Ex Parte Randall

• Decision Date: 27 April 2007
• Docket Number: 1050203.
• Citation: 971 So.2d 652
• Parties: Ex parte Hattie RANDALL, an employee of the Mobile County Department of Human Resources. (In re Robert D. Hernandez and Mary L. Hernandez, as surviving parents of their infant son, Douglas Hernandez, deceased v. Department of Human Resources of the State of Alabama et al.).
• Court: Alabama Supreme Court

971 So.2d 652

Ex parte Hattie RANDALL, an employee of the Mobile County Department of Human Resources (In re Robert D. Hernandez and Mary L. Hernandez, as surviving parents of their infant son, Douglas Hernandez, deceased

v.

Department of Human Resources of the State of Alabama et al.).

1050203.

Supreme Court of Alabama.

April 27, 2007.

Troy King, atty. gen., Kevin Newsom, deputy atty. gen., and Sharon E. Ficquette and James E. Long, asst. attys. gen., Department of Human Resources, for petitioner.

J. Bernard Brannan, Jr., of The Brannan Law Firm, P.C., Montgomery, for respondents.

BOLIN, Justice.

Hattie Randall, a social worker employed in Mobile County by the Department of Human Resources ("the Department"), petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying her motion for a summary judgment based on State-agent immunity in this wrongful-death action against her and to enter a summary judgment in her favor based on that defense. We grant the petition.

Facts

Douglas Hernandez, the two-month-old son of Robert D. and Mary L. Hernandez, died on August 30, 2002, while he was in the care of Melinda Poplin, who was operating Tiny Tots Family Day Care. Toxicology reports revealed the presence of several over-the-counter cough and cold medications in Douglas's blood, and his death was ultimately ruled a homicide. Douglas's parents sued the Department, its commissioner, and Hattie Randall, who at the time the parents filed the action had been employed by the Department for 18 years.¹ The Hernandezes alleged wrongful death and fraud and sought injunctive relief. Randall moved for a summary judgment, asserting as a defense State-agent immunity. After a hearing, the trial court denied Randall's motion. Randall filed this petition for the writ of mandamus.

At the time of the events made the basis of this action, Randall was serving as a day-care-licensing consultant for the Department. Randall's duties included visiting licensed and prospective licensed group-day-care home providers to evaluate the homes for purposes of licensing. At that time, Poplin was operating Tiny Tots Family Day Care out of her home and was licensed to care for as many as 12 children ranging in ages from infancy to 12 years old. Poplin had been a licensed group-day-care home operator since 1993.

Poplin had been notified by the Department in October 2001 that her license would soon expire and that she needed to submit an application for renewal. Poplin completed the license-renewal application and submitted it to the Department on February 13, 2002. Randall made an unannounced visit to the Poplin home on April 9, 2002, to evaluate it for the purpose of determining whether to renew Poplin's license.² During the evaluation, Randall reviewed certain records that Poplin was required to maintain pursuant to the Department's minimum standards.³ Section F.3.g. of those standards require that the home-day-care provider maintain certain records relating to the children in the provider's care, including (1) each child's preadmission form, (2) written medication authorizations, and (3) immunization certificates. The day-care provider must maintain these records two years after a child leaves the day-care home. Section E.2.d(1) of the minimum standards provides as follows regarding the written medication-authorization forms:

"No medication or medical procedures (prescription or over-the-counter) shall be administered without a written, signed authorization form from the child's parent(s)/guardian(s). Blanket authorization forms are prohibited. The authorization form shall include time(s) and date(s) to be administered, dosage, storage instructions, and specific directions for administering the medication/medical procedure, such as give by mouth, apply to skin, inhale, drops in eyes, etc. An authorization form shall be valid for no more than seven (7) days, unless accompanied by a written physician's statement."

(Emphasis in original.)

