Dancy v. East Mississippi State Hosp., 2005-CA-01280-SCT.

• Decision Date: 07 December 2006
• Docket Number: No. 2005-CA-01280-SCT.,2005-CA-01280-SCT.
• Citation: 944 So.2d 10
• Parties: Glen DANCY v. EAST MISSISSIPPI STATE HOSPITAL and The Mississippi Department of Mental Health.
• Court: Mississippi Supreme Court

944 So.2d 10

Glen DANCY v. EAST MISSISSIPPI STATE HOSPITAL and The Mississippi Department of Mental Health.

No. 2005-CA-01280-SCT.

Supreme Court of Mississippi.

December 7, 2006.

Roy Gregg Rogers, Christopher Michael Falgout, attorneys for appellant.

Eugene M. Harlow, Laurel, attorney for appellees.

Before SMITH, C.J., DIAZ and RANDOLPH, JJ.

RANDOLPH, Justice, for the Court.

¶ 1. A patient taking part in the Clearing House Unit ("CHU") Day Program at East Mississippi State Hospital ("EMSH") was injured after escaping supervision on a field trip to Wal-Mart and attempting to commit suicide by running into traffic on Highway 19. The Circuit Court of Lauderdale County found EMSH and its employees immune from liability under the discretionary function exemption of the Mississippi Tort Claims Act, see Miss.Code Ann. Section 11-46-9(1)(d). From that ruling comes this appeal and cross-appeal.

FACTS

¶ 2. On January 7, 1994, Glen Dancy ("Dancy") was committed to EMSH by order of the Chancery Court of Noxubee County. This was the fourth time Dancy had been committed to EMSH.¹ Between his commitment and the incident, Augustus signed five separate "Permission for Participation in Activities" slips.² Prior to the incident, Dancy's last attempted escape from EMSH occurred on January 3, 2001.

¶ 3. According to the Mississippi Department of Health ("MDMH"):

it is the goal of mental health to place the patient in the least restrictive environment that their condition will allow. And that has been scientifically proven to be the most effective way to treat a mentally ill patient. And in fulfilling that goal they have a program at [EMSH] that is called the Clearing House Unit ["CHU"].

The notes of Dancy's "treatment team"³ indicate that "[Dancy] voiced a desire to participate in the [CHU][D]ay program." According to Veliscia City-Jones ("City-Jones"), an institutional social worker at EMSH, the difference between CHU clients and CHU Day Program clients is that Day Program clients:

come over, and they attend groups, and they attend activities with the clients at [CHU] for us to monitor and let their treatment team know how we see that they're doing; if they're capable of transitioning from the unit they were on over to [CHU] as a full-time resident of [CHU], to then move to the next step to progress out of the hospital.[⁴]

The criteria for admission into the CHU Day Program is:

(1) Patients are to be referred by their Treatment Team of Continuing Care Services.

(2) Patients should have ground privileges for at least 2-3 months prior to their referral to the CHU Day Program.

(3) Patients should not be exhibiting any acute psychotic features or behavior disorders which could not be adequately managed in an open setting.

Dancy was admitted to the CHU Day Program.

¶ 4. Group therapy notes of March 20, 2002, indicate that Dancy successfully participated in a field trip. Treatment team notes from April 4, 2002, the day of the incident, reveal "[p]atient has increased control over his hallucinations . . . not exhibiting inappropriate behavior such as stealing from others."

¶ 5. City-Jones arranged for the CHU to take a field trip to Wal-Mart.⁵ Clearance to plan and implement the field trip came from a discussion of the treatment team. Dancy expressed a desire to participate in the field trip. According to City-Jones "if . . . [patients] want to go and [there is] room, [the CHU] ha[s] the green light to take them without consulting any of their interdisciplinary team." Since Dancy had been admitted to the CHU Day Program, a decision within the discretion of the treatment team, she felt "that he was to participate in our programming."

¶ 6. On field trips, a written policy and procedure requirement mandates a patient:staff ratio of 5:1. On this trip there were twelve patients and three staff members, thus a ratio of 4:1.

¶ 7. Separate written permission slips for each field trip were not required by EMSH. Sims testified "it has just always been understood," that they would be obtained on an annual basis. City-Jones stated if there was not an updated permission slip, "[t]hat person would have been removed from the trip." According to Dr. Ramiro Martinez, the chief executive officer of EMSH, the permission slip is "not really necessary if the treatment team fel[t] like the individual is progressing to that point." Although Dancy's mother had signed permission slips in the past, she now claims she "informed the hospital that I did not want him removed for any reason. I was not informed of the trip to Walmart...." She asserts that "his mind wasn't good at that time." She now claims to have understood that EMSH needed her permission to take Dancy on each specific field trip, in spite of the fact that she signed only one permission slip annually. Two or three days after the incident, Augustus received another "Permission for Participation in Activities" slip, which she did not sign.

