Davis v. North Carolina Dept. of Human Resources

• Decision Date: 19 December 1995
• Docket Number: No. COA95-190,COA95-190
• Citation: 121 N.C.App. 105,465 S.E.2d 2
• Parties: Harold DAVIS, Administrator of the Estate of Phillip Davis, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Defendant.
• Court: North Carolina Court of Appeals

Page 2

465 S.E.2d 2

121 N.C.App. 105

Harold DAVIS, Administrator of the Estate of Phillip Davis, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, Defendant.

No. COA95-190.

Court of Appeals of North Carolina.

Dec. 19, 1995.

Duke & Brown, by John E. Duke, and Jonathan S. Williams, Goldsboro, for plaintiff-appellee.

Attorney General Michael F. Easley, by Assistant Attorney General William H. Borden, Raleigh, for defendant-appellant North Carolina Department of Human Resources.

GREENE, Judge.

The North Carolina Department of Human Resources (defendant) appeals a Decision and Order of the North Carolina Industrial Commission (Commission), awarding Harold Davis (plaintiff), as administrator of the estate of Phillip Davis (Davis), damages for injuries occurring when Dondiago Rivers (Rivers) was released from Cherry Hospital where he had been involuntarily committed, and subsequently killed Davis.

Rivers had been committed to state mental hospitals on eleven separate occasions. He had a history of aggressive, hostile behavior, and had been previously convicted for shoplifting, damage to personal property, assault on a female, trespassing and communicating threats. On 17 February 1982, Rivers pled guilty and was sentenced to six years in prison for voluntary manslaughter, after he beat a man's head against a sidewalk until the man died. On 2 October 1984, Rivers was arrested for assault on a female and carrying a concealed weapon, after he chased after his victim with a knife in hand.

By Order dated 19 October 1984, the trial court found that Rivers was incapable to stand trial, and should be involuntarily committed pursuant to N.C.Gen.Stat. § 15A-1003. On 25 October 1984, the court found Rivers mentally ill and dangerous to others and involuntarily committed him to Cherry Hospital for 30 days. Rivers was reevaluated and on 15 November 1984 was recommitted to Cherry Hospital for another 180 days.

While at Cherry Hospital, Rivers got into fights, and threatened patients and staff members. He was transferred to the "high management" unit because of his fighting and anti-social behavior. Rivers was sent back to the behavior modification unit on 20 February 1985, where Dr. Perumallu saw Rivers on a weekly basis. Rivers was treated with medication to stabilize his behavior and showed improvement over the next two months. A report by Dr. Perumallu prepared 26 April 1985 stated that for the previous two months Rivers had not shown "any physical and verbal aggressive behavior" and recommended that Rivers was ready to stand trial at this time and "does not meet the criteria for commitment."

At the hearing to determine whether Rivers should be discharged to stand trial, Dr. Perumallu testified that Rivers was responding well to medication, was not a threat or danger to others, but due to his drug and alcohol problems or if he stops taking the medication, which lead to his mental and behavioral problems, he should be supervised upon being released from the hospital. Dr. Perumallu wrote in his discharge report, made only days after the release hearing, that "[i]n view of the past violence and his inability to understand his illness, inability to take medications, stress and at times taking marijuana and alcohol, even though patient denies the problems, all these factors" may cause a "crisis of violence" and "dangerousness in the community." Dr. Perumallu's prognosis for Rivers was "very guarded ... in view of ... his ... stress situations, [and] altered mental state functionings."

Although Rivers was found mentally ill, he was not found to meet the criteria for commitment, and was ordered discharged from Cherry Hospital by Judge Arnold Jones, the District Court Judge presiding, who had previous knowledge of Rivers' mental state and aggressive behavior from Rivers many times in court on other charges as well as a similar commitment hearing in 1978.

Upon discharge, Rivers was released into the custody of the Wayne County Sheriff's Department. He was then evaluated at Dorothea Dix Hospital by Dr. Groce, who gave the opinion that at times Rivers was not able to tell right from wrong, and recommended that Rivers was "capable of proceeding to trial," but stated that whether he is found not guilty due to insanity or guilty, he should continue receiving treatment. Dr. Groce found that Rivers "may continue to present a danger to himself or to other people in the community."

Rivers was discharged to the Sheriff's Department with a two-week supply of medication, and a weekly follow-up plan for individual On 5 June 1985 Rivers pled guilty to assault on a female and carrying a concealed weapon. District Court Judge Joseph Setzer, who had once prosecuted Rivers on voluntary manslaughter, sentenced Rivers to two years in prison, but suspended it for three years, with two years of supervised probation.

therapy at the Wayne Mental Health Center.

