Boryla-Lett v. Psychiatric Solutions of Nc, COA08-1357.

• Decision Date: 03 November 2009
• Docket Number: No. COA08-1357.,COA08-1357.
• Parties: Dinah BORYLA-LETT, individually and as adm. of the estate of, Amanda Boryla a/k/a Amanda Hrasar, and Jeffrey Lett, Plaintiffs, v. PSYCHIATRIC SOLUTIONS OF NORTH CAROLINA, INC., d/b/a Holly Hill Hospital, John T. Clapacs, North Raleigh Psychiatry, P.A., and Scott Jackson, P.A., Defendants.
• Court: North Carolina Court of Appeals

685 S.E.2d 14

Dinah BORYLA-LETT, individually and as adm. of the estate of, Amanda Boryla a/k/a Amanda Hrasar, and Jeffrey Lett, Plaintiffs, v. PSYCHIATRIC SOLUTIONS OF NORTH CAROLINA, INC., d/b/a Holly Hill Hospital, John T. Clapacs, North Raleigh Psychiatry, P.A., and Scott Jackson, P.A., Defendants.

No. COA08-1357.

Court of Appeals of North Carolina.

November 3, 2009.

Appeal by plaintiffs from orders entered 4 April 2008 and 27 May 2008 by Judges Donald W. Stephens and Orlando Hudson, respectively, in Wake County Superior Court. Heard in the Court of Appeals 7 April 2009.

Martin A. Rosenberg, Chapel Hill, for plaintiffs-appellants.

Crawford & Crawford, LLP, by Renee B. Crawford, Robert O. Crawford, III, Raleigh, and Heather J. Williams, for John T. Clapacs and North Raleigh Psychiatry, P.A., defendants-appellees.

Teague, Campbell, Dennis & Gorham, L.L.P., by J. Matthew Little and Kathryn Deiter-Maradei, Raleigh, for defendants-appellants.

JACKSON, Judge.

Dinah Boryla-Lett ("Boryla-Lett") and Jeffrey Lett ("Lett") (collectively, "plaintiffs"), both in their own capacities and on behalf of the estate of Amanda Boryla a/k/a Amanda Hrasar ("Amanda"), appeal the orders dated 4 April 2008 and 27 May 2008 granting summary judgment in favor of John T. Clapacs, M.D. ("Dr. Clapacs"); North Raleigh Psychiatry, P.A. ("North Raleigh"); Psychiatric Solutions of North Carolina, Inc. d/b/a Holy Hill Hospital ("Holly Hill"); and Scott Jackson ("Jackson") (collectively, "defendants"). For the reasons set forth below, we affirm.

On 16 November 2005, at approximately 1:15 a.m., plaintiffs brought their daughter, Amanda, age twenty, to Holly Hill for admission. Holly Hill is a hospital specializing in providing mental health treatment, including patient commitment. Boryla-Lett testified in her deposition that Amanda was planning to commit herself voluntarily when she arrived at Holly Hill with her parents, but then she changed her mind. Plaintiffs expressed their concerns for Amanda's safety and health to Jackson, who was working for Holly Hill at the time performing intake evaluations. They also told him that she had taken a "handful of pills" in the waiting room.

Jackson took Amanda into a private room to evaluate her. Jackson reviewed Amanda's medical record, but he did not thoroughly examine it. Jackson did not perform a drug test on Amanda, nor did he interview her parents. Jackson examined Amanda for approximately thirty minutes. Amanda was described as calm, alert, and sad, but did not appear to be under the influence of drugs or alcohol. Amanda denied suicidal thoughts or plans. Jackson determined that Amanda did not require involuntary commitment to Holly Hill. Jackson requested permission to share Amanda's medical information with her parents and suggested to Amanda that she voluntarily commit herself. Amanda declined both suggestions. Jackson signed the evaluation himself, but, in violation of Holly Hill's intake and assessment procedures, he did not obtain a second employee's signature. Jackson then called the on-call psychiatrist, Dr. Clapacs, for a second opinion. Based upon the information provided by Jackson, Dr. Clapacs agreed that Amanda was not a candidate for involuntary commitment.

Sometime after 2:15 a.m., Jackson told plaintiffs that Amanda was not a candidate for involuntary commitment, that she had declined voluntary commitment, and that she was to be sent home. Amanda's parents became upset with Jackson and with Amanda, and left Amanda at Holly Hill. Plaintiffs testified that Amanda told them that she wanted to get her own ride home with a friend. Jackson testified that plaintiffs "became upset and ... left" the hospital, telling Amanda that she was not to return home.

Amanda tried unsuccessfully to get a ride home. At approximately 7:30 a.m., either Jackson or Holly Hill paid for a taxi service to take Amanda home. Amanda returned to an empty house and slept.