The licensing consultant is provided with a "Children's Records Checklist" to be completed when reviewing the records of the day-care provider. Randall determined that Poplin's records were not in compliance with the minimum standards. She indicated on the records checklist that Poplin had immunization certificates for only 2 of the 12 children in her care and that she had no preadmission forms for any of the children. Additionally, Poplin had no written medication-authorization forms on file for the children. However, Randall indicated on the records checklist that the written medication-authorization forms were not applicable to Poplin under the minimum standards. Randall stated that a written medication-authorization form is to be included in a child's file only if the day-care provider has administered medication to that child. Randall testified as follows regarding the medication-authorization forms:

"Q. Why did you determine that [the medication-authorization form] wasn't applicable?

"A. Minimum standards states that two forms are required for a child's checklist or to complete a child's file, and that is the preadmission form and the immunization certificate.

"Q. Why would that form have a blank for medical authorization on it?

"A. If it was needed.

"Q. Well, what would be a circumstance when it would be needed when you were doing this evaluation?

"A. If a child had been given medication, then the form should be there.

"Q. So was it your belief when you were doing this record check that she had never given a child medication?

"A. She had no medical authorization forms.

"Q. Yes, ma'am. And so as an evaluation person, did you believe that she had never given the children medication?

"A. When I do an evaluation, I check her files and I check what [is] there.

"Q. Okay.

"A. And if there are no forms, then she has not given any medication because the form is not there.

"Q. Okay. And how long would she be—if she had given medication to children and she had filled out those forms, how long would she have to keep them?

"A. A file is kept as long as a child is there.

"Q. They don't have to keep a file any longer than how long the child is there?

"A. If the child has not been in the home in over two years then they do not have to keep the files.

"Q. Okay. So if the child leaves, then they've got to keep the file for two years?

"A. Yes, sir.

"....

"Q. Did you look at any files on children other than the ones that were actually there at the time?

"A. No, sir.

"....

"Q. When you found that the child— the children that were currently there had no record of ever having a medical authorization for medication, did that— and with your experience of 18 years with the department, did that trigger any thought that, you know, maybe she's not keeping these records?

"A. No, sir.

"Q. Did it lead you to believe, you know, I might better look at these other children that used to be here to see if she's ever given medication to a child in her day care?

"A. No, sir."

Randall marked the "Compliance" box on a child-care home-licensing evaluation form with a "D," indicating that Randall had discussed with Poplin compliance with the Department's standard requiring a written authorization form before she could administer medication to a child in her care. Randall explained in her affidavit that she had discussed with Poplin the requirement of administering medication only with written parental authorization and that Poplin confirmed that she was compliant with the policy. Further, Poplin had a written operating policy for her home day care indicating that she administered medication only with written parental authorization.

Section E.2.d(2) of the Department's minimum standards requires that any prescription or over-the-counter drug to be administered to a child in day care be in its original container and be labeled appropriately with specific instructions for administering the drug and that a measuring device be provided if the medication requires measuring. Section E.2.d(3) requires that all medication in the home be kept in a locked cabinet or other container. Section E.2.d(4) requires that all medications be returned to the child's parent or guardian when no longer needed.

Randall marked the "Compliance" box on the child-care home-licensing evaluation form with an "S," indicating that Poplin had certified that she had a measuring device for administering medications and that medications were returned to parents or guardians when they were no longer needed. Randall indicated that Poplin was in violation of the requirement that all medications in the day-care home be kept in a locked cabinet or container by marking the "Non-compliance" box with a "D," indicating that she had discussed with Poplin the violation of this standard. Randall testified regarding her determinations as to the minimum standards as follows:

"Q. Okay. You've got an S here under medicines returned to child's parent when no longer needed, and you've got an S there instead of a D?

"A. Yes, sir.

"Q. What did you do more than discuss that?

"....

"A. Ms. Poplin told me that she gave the medicine back, and we discussed that that was the procedure. We discussed that that was the procedure.

"Q. Did not that send up a red flag that there were no medical authorizations if she told you that she was sending medicine back with the parents when they didn't need it any more?

"A. Let me correct my statement. We discussed how—what the procedure was if she received medication, then the procedure was to give it back to the parent.

"Q. And again, my—

"A. And we discussed that.

"Q. Okay. And again my question— there are 20 entries on this page under health all the way down through care of infants. There are 20 entries, and you've got D for every one of them except you certified in some method measuring device provided and you certified in some method medicines returned to child's parent...