging that the negligent care and treatment of the deceased proximately caused the death. The estate also sought recovery for violation of the decedent’s federal constitutional rights pursuant to 42 U.S.C. § 1983 (1979) and for breach of an implied contract of care, treatment and maintenance. The Superior Court (,Souter, J.) approved the recommendation of the Master (Frank B. Clancy, Esq.) that all three counts of the counterclaim be dismissed on the ground of sovereign immunity. The decedent’s estate then filed an interlocutory appeal to this court. See Sup. Ct. R. 8. In case No. 82-365, the plaintiff alleged that the negligent failure of State employees to timely diagnose a brain tumor in an eleven-year-old patient of the New Hampshire Hospital proximately caused her permanent blindness. The plaintiff filed suit seeking damages against the Manchester Mental Health Center, two psychologists employed by the center, the State, and three State hospital employees, including a physician. The State and State employees named as defendants moved to dismiss the negligence claims on the basis of sovereign immunity. On the recommendation of the Master (Mayland H. Morse, Jr., Esq.), the Superior Court (Contas, J.) trans — 189 — ferred to this court without ruling, pursuant to Supreme Court Rule 9, the question whether the State and its employees are insulated from suit by the doctrine of sovereign immunity. In case No. 82-465, the final case consolidated for our review, the United States District Court for the District of New Hampshire (Devine, C.J.) certified the following questions to this court: (1) “[Does] RSA 171-A:13 (Supp. 1981) constitute a waiver of sovereign immunity as to state statutory and common law claims in an action for damages brought by the administratrix of the estate of a resident of Laconia State School;” (2) “[If so,] is the statute intended to constitute a waiver of the state’s immunity from suit in Federal Court on the state law claims and on the related federal civil rights actions?” This case arose from the alleged negligent treatment and subsequent death of Carla Rose Edwards, a seventeen-year-old girl, at the Laconia State School and Training Center (Laconia School). Edwards was a developmentally-impaired person, as defined by RSA 171-A:2, V (Supp. 1981), who was institutionalized at the Laconia School. The complaint filed in federal district court by Edwards’ mother, individually and as administratrix of Edwards’ estate, alleged that Edwards’ death was caused by her choking on vomit that she inhaled due to her physical disability. It alleged that the proximate cause of Edwards’ death was the negligent failure of the employees of the Laconia School to adequately treat her, and the administratrix sought compensatory damages. The plaintiff brought section 1983 claims against named defendants Jack E. Melton, the Laconia School Superintendent, and Thomas M. Ruffle, M.D., a pediatrician at the Laconia School. In addition, the plaintiff commenced pendent claims based on State law against the defendants for negligence, wrongful death and violations of the statutory right to “adequate and humane habilitation and treatment” of developmentally-impaired persons conferred by RSA 171-A:13 (Supp. 1981). The State, on behalf of the defendant Melton, filed motions to dismiss the claims against Melton in his official capacity based on the eleventh amendment to the United States Constitution. The State also moved to dismiss the State claims on the ground of sovereign immunity. Consideration of these motions to dismiss was deferred by the United States District Court pending resolution of the above-certified questions. In our opinion, it is not necessary that we reach the ques — 190 — tion of whether the doctrine of sovereign immunity, as incorporated in RSA 99-D:l (Supp. 1981), is constitutional in order to resolve the appeals presently before us. We have held that the State may waive its immunity and permit suits to be brought by parties injured by the negligence of State agents. See Sousa v. State, 115 N.H. 340, 344, 341 A.2d 282, 285 (1975). A waiver occurs when “the legislature has provided for it by statute either expressly or by reasonable implication.” Chasse v. Banas, 119 N.H. 93, 96, 399 A.2d 608, 610 (1979) (quoting Public Service Co. v. State, 102 N.H. 54, 56, 149 A.2d 874, 876 (1959)). In RSA 99-D:l (Supp. 1981), the New Hampshire Legislature itself recognized that it could waive sovereign immunity. RSA 99-D:l (Supp. 1981) provides, in pertinent part, that sovereign immunity is the law of the State “except as otherwise provided by statute.” This court has strictly construed statutory waivers of sovereign immunity. Chasse v. Banas supra. However, where the clear intent of a statute is to confer a right to redress injuries proximately caused by the negligent actions of certain State agents, we have not hesitated to construe that statute to allow recovery of damages. Id. We have also recognized that “[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies.” Chasse v. Banas supra (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239 (1969)). Where a statutory right is violated, resulting in injury to a party within the class protected by the statute, the most appropriate remedy is money damages. Chasse v. Banas supra; see also Texas & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39 (1916). The statutes at issue in this case, RSA 135-B:43 and RSA 171-A:13 (Supp. 1981), in almost identical language, grant to civilly committed mentally ill patients and “developmentally impaired clients” of State mental health facilities “a right to adequate and humane treatment.” In Chasse v. Banas, 119 N.H. at 96, 399 A.2d at 610, this court found that the New Hampshire Legislature, in enacting RSA 135-B:43, “recognized” the civil rights of mentally disabled patients committed to State institutions. We also ruled in Chasse that the language of RSA 135-B:43 not only “creates a right” to adequate and humane treatment in State institutions, but “imposes a duty” upon State agents to provide that quality of care. Id. Further, we ruled that a breach of this statutory duty by the State or its agents will create a cause of action for damages in tort. We, therefore, held that the legislature in enacting RSA 135-B:43 “waived any claim of sovereign immunity in an action for damages where a — 191 — patient. .. seeks to vindicate the denial of this [statutory] right.” Id. at 97, 399 A.2dat611. Because we remain convinced that the conferral of a right implies the existence of a remedy, we reaffirm our holding in Chasse that the legislature by enacting RSA 135-B:43 waived any claim of sovereign immunity of the State and State agents in a court action for damages under the statute. The virtually identical language of RSA 171-A:13 (Supp. 1981) compels us to conclude that the legislature similarly intended to waive sovereign immunity to permit individuals to sue the State and State agents for violations of the rights granted by that statute as well. The fact that some language in Chasse referred to RSA 135-B:49, and the fact that section 49 was later repealed by the enactment of RSA chapter 99-D (Supp. 1981), does not weaken the analysis we employed in our opinion in Chasse. This court’s reliance on Chasse in State Employees’ Ass’n of N.H. v. Belknap County, 122 N.H. 614, 621, 448 A.2d 969, 972 (1982) and Dunaisky v. State, 122 N.H. 280, 282, 444 A.2d 532, 534 (1982), indicates that we did not consider RSA 135-B:49 necessary to construe a waiver of sovereign immunity. We now consider the second question certified by the United States District Court: Does RSA 171-A:13 (Supp. 1981) constitute a waiver of the State’s eleventh amendment immunity from suit in federal court? We hold that the legislature by enacting RSA 171-A:13 (Supp. 1981) did not intend to waive its eleventh amendment immunity from suit in federal court. The eleventh amendment bars retrospective actions for damages against an unconsenting state — or against a state agent in his official capacity — in federal court by its own citizens. See Quern v. Jordan, 440 U.S. 332 (1979); cf. Maine v. Thiboutot, 448 U.S. 1, 9 n.7 (1980) (eleventh amendment is not a bar to actions brought in state court). A state may waive its eleventh amendment immunity from suit in federal court. Edelman v. Jordan, 415 U.S. 651, reh’g denied, 416 U.S. 1000 (1974). The fact that a state may have relinquished its sovereign immunity from suit in its own courts “is not determinative of whether it has waived its eleventh amendment immunity from suit in federal courts.” Id. at 677 n.19. The waiver must be stated by “express language” or by “overwhelming implications.” Id. at 673 (quoting Murray v. Wilson Distilling Company, 213 U.S. 151, 171 (1909)). In light of this strict standard for construing an implied — 192 — statutory waiver of eleventh amendment immunity, we conclude that there is no language in RSA 171-A:13 (Supp. 1981), taken as a whole, which indicates that the legislature intended to waive the eleventh amendment bar. If and when we do reach the constitutionality of sovereign immunity, we would be disposed to reconsider the validity of the doctrine as it exists today. However, we should be reluctant to do so until the legislature has been given an opportunity to correct the present procedural and financial inadequacies of statutes relating to sovereign immunity. See Whitney v. Worcester, 373 Mass. 208, 212, 366 N.E.2d 1210, 1213 (1977) (where the Massachusetts Supreme Judicial Court gave the State legislature until the conclusion of its next session to act to define the limits of governmental immunity, or it would assume the task itself). The cause of action against the State and its employees created by RSA 135-B:43 and RSA 171-A:13 (Supp. 1981) could also have been litigated before the State Board of Claims (board) under RSA 541-B:12 (Supp. 1981), if the plaintiffs had chosen that remedy. The legislature has limited the maximum amount of tort recovery in each case adjudicated by the board to $50,000. RSA 541-B:14 (Supp. 1981). Further, it has limited the award the board can make without legislative approval to $10,000. RSA 541-B:12 (Supp. 1981). In view of the soaring -costs of medical care and other expenses frequently incurred by injured parties, these statutory limitations on tort recovery may often preclude the award of adequate compensation to parties who suffer irreparable injury. Although these two ceilings imposed by the legislature are unreasonable, the legislature should be given a further opportunity to take corrective action, increasing the limits on recovery to a level which can satisfy, to a reasonable degree, the valid claims of injured parties, before the judiciary acts. See Park v. Rockwell Int’l Corp., 121 N.H. 894, 900, 436 A.2d 1136, 1140 (1981) (King, C.J., dissenting); see also Estate of Cargill v. City of Rochester, 119 N.H. 661, 669, 406 A.2d 704, 708 (1979). Cases No. 82-064 and 82-277 are reversed and remanded. Case No. 82-365 is remanded. With respect to the questions certified by the United States District Court, the answer to question number one is “yes” and the answer to question number two is “no.” Nos. 82-064 and 82-277 reversed and remanded; Nos. 82-365 and 82-465 remanded. — 193 — Douglas and Batchelder, JJ., concurred specially; Souter, J., did not sit.