The next day, 17 November 2005, after talking with her family and spending time "with friends,"¹ Amanda locked herself in the bathroom at her home and died of a heroin overdose.

On 19 April 2007, plaintiffs filed a medical malpractice complaint. On 31 March 2008, Dr. Clapacs and North Raleigh filed a motion for summary judgment, and on 4 April 2008, the trial court granted their motion. On 14 April 2008, Jackson and Holly Hill moved for summary judgment, which the trial court granted on 27 May 2008. Plaintiffs appeal.

Plaintiffs contend that the trial court erred in finding no issue of material fact and granting defendants' motions for summary judgment. We disagree.

As this Court recently explained,

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.

A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.

Wilkins v. Safran, 185 N.C.App. 668, 671, 649 S.E.2d 658, 661 (2007) (quoting Draughon v. Harnett County Bd. of Educ., 158 N.C.App. 208, 212, 580 S.E.2d 732, 735 (2003) (internal quotation marks omitted), aff'd, 358 N.C. 131, 591 S.E.2d 521 (2004)).

We review a grant of summary judgment de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citing Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006)). All evidence must be viewed in the light most favorable to the non-moving party. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003).

North Carolina General Statutes, section 122C-210.1 provides:

No facility or any of its officials, staff, or employees, or any physician or other individual who is responsible for the custody, examination, management, supervision, treatment, or release of a client and who follows accepted professional judgment, practice, and standards is civilly liable, personally or otherwise, for actions arising from these responsibilities or for actions of the client. This immunity is in addition to any other legal immunity from liability to which these facilities or individuals may be entitled and applies to actions performed in connection with, or arising out of, the admission or commitment of any individual pursuant to this Article.

N.C. Gen.Stat. § 122C-210.1 (2007). Qualified immunity, if applicable, is sufficient to grant a defendant's motion for summary judgment. See Bio-Medical Applications of North Carolina, Inc. v. N.C. Dep't of Health & Human Servs., 179 N.C.App. 483, 487-88, 634 S.E.2d 572, 576 (2006); see generally Snyder v. Learning Servs. Corp., 187 N.C.App. 480, 653 S.E.2d 548 (2007). We hold that the qualified immunity afforded by North Carolina General Statutes, section 122C-210.1 applies to all defendants sub judice and, therefore, we affirm the trial court's grant of summary judgment in favor of defendants.

Under North Carolina law, `[c]laims based on ordinary negligence do not overcome ... statutory immunity' pursuant to Section 122C-210.1; a plaintiff must allege gross or intentional negligence. Cantrell v. United States, 735 F.Supp. 670, 673 (E.D.N.C.1988); see also Pangburn v. Saad, 73 N.C.App. 336, 347, 326 S.E.2d 365, 372 (1985) (`We therefore conclude that [North Carolina General Statutes, section] 122-24 [the precursor to North Carolina General Statutes, section 122C-210.1] was intended to create a qualified immunity for those state employees it protects, extending only to their ordinary negligent acts. It does not, however, protect a tortfeasor from personal liability for gross negligence and intentional torts.'). Nevertheless, as found by this Court, N[orth Carolina General Statutes, section] 122C-210.1 offers only a qualified privilege, meaning that, `so long as the requisite procedures were followed and the decision [on how to treat the patient] was an exercise of professional judgment, the defendants are not liable to the plaintiff for their actions.' Alt v. Parker, 112 N.C.App. 307, 314, 435 S.E.2d 773, 777 (1993), cert. denied, 335 N.C. 766, 442 S.E.2d 507 (1994).

Snyder, 187 N.C.App. at 484, 653 S.E.2d at 551. Plaintiffs argue in their brief that our holding in Snyder is "plainly incorrect and, moreover, dicta." We disagree.

This portion of Snyder is not dicta because it is essential to the holding of the case. The question presented in Snyder was whether the defendants were entitled to immunity, which would have provided them a substantial right upon which they could base an appeal from an interlocutory order. Snyder, 187 N.C.App. at 483, 653 S.E.2d at 550. Moreover, we cannot agree that the legal analysis set forth in Snyder is erroneous. By reading the remainder of the quotation set forth supra, one can see that gross negligence must be alleged to overcome the statutory immunity once it attaches, but that this immunity does not attach until a defendant shows that he or she followed the "requisite procedures [and that] the decision [as to how to treat the patient] was an exercise of professional judgment." Snyder, 187 N.C.App. at 484, 653 S.E.2d at 551.

The distinction between negligence and gross negligence is not merely a question of degree of inadvertence or carelessness but one of reckless disregard. See Yancey v. Lea, 354 N.C. 48, 53, 550 S.E.2d 155, 158 (2001). The difference is qualitative: "inadvertence" compared to "intentional wrongdoing or deliberate misconduct...