Cranman v Maxwell

• Decision Date: 24 November 1999
• Docket Number: 1971903
• Parties: SUPREME COURT OF ALABAMA
• Court: Alabama Supreme Court

SUPREME COURT OF ALABAMA

NOVEMBER 24, 1999

OCTOBER TERM, 1999-2000

1971903

Ex parte Paul J. Cranman, as executor of the estate of Matthew Cranman, deceased

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS

(In re: Paul J. Cranman, as executor of the estate of Matthew Cranman, deceased v David Maxwell, M.D., et al.)

(Tuscaloosa Circuit Court, CV-96-1014

Court of Civil Appeals, 2970444)

PER CURIAM.

Paul J. Cranman, as executor of the estate of his son Matthew Cranman, deceased, was the plaintiff in a medical-malpractice action. He appealed from summary judgments entered in favor of the defendants David Maxwell, M.D.; Patricia A. Hubbs, M.D.; John Galaznik, M.D.; and Joe Bethany, M.D. (hereinafter sometimes referred to collectively as "the physicians"). The Court of Civil Appeals affirmed, holding that the physicians were entitled to discretionary-function immunity. Cranman v. Maxwell, [Ms. 2970444, May 22, 1998] ___ So. 2d ___ (Ala. Civ. App. 1998). We granted Paul Cranman's petition for certiorari review, and we affirm.

I. Facts

Matthew Cranman was a student at the University of Alabama in 1994. On September 12, 1994, he went to the Russell Student Health Center of the University of Alabama ("the student health center"), complaining of swelling and pressure in the area of his left testicle. Dr. Maxwell examined him, diagnosed epididymitis (an inflammation of the sperm-collecting tubes near the testicles), and prescribed antibiotics and sitz baths. Matthew returned on October 11, 1994, complaining of low-back pain. Dr. Galaznik examined him, diagnosed muscle pain, and prescribed medication. On November 7, 1994, Matthew again went to the student health center, reporting that he had a possible prostate infection. Dr. Maxwell saw him and determined that he had a slightly tender mass effect in the left epididymis; however, a testicular examination was negative. Dr. Maxwell prescribed more antibiotics and instructed Matthew to return in two weeks. Matthew returned on November 29, 1994, reporting mild discomfort in his left testicle. Dr. Bethany examined him, noted a slight enlargement of the testicle, changed his medication, and recommended that he consult a urologist in his hometown during the semester break.

Matthew did not visit the student health center again until August 23, 1995. At that time he complained of a stabbing, burning pain in his left flank. Dr. Maxwell examined him, diagnosed left paralumbar pain, and prescribed medication and physical therapy.

Two days later, when Matthew reported for physical therapy, he was examined by Dr. Hubbs, who noted that he was tender along the costal margin, in his left side, and in his flank. Dr. Hubbs thought Matthew had suffered a strain of the chest muscles; she prescribed additional medication, recommended that he try heat or ice, and instructed him to return in a week. When Matthew returned six days later, he reported that he was feeling better, and Dr. Hubbs gave him additional medication. On October 11, 1995, Matthew reported to the student health center with back pain and a flareup of his epididymitis. Dr. Hubbs noted that he had the symptoms of a hydrocele and that he had seen a urologist. She examined him, diagnosed recurrent epididymitis and a back strain, prescribed pain and antibiotic medication and back exercises, and instructed him to return in two weeks if he did not improve. On November 9, 1995, Matthew went to the student health center complaining of nausea, vomiting, and diarrhea. Dr. Maxwell examined him, but Matthew reported no back or testicular pain. On November 17, 1995, Matthew returned, with recurring back pain, and reported that he had been under stress and had not slept for a week. Dr. Hubbs examined him and found that he was experiencing shoulder pain and tightness different from the earlier back pain. She diagnosed upper back and neck strain, prescribed heat and medication, and referred him to physical therapy.

In December 1995, Matthew was diagnosed with testicular cancer. Cancerous cells were found in his lungs and behind his kidneys. His left testicle was surgically removed, and he underwent chemotherapy, radiation, and other cancer treatments.

II. Procedural History

In September 1996, Matthew sued Drs. Maxwell, Hubbs, and Galaznik; the student health center; and others. He alleged that the physicians had negligently and wantonly breached the applicable standard of care in treating him, thereby breaching an implied contract to render medical treatment. In their answer, the physicians asserted the defense of immunity because, they claimed, they were engaged in a discretionary function within the scope of their authority as employees of the University of Alabama. They then moved for a summary judgment on the basis of immunity. Matthew then amended his complaint to add Dr. Bethany as a defendant and to dismiss the student health center.

