Gleason v. Beesinger

• Decision Date: 30 January 1989
• Docket Number: Civ. A. No. H-86-4480.
• Citation: 708 F. Supp. 157
• Parties: James A. GLEASON, Plaintiff, v. Dr. David E. BEESINGER, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

708 F. Supp. 157

James A. GLEASON, Plaintiff, v. Dr. David E. BEESINGER, et al., Defendants.

Civ. A. No. H-86-4480.

United States District Court, S.D. Texas, Houston Division.

January 30, 1989.

Richard L. Arnold, Robins, Zelle, Larson & Kaplan, Dallas, Tex., and David B. Dickinson, Houston, Tex., for plaintiff.

J. Mark Holbrook, Asst. Atty. Gen., Austin, Tex., Gordon M. Carver, III, Dunn, Kacal, Adams, Livingston, Pappas & Law, and Dan Ryan, Ryan & Marshall, Houston, Tex., for defendants.

MEMORANDUM AND ORDER

LAKE, District Judge.

Dr. C.B. Goswick, a physician employed by Texas A & M University, asserts by motion to dismiss the defense of "quasi-judicial" immunity from suit for alleged medical malpractice. For the reasons discussed below, the Court DENIES the doctor's motion.

I. FACTS

In October of 1984, while James Gleason was attending Texas A & M, he was involved in a bicycle/car accident and suffered a compound fracture in his lower left leg. Gleason was initially treated at St. Joseph's Hospital in Bryan, Texas, by Dr. Lawrence Coleman and Dr. David Beesinger, who operated on and treated his leg. Gleason was later transferred to the A.P. Beutel Health Center on the Texas A & M campus. The Health Center provides care to students attending Texas A & M. Gleason's treatment at the Health Center was undertaken by Dr. C.B. Goswick, a physician licensed to practice in Texas and the Director of Student Health Services at Texas A & M in College Station.

Gleason's medical malpractice action, founded on diversity jurisdiction, alleges damages as a result of improper care rendered by Drs. Goswick, Coleman, and Beesinger, the Health Center, and Texas A & M. Gleason contends that Dr. Goswick failed to take proper preventative measures against infection, failed to properly diagnose the developing infection in his leg, failed to provide proper treatment for the infection once it had developed, and failed to timely refer Gleason to a specialist who could properly treat his condition.

Texas A & M and the Health Center were dismissed for lack of subject matter jurisdiction because state agencies are not citizens for purposes of diversity jurisdiction. Dr. Beesinger was dismissed by agreement of the parties. Dr. Goswick now moves to dismiss under the theory that he is immune from liability under the doctrine of "quasi-judicial" or "official" immunity. Dr. Goswick's motion must be treated as a motion for summary judgment since he supports it by affidavit and deposition testimony properly reserved for a summary judgment motion under Fed.R.Civ.P. 56.

II. GOVERNING LAW

The issue of a treating physician's quasi-judicial immunity in a medical malpractice action is one of first impression under Texas law. Since neither the Texas Supreme Court nor other Texas courts have ruled on the issue, this Court must formulate a rule of law independently. Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1091-92 (5th Cir.1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 783, 83 L.Ed.2d 777 (1985); Stool v. J.C. Penney Co., 404 F.2d 562, 563 (5th Cir.1968). In doing so, the Court may consider all available legal sources. Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397-98 (5th Cir.), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986); Seafirst Commercial Corp. v. U.S. Fidelity & Guaranty Co., 780 F.2d 1290, 1295 (5th Cir.1986). In the absence of controlling precedent, the Court must decide the issue in accord with how it believes the Texas Supreme Court would decide the issue. Green v. Amerada-Hess Corp., 612 F.2d 212, 214 (5th Cir.), cert. denied, 449 U.S. 952, 101 S.Ct. 356, 66 L.Ed.2d 216 (1980). In deference to the State's highest court, this Court explains the legal analysis on the issue with greater elaboration than normally befits decisions of a district court.¹

A. Quasi-Judicial Immunity in Texas

"Quasi-judicial" or "official" immunity is a form of common law immunity afforded to public officers and employees for tortious acts done within the course and scope of their duties. Richardson v. Thompson, 390 S.W.2d 830, 834 (Tex.Civ.App. — Dallas 1965, writ ref'd n.r.e.). The immunity applies only to "discretionary" acts; officials are subject to suit for "ministerial acts" to the same extent as any other private citizen. Torres v. Owens, 380 S.W.2d 30, 33-34 (Tex.Civ.App. — Corpus Christi 1964, writ ref'd n.r.e.); Baker v. Story, 621 S.W.2d 639, 645 (Tex.Civ.App. — San Antonio 1981, writ ref'd n.r.e.). The distinction between discretionary and ministerial functions thus becomes critical in determining the applicability of the immunity in a particular case.

This distinction is far from settled by Texas courts, however. Generally, discretionary acts are those requiring personal deliberation, decision and judgment, while ministerial acts are those requiring obedience to orders or the performance of a duty in which the actor is left no choice of his own. Baker v. Story, 621 S.W.2d at 645; Austin v. Hale, 711 S.W.2d 64, 67 (Tex. App. — Waco 1986, no writ). Application of these broad definitions has proved difficult, however, and case law dealing with these concepts provides little guidance to courts when fresh facts are presented.

For example, in Baker v. Story, the court observed that the distinction between discretionary and ministerial functions is "not only a fine-spun distinction; it is, for practical purposes, unworkable." The court cogently noted that:

It seems almost impossible to draw any clear and definite line, since the distinction, if it exists, can be at most one of degree. `It would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.'

Baker, 621 S.W.2d at 645 (citing W. Prosser, The Law of Torts § 132, p. 990 (4th ed. 1971)).

In analyzing the discretionary/ministerial test, the Baker court relied on Comley v. Emanuel Lutheran Charity Board, 35 Or.App. 465, 582 P.2d 443 (1978). The Comley court, in a lengthy discussion of the "elusive term `discretionary' and its opposite `ministerial,'" concluded that whether certain conduct is discretionary should be "guided by the purpose of the immunity doctrine." Id. 582 P.2d at 449. The principle underlying the discretionary act exception to liability is that "it is essential for efficient government that certain decisions of the executive or legislative branches of the government should not be reviewed by a court or a jury." Id. This exception acted "to preserve the separation-of-powers principle upon which our government was founded." Id. at 450. The court characterized the discretionary/ministerial acts distinction as a distinction between policy-making action and implementative action. Policy-making actions are decisions "which require governmental judgment and judicial abstention." Id. Implementative actions, on the other hand, are decisions "which do not involve the balancing of public considerations and are susceptible to judicial examination." Id.

Acts of implementation ... have no quