CARIBOU – Philip Berube of Madawaska sat quietly next to his attorney in Aroostook County Superior Court on Wednesday morning listening intently to legal arguments.

His attorney and an assistant attorney general were debating a motion by the state to dismiss Berube’s medical malpractice lawsuit, which seeks damages in connection with the death of his 19-year-old son, Matthew, who died while a patient at Bangor Mental Health Institute on July 21, 1999.

Matthew Berube, a seriously disturbed man who twice before had climbed towers with the intent of jumping, died after falling or jumping 40 to 50 feet from construction scaffolding at BMHI while on an unsupervised pass on hospital grounds.

It was his second pass on consecutive days, and he had returned late the first day, after escaping for 45 minutes from the institution. The state medical examiner ruled his death a suicide.

It has been a three-year quest for Berube. Acting as personal representative for his dead son, he filed a notice of claim against 16 individuals in January 2000. The case now involves malpractice against Dr. Keith Courtney, a psychiatrist at BMHI, and M.C. Hodgkins and Walter Demik, two BMHI registered nurses.

The summary judgment sought by Assistant Attorney General William R. Fisher could end Berube’s case against the state. Justice E. Allen Hunter took the arguments under advisement Wednesday. He did not issue a date for his decision.

If Hunter grants the motion, it would eliminate the need for a trial. If Hunter does not grant the motion, the case will continue.

In oral arguments Thursday morning, Fisher claimed that the three defendants should get a summary judgment in their favor because Berube did not file his claim within 180 days, and that the three are granted absolute immunity under the Maine Tort Claims Act.

Fisher told the court that the Maine Law Court has held that doctors working for the state have discretionary immunity. He said Courtney made a judgment call that Berube could have unsupervised passes to be on the grounds of BMHI, instead of being held in the ward.

He also told the court that Hodgkins and Dimek played no part in Berube’s receiving the unsupervised passes.

Craig Bramley, the Lewiston attorney representing Berube, however, told the court that discretionary immunity is not a cloak that covers all acts.

He said the two nurses were aware that Matthew Berube had escaped on his first pass, the day before he died. Bramley said the two had the responsibility to see that Courtney had that information. He also said Courtney did not communicate the information to a team responsible for deciding Berube’s treatment.

He told the court that those acts are open to liability and should be heard before a jury.

A call by Philip Berube for a legislative investigation into his son’s death was turned down by the Maine House of Representatives in 2000. Members of the legislative Health and Human Services Committee spoke against holding an investigation on the floor of the House.

Berube has said the family simply wants to know what happened to their son and why. Berube, a truck driver, travels the length of the East Coast, and he doesn’t go many places without his files on the case.

He lives and breathes this case, calling his attorneys from wherever he is when he gets an idea, if he wants to know something or finds information about his son’s death.

On short periods at home, between loads, Berube travels to Lewiston to meet with attorneys, and around the state to meet with people who have lost relatives who were in the care of the state.

Berube has chronicled his son’s life from the time on April 25, 1999, when Matthew climbed a 100-foot-high water tower in Madawaska, through his hospitalization at Fort Fairfield and BMHI. The father has included Matthew’s refusal of treatment, medication, nutrition and his several escapes from BMHI from May 20, 1999, until his death July 21, 1999.

In some of those escapes, Matthew returned on his own. Once he was returned by police.

Berube claims his son at the time of his death was “severely depressed” and having auditory hallucinations – voices telling him to kill himself.

He said he wondered why his son was given a second unsupervised pass July 21, after returning 45 minutes late from an unsupervised pass the previous day. Berube claims his son told doctors of suicidal ideas on the morning he killed himself.