DeMontiney v. Desert Manor Convalescent Center Inc.

• Decision Date: 22 January 1985
• Docket Number: No. 17479-PR,17479-PR
• Citation: 695 P.2d 255,144 Ariz. 6
• Parties: Theo DeMONTINEY, surviving parent of Bobby Alcaida, Plaintiff/Appellant, v. DESERT MANOR CONVALESCENT CENTER INC., an Arizona corporation; George M. O'Brien, M.D.; Yuma County, a political subdivision of the State of Arizona; and Health Systems Research Institute, a Utah corporation, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 255

695 P.2d 255

144 Ariz. 6

Theo DeMONTINEY, surviving parent of Bobby Alcaida, Plaintiff/Appellant, v. DESERT MANOR CONVALESCENT CENTER INC., an Arizona corporation; George M. O'Brien, M.D.; Yuma County, a political subdivision of the State of Arizona; and Health Systems Research Institute, a Utah corporation, Defendants/Appellees.

No. 17479-PR.

Supreme Court of Arizona In Banc.

Jan. 22, 1985.

Reconsideration Denied March 5, 1985.

Sorenson, Moore, Benham, Garrett & Julian by J. William Moore, Phoenix, for plaintiff/appellant.

Gallagher & Kennedy by Michael K. Kennedy, Phoenix, for Desert Manor.

Crampton, Woods, Broening & Oberg by Donald P. Crampton, Phoenix, for Yuma County.

Weyl, Guyer, MacBan & Olson by Thomas G. Bakker, Phoenix, for George M. O'Brien, and Health Systems.

GORDON, Vice Chief Justice:

This petition for review arises out of a wrongful death action. We accepted review to consider whether Yuma County effectively delegated the duty of care it owes "mental-hold" patients, and to consider whether the trial court erred in failing to instruct the jury on the special duty of care owed to patients known to have suicidal tendencies.

The relevant factual and procedural background of this case follow. On June 6, 1978, Bobby Alcaida was taken into custody by the Parker, Arizona, police after an unsuccessful attempt to commit suicide. The Parker Police transferred custody to Yuma County Deputy Sheriff, Buddy McCall. Deputy McCall transported Alcaida to Desert Manor Convalescent Center ("Desert Manor") in Yuma. Yuma County had contracted with Desert Manor to set aside three "security" rooms in its health-care facility to house "mental-hold" patients. Alcaida was admitted by Dr. George M. O'Brien, Medical Director of the Yuma County Health Department pursuant to a contract between Yuma County and Dr. O'Brien's employer, Health Systems Research Institute ("HSRI"), and placed in one of the three security rooms.

On the morning of June 7, 1978, the Superior Court entered an order detaining Alcaida at Desert Manor pending evaluation of his mental condition. After speaking with C.H. Darling, a Yuma County medical assistant and administrator, Alcaida signed a voluntary admission to the Arizona State Hospital. The Superior Court dismissed the petition for a court ordered evaluation and ordered Alcaida's release from Desert Manor. Because Desert Manor had a written rule which provided that no one was to enter a security room without a deputy sheriff and no deputy sheriff was on the premises when the order was issued, Alcaida was not released.

At approximately 7:25 p.m. that evening, Nurse Bauguss of Desert Manor went to check on Alcaida. She could not see him through the portal in the door of the room he was in and he did not respond to her call. She thought she saw "something" in the bathroom and believed Alcaida might have committed suicide. As no deputy sheriff was on the premises, she could not enter the room. She returned to the nurse's station and telephoned the Yuma County Sheriff's Department. Deputy McCall arrived at approximately 7:30 p.m., entered the room, and found Alcaida hanging by a bedsheet from an overhead pipe in the bathroom. At 7:55 p.m., Dr. O'Brien announced that Alcaida was dead.

Plaintiff-appellant Theo DeMontiney, the decedent's mother, filed an action for wrongful death against Desert Manor, Dr. O'Brien, HSRI, and Yuma County. The malpractice claims were presented to a Medical Liability Review Panel pursuant to A.R.S. § 12-567. The panel found no malpractice.

During trial, at the close of evidence, the trial court directed a verdict for Yuma County on all theories of liability, and for Desert Manor and Dr. O'Brien on the issue of punitive damages. The jury returned verdicts in favor of Desert Manor, Dr. O'Brien, and HSRI. Judgments were entered accordingly. Appellant's motion for a new trial was denied.

The Court of Appeals decided eight issues. Theo DeMontiney v. Desert Manor Convalescent Center, Inc., et al., 144 Ariz. 21, 695 P.2d 270 (1984). Appellant asks this Court to consider:

I. Whether Yuma County's motion for a directed verdict should have been granted.

II. Whether the trial court erred in refusing to give appellant's requested instruction 7.

III. Whether the trial court erred in refusing to give appellant's requested instructions 21, 26, and 27, and in modifying instruction 24.

IV. Whether the trial court erred in admitting at trial the findings of the Medical Liability Review Panel's decision concerning Desert Manor.

V. Whether the trial court erred in excluding evidence that Desert Manor's security rooms were not properly licensed. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and Ariz.R.Civ.App. P 23. We approve the Court of Appeals' opinion as to issues III, IV and V; with respect to issues I and II, the opinion is vacated.

DIRECTED VERDICT FOR YUMA COUNTY

The Court of Appeals, with one member dissenting, upheld the directed verdict in favor of Yuma County on the ground that the County was authorized to, and did, delegate its duty of care to mental-hold patients. We agree with the dissent that it is only the duty to provide services that is delegable; the overriding duty to provide care and treatment to a mental-hold patient is not.

Chapter 5 of Title 36 of the Arizona Revised Statutes authorizes the State Department of Health Services to provide mental health evaluation and treatment in certain circumstances. Persons may seek treatment from the department on their own, A.R.S. § 36-518, or "[a]ny responsible individual may apply for a court-ordered evaluation of a person who is alleged to be, as a result of a mental disorder, a danger to self or to others or gravely disabled and who is unwilling to undergo a voluntary evaluation." A.R.S. § 36-520(A). Because the liberty of a person alleged by another to be dangerous is at stake, we believe the statutes setting forth the specific course of action to be followed before such a person can be lawfully detained against his or her will, see A.R.S. § 36-520 et seq., must be strictly construed. A.R.S. § 36-530 provides that once a person is admitted to an evaluation agency, he or she:

"shall receive an evaluation as soon as possible after the court's order for evaluation and receive care and treatment as required by his condition for the full period that he is being evaluated." ¹

The parties agree that this section imposes a duty of care upon Yuma County. The question presented is whether that duty may be delegated by contract such that the county is thereby relieved of all liability to mental-hold patients.

In support of the argument that the duty of care is delegable, the majority of the Court of Appeals, and appellee-Yuma County, rely on A.R.S. §§ 36-545.06, -545.07 in effect at the time of Alcaida's detention and death. A.R.S. § 36-545.06(A) provided that:

"Each county, or any combination of counties, shall provide directly or by contract the services of a screening agency and an evaluation agency for the purposes of this chapter."

A.R.S. § 36-545.07(A) provided that:

"The department [of health services] may enter into contracts with screening agencies, evaluation agencies, and mental health treatment agencies to provide prepetition screenings, court-ordered evaluations, voluntary evaluation, treatment of voluntary patients and treatment of patients under the provisions of § 36-524 regardless of the ability of the patient or proposed patient to pay. A county may be a party to a contract as a provider of services or as a party making payments to an agency to provide services on the part of the county. The state hospital may be included in the contract as a provider of services and may receive consideration not inconsistent with law."

That the statutes permit a county to contract with public or private entities to provide services it is unable or unwilling to provide is perfectly clear. However, the statute does not authorize the county to delegate its duty to provide proper care and treatment under A.R.S. § 36-530. When a county contracts for services, the contractee assists the county in fulfilling that duty; it does not relieve the county of it. Were the statutes to provide otherwise, a mental-hold patient harmed by a contractee would have no recourse against the county even though it is the county that is expressly responsible for the person's care and treatment and it is the county that chose the contractee who provided the actual care. The legislature's concern for persons who, as a result of mental disorders, threaten their own safety and well-being is clear. It is in the public interest that the county remain ultimately liable for any breach of that very important duty. Absent clear indication by the legislature that it intended to permit the county to delegate the duty, we will not infer that it did.

In addition, we do not believe the Legislature intended a system in which a county's liability to mental-hold patients is based on the county's ability, or willingness, to provide services directly. We believe the statutes relied on were intended to alleviate difficulties in procuring medical personnel ² rather than to allow counties to avoid liability for a breach of the duty of care owed to mental-hold patients.

In directing a verdict for Yuma County, the trial court deprived appellant of the right to have a jury determine if the County was, in its own right or through the acts of its contractees, in breach of the duty of care owed to her son. We therefore remand to the trial court, for further proceedings consistent with our finding that appellant was deprived of the right to have the jury determine if Yuma County was negligent in its own right (i.e. negligent in contracting with an organization that appointed a surgeon as admitting officer in charge of persons with mental disorders; negligent in contracting with a health care facility that would not permit its...