Matthew Cranman died on November 6, 1997.[1] On December 31, 1997, the trial court entered a summary judgment in favor of Drs. Maxwell, Hubbs, and Galaznik, concluding that they were protected from liability by discretionary-function immunity. On January 8, 1998, Paul Cranman, Matthew's father and executor, was substituted as a plaintiff, pursuant to Rule 25(a), Ala. R. Civ. P. On January 20, 1998, the trial court entered a summary judgment in favor of Dr. Bethany, based upon immunity. The trial court certified the summary judgments as final, pursuant to Rule 54(b), Ala. R. Civ. P. Paul Cranman appealed to this Court, which transferred the case to the Court of Civil Appeals, pursuant to § 12-2-7(6), Ala. Code 1975. In affirming the summary judgments, the Court of Civil Appeals stated, in pertinent part:

"As Matthew did in the trial court, the executor principally argues on appeal that precedents from other states rejecting immunity for state-employed physicians are persuasive and should be followed by Alabama courts. The trial court, while stating that `[Matthew] made a very compelling argument that [the state physicians] should not be entitled to discretionary function immunity because the character of the discretion which they exercised was medical and not governmental,' concluded that `under the current law of the State of Alabama a State-employed physician is entitled to immunity whether he's exercising "medical discretion" or "governmental discretion."' We agree with the trial court that no Alabama opinion has made any distinction, for purposes of tort liability, among the various forms of discretion that may be afforded to public servants in this state. Indeed, Kassen v. Hatley, 887 S.W.2d 4 (Tex. 1994), one of the authorities upon which the executor principally relies, describes Alabama as a state in which government medical personnel are immune from tort liability arising from the exercise of discretion in both governmental and medical decisions. 887 S.W.2d at 11 (citing Smith I [Smith v. Arnold, 564 So. 2d 873 (Ala. 1990]).

"....

"In this case, the state physicians were employed to provide health care to the student population at a state university. Their diagnoses of Matthew's condition and their recommendations as to treatment of that condition called for no less `professional judgment and discretion' than those made by the state-employed physicians in Barnes [v. Dale, 530 So. 2d 770 (Ala. 1988)], Smith I, and Harper [v. Gremmel, 703 So. 2d 346 (Ala. 1997)], or the state-employed trainer in Lennon [v. Petersen, 624 So. 2d 171 (Ala. 1993)], and it follows that they are entitled to the same discretionary function immunity that was afforded to the defendants in those cases. Thus, the trial court correctly entered the summary judgment in favor of the state physicians, and we affirm that judgment."

Cranman v. Maxwell, ___ So. 2d at ___.

Paul Cranman petitioned this Court for certiorari review of the Court of Civil Appeals' decision. He frames the issue presented as "whether the physicians in the rendition of purely medical treatment to an individual are performing a discretionary act as contemplated by caselaw and are legally entitled to officer- agent immunity under the Constitution for the State of Alabama, Art. I, Section 14." Although Cranman contends that this case presents a question of first impression in Alabama, the issue whether discretionary-function immunity, also known as official immunity, applies to physicians has been resolved, repeatedly, in a manner adverse to him. In essence, Cranman argues that the decisions relied upon by the Court of Civil Appeals in its opinion are settled law, but wrongly decided, an argument that is a cognizable ground for certiorari review under Rule 39(c)(5), Ala. R. App. P. Cranman is asking that we overrule the controlling Supreme Court cases relied upon by the Court of Civil Appeals. The Court granted his petition and consolidated this case with three other cases for oral argument. All of the cases question the continuing validity of the doctrine of immunity for health-care providers in the State service.

III. Development of the Doctrine of Immunity

We today reexamine the doctrine of immunity of officers, agents, and employees of the State for torts committed in the course of their performance of their duties.

We begin our discussion with a review of the doctrine of immunity where the issue arises in the context of the immunity available to the State in an action against the State ("state immunity") as opposed to the immunity available to individual defendants sued for actions taken on behalf of the State ("state- agent's immunity").[2] In Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So. 2d 281 (1971), this Court traced the history of state immunity in Alabama, using Copeland and Screws, Governmental Responsibility for Tort in Alabama, 13 Ala. L. Rev. 296 (1961), as a rich source of information. Our first Constitution required the Legislature to direct in what manner and in what c...