¶ 8. Regarding patient observation on field trips, Dr. Martinez stated there were no formal policies or procedures. EMSH employees explained that on field trips the staff members are "supposed to be where they can observe." Recreation assistant Debbie Eggleston stated "[e]ach staff member that attended Wal-Mart had a certain group of [patients]" to watch. However, such observation did not preclude situations where patients may walk out of sight of the supervising staff member.

¶ 9. The use of physical force by staff members was also not a matter of formal policy. In most situations, City-Jones stated that "the normal procedure ... would be to contact [the] security office at [EMSH]. And then they would make the determination of what steps they take." Prior to the arrival of security, physical force would be appropriate "where a client is a danger to self or a danger to others." According to Sims, "common sense" and experience were the mandated protocol in such situations. Dr. Martinez provided that a patient may be physically restrained if such restraint is possible and "the patient is becoming ... markedly disturbed and [it is] for his safety."

¶ 10. Each staff member on the field trip had experience regarding off-grounds trips. The trip to Wal-Mart was aptly described by the circuit court as follows:

[w]hile at Wal-Mart, [Dancy] was allowed to browse. After a short while, [Dancy] approached [City-Jones] with a Wal-Mart shopping bag, which contained a Walkman radio. [City-Jones] asked [Dancy] if he had a receipt and [Dancy] responded that he had lost the receipt. [City-Jones] escorted [Dancy] to the electronics department and [City-Jones] asked the clerk if [Dancy] had purchased the Walkman. The Wal-Mart clerk responded no. Then, [City-Jones] escorted [Dancy] to the front of the store to ask the check out clerks if [Dancy] had purchased the radio. At that point, [Dancy] tried to leave the store with the Wal-Mart shopping bag containing the radio and the alarm system activated. [Dancy] then came back into the store and went in the opposite direction from [City-Jones].

Then [City-Jones] called the CHU to advise them of the situation.[⁶] [City-Jones] stayed at the front of the store in an attempt to ensure that [Dancy] did not leave the store. At some point, Debbie Eggleston, another EMSH employee, came to the front of the store and [City-Jones] informed her of the situation. A few minutes afterward, [Dancy] came back to the front of the store, without the shopping bag, and had the Walkman radio out of its box, attached to his body with the headphones on. [Dancy] made another attempt to leave [the] store and Ms. Eggleston got his attention. At that point, one of the Wal-Mart customer service managers tried to talk to [Dancy]. Ms. Eggleston and the customer service manager convinced [Dancy] to relinquish the Walkman. As a result, [Dancy] became agitated and his behavior began to escalate.[⁷] [City-Jones] and Ms. Eggleston attempted to talk to [Dancy]. However, [Dancy] walked out of the Wal-Mart store exit. [City-Jones] followed [Dancy] out of the store and called for him to return. Despite her efforts, [Dancy] continued to walk through the Wal-Mart parking lot. [City-Jones] continued in her efforts to call after [Dancy], while watching him leave the parking lot, cross over Highway 19 and proceed up the [h]ighway until he was out of her sight.

[City-Jones] called the [CHU] back to inform them that [Dancy] had left the Wal-Mart parking lot.[⁸] Thereafter, [Dancy] jumped in front of a vehicle [on] Highway 19....

Dancy later claimed that he was trying to kill himself "[b]ecause [he] wanted a radio." As a result of his injuries, Dancy alleges that he cannot run or jump. He has since been readmitted to EMSH and is currently a patient there.

¶ 11. Dancy filed a complaint against EMSH alleging that "[t]he actions of [EMSH] were negligent and in reckless disregard for the safety and well being of [Dancy]. The actions of [EMSH] proximately caused [Dancy's] injuries...." Additionally, the complaint asserted that Augustus "affirmatively informed [EMSH] that she did not want [Dancy] removed from the facility for any reason, due to his mental condition and subsequent behavior."

¶ 12. MDMH pled, inter alia, that "[Dancy's] claims are barred by the provisions of the Mississippi Code Annotated Section 11-46-9 and in particular subsections (1)(b), (c), (d), (e), (f), (g), (h), (m), and (r)." MDMH filed a motion to dismiss and/or in the alternative motion for summary judgment in the circuit court. In support of its motion, MDMH argued that "the actions of EMSH were discretionary; therefore, MDMH is entitled to immunity pursuant to Miss.Code Ann. Section 11-46-9(1)(d)."

¶ 13. In response to the motion for summary judgment, Dancy argued that the functions of the defendants were ministerial, not discretionary, and, therefore, they were not entitled to immunity. Dancy also asserted if one assumed the functions were discretionary:

it is clear and...