On 18 August 1985, Davis was with two friends in Goldsboro. Rivers walked across an intersection in front of Davis' car pointing at the car and saying something that could not be heard. Davis got out of the car, went to the trunk and got a "tire tool," at which time Rivers ran off. Two blocks down the road, Davis and his friends stopped at a club to buy some beer. While Davis was walking back to the car, Rivers ran up from behind and hit Davis on the head with a fence post, fracturing Davis' skull and killing him.

Plaintiff brought suit before the Commission, pursuant to the North Carolina Tort Claims Act, alleging negligence by the State for releasing Rivers from Cherry Hospital when it knew or should have known that Rivers was violent and dangerous to others.

Plaintiff's affidavit, filed with the Commission pursuant to N.C.Gen.Stat. § 143-297, listed the "North Carolina Department of Human Resources, Division of Mental Health, Cherry Hospital, Thomas E. Buie, Jr., M.D., Director of Clinical Services" as the name of the department, institution or agency of the state against which the claim is asserted and the name of the state employee who was alleged to be negligent. The affidavit's statement of facts states in part that "prior to August of 1985, one Dondiago Rivers was a patient at Cherry Hospital, and has been a mental patient at Cherry Hospital for sometime ...; that the said department, acting by and through Thomas E. Buie, Jr., negligently caused Dondiago Rivers to be released in a violent state to his home county of Wayne County, North Carolina."

Dr. Malekpour, an expert in the field of psychiatry who had cared for Rivers at another facility, testified before the Commission that a reasonable standard of care required a report to the court that Rivers was "highly dangerous" and a person "who needed to be confined in one form or the other."

Defendant's motion for summary judgment was denied. The Commission found that as Rivers' treating physician, Dr. Perumallu

was under a duty to exercise reasonable care in his treatment of Rivers in preparation for release to stand trial and more importantly in his recommendations to the court, who would rely thereon in determining whether Rivers was dangerous to himself or others. This duty extends to those in the community who might come to harm at the hands of Rivers if released when dangerous to himself or others.

15. Dr. Perumallu breached the above-described duty owed to Phillip Davis and others when he reported to the court that Rivers was not dangerous to himself or others. .... Judge Jones relied on Dr. Perumallu's recommendation that Rivers was not dangerous and the end result was that Rivers was released and committed murder again.... Dr. Perumallu knew or should have known that Dondiego [sic] Rivers did not have a structured environment outside of the hospital and was not likely to take his medication as prescribed. Dr. Perumallu knew or should have known that while Rivers may have stabilized for a few months, he was likely to go off his medication, decompensate quickly, and likewise quickly become a danger to the community. The fact that it was Judge Jones who made the ultimate decision or that Dr. Perumallu may have assumed Rivers was going back into the criminal justice system and would hopefully receive an appropriate disposition there is irrelevant....

....

17. Dr. Perumallu's breach was the proximate cause of Phillip Davis' death. It was reasonably foreseeable that Rivers if released would harm or murder someone else.

Plaintiff was awarded $100,000 for damages. Defendant appeals. ______

The issues are whether (I) the award should be dismissed because the affidavit does not name the negligent employee responsible for Davis' death; and (II) the evidence was sufficient to find negligence by the defendant, causing Davis' death.

I

Defendant argues that plaintiff failed to include in his affidavit "the name of the State employee upon whose alleged negligence the claim is based." N.C.G.S. § 143-297(2) (1993). Plaintiff's affidavit stating its claim against the State, filed with the Commission, listed "Thomas E. Buie, Jr., M.D., Director of Clinical Services" at Cherry Hospital, as the negligent employee. Defendant contends that "the evidence does not tend to show that Dr. Buie was negligent or involved in the release of Mr. Rivers," but focuses on Dr. Perumallu's negligence, who was not added to the affidavit, and therefore "this claim against the defendant should be dismissed."

The purpose of requiring a claimant to name the negligent employee of the State agency is to enable the agency to investigate the employee involved and not all employees. Distributors, Inc. v. Dept. of Transp., 41 N.C.App. 548, 551, 255 S.E.2d 203, 206, cert. denied, 298 N.C. 567, 261 S.E.2d 123 (1979). Furthermore, although the Tort Claims Act is strictly construed, the rule of strict construction should not be replaced by one of "technical stringency." Id. at 550, 255 S.E.2d at 205 (holding that although affidavit named only one...