Gallion v. Woytassek

• Decision Date: 13 August 1993
• Docket Number: No. S-91-384,S-91-384
• Citation: 504 N.W.2d 76,244 Neb. 15
• Parties: Donnelle GALLION, Appellant, v. Leonard E. WOYTASSEK et al., Appellees.
• Court: Nebraska Supreme Court

Page 76

504 N.W.2d 76

244 Neb. 15

Donnelle GALLION, Appellant, v. Leonard E. WOYTASSEK et al., Appellees.

No. S-91-384.

Supreme Court of Nebraska.

Aug. 13, 1993.

Syllabus by the Court

1. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

2. Pleadings: Words and Phrases. A statement of facts sufficient to constitute a cause of action means a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.

3. Judgments: Demurrer: Appeal and Error. An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken.

4. Physician and Patient. Generally, a physician's duty to exercise the required skill or standard of care must arise out of the physician-patient relationship. The relationship can be said to arise when the physician undertakes treatment of the patient.

5. Physician and Patient: Pleadings: Proof. The existence of a physician-patient relationship is normally a question of fact; however, the party claiming the existence of the relationship must allege some facts to show that the relationship came into existence.

6. Physician and Patient. It is clear that a physician-patient relationship does not arise by reason of a court-ordered examination of the physical or mental condition of a defendant.

7. Trial: Mental Competency. The question of whether a defendant is competent to stand trial is one of fact to be determined by the trial court, and the means employed in resolving the question are discretionary with the trial court.

8. Negligence: Pleadings. The longstanding rule is that to state a cause of action for negligence, one must plead facts from which it can be inferred that the defendant owed a legal duty to protect the plaintiff from injury, that the defendant failed to discharge that duty, and that damage proximately resulted from that failure.

9. Physician and Patient: Mental Competency: Actions: Damages: Immunity. A psychiatrist who has been directed by a court to evaluate a patient for the purposes of determining competency to stand trial is entitled to absolute immunity from a suit for damages based on that examination, made within the scope of his or her authority and while acting without willfulness, malice, or corruption.

10. Pleadings: Demurrer. The use of words alone, such as "maliciously," "intentionally," and "recklessly," without allegations of fact from which malice or corruption may be inferred, is insufficient to allege malice, corruption, or intentional wrongdoing in fact. Such words constitute mere legal conclusions. Where it is necessary to allege actual corruption, bad motive, or malice in order to state a cause of action, there must be an allegation of the ultimate facts from which the conclusion may be inferred in order to withstand a demurrer.

11. Demurrer: Pleadings. If a demurrer be sustained, the adverse party may amend the petition, if the defect can be remedied by way of amendment, with or without costs, as the court in its discretion shall direct.

12. Demurrer: Pleadings: Appeal and Error. Before error can be predicated upon the refusal of the court to permit an amendment to a petition after demurrer thereto is sustained, the record must show that under the circumstances, the ruling of the court was an abuse of discretion.

13. Demurrer: Pleadings. If there is no reasonable possibility that a cause of action can be stated after the sustaining of a demurrer, leave to amend the pleadings need not be granted.

Donnelle Gallion, pro se.

Don Stenberg, Atty. Gen., and Lynn A. Melson, Lincoln, for appellees Woytassek and Chung.

Douglas J. Peterson, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee Stone.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and LANPHIER, JJ.

HASTINGS, Chief Justice.

The plaintiff, Donnelle Gallion, appeals the order of the district court sustaining the demurrers of the defendants to Gallion's first amended petition and dismissing that petition.

Gallion's consolidated assignments of error allege that the court erred in necessarily finding that his petition failed to state a cause of action and that the court had no jurisdiction of the cause of action, in finding that his petition could not be cured, and in finding that his second amended petition was a nullity and of no effect.

This action was brought pursuant to the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1987 & Cum.Supp.1990). Gallion filed an amended petition on December 20, 1990, alleging that the defendants, Leonard E. Woytassek, director of the security unit of the Lincoln Regional Center; William R. Stone, Jr., consulting clinical psychologist on contract with the State of Nebraska; and Chin S. Chung, staff psychiatrist at the Lincoln Regional Center, had negligently diagnosed the appellant in regard to his competency to stand trial. The amended petition further alleged that Gallion had been placed in the Lincoln Regional Center for an examination to determine his ability to stand trial on charges of first degree assault and use of a weapon in the commission of a felony; that Woytassek diagnosed Gallion as suffering from a " 'delusional (paranoid) disorder of the persecutory type' " and as incompetent to stand trial without having complete and accurate information with which to formulate a diagnosis with reasonable medical certainty; that Stone, in his psychological evaluation, cited Lincoln Regional Center records "which he says indicates [sic] plaintiff had voiced the view that the judge and plaintiff's attorney 'are conspiring in some sort of plot' to keep plaintiff in jail because of some theft," that there exist no such records, and that therefore his diagnosis was negligently made on the basis of insufficient evidence; that Chung "suggested" that Gallion suffered from a psychotic paranoid disorder without having performed a full and complete psychiatric examination and that the negligence of all the defendants was intentional or willful or done with gross carelessness or recklessness. Gallion sought money damages.

The defendants demurred on the grounds of lack of jurisdiction and failure to state facts sufficient to state a cause of action. The time within which Gallion was to submit a brief in opposition to the demurrers was extended to March 8, 1991. Gallion failed to file a brief, but did file on March 14, without obtaining leave of court, a second amended petition. On March 21, the trial court sustained the demurrers for the reasons stated therein and because it did not appear that the defects in the first amended petition could be cured by amendment, and the first amended petition was dismissed. As to the second amended petition, filed March 14, the court found that it was filed without leave of court and more than 10 days after the filing of the demurrers and that therefore, that amended petition was of no effect.

We deal first with Gallion's last assignment of error, that the court erred in finding that the second amended petition was null and void. Because that amended petition appears to be identical in all pertinent aspects to the first amended petition, a ruling on the merits of the demurrers to the first amended petition would apply with equal force to the second amended petition. Therefore, we turn to a discussion of the merits of the demurrers.

In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Hamilton v. City of Omaha, 243 Neb. 253, 498 N.W.2d 555 (1993); Gerken v. Hawkins Constr. Co., 243 Neb. 157, 498 N.W.2d 97 (1993).

A statement of facts sufficient to constitute a cause of action means a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff. Hamilton v. City of Omaha, supra; Gerken v. Hawkins Constr. Co., supra.

Gallion's brief seems to urge that the trial court sustained the demurrers as to Woytassek and Chung on the theory of absolute immunity and as to Stone on the absence of a professional relationship. That does not appear in the record. The district court simply sustained the demurrers "for the reasons stated in said demurrers," which were lack of personal jurisdiction as to Stone, lack of subject matter jurisdiction as to Woytassek and Chung, and the absence of facts alleged sufficient to state a cause of action as to all three defendants. An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken. Keithley v. Black, 239 Neb. 685, 477 N.W.2d 806 (1991). We therefore address the claimed deficiency utilized in common by all defendants.

The ultimate claim of Gallion is that all three defendants were guilty of negligence in their diagnoses of Gallion's condition.

Generally, a physician's duty to exercise the required skill or standard of care must arise out of the physician-patient relationship. The relationship can be said to arise when the physician undertakes treatment of the patient. Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d 125 (1991).

In Flynn, the court, after citing several cases from other jurisdictions supporting those principles, went on to say: "Some courts, however, have held that a physician-patient relationship is not a necessary prerequisite for sustaining an action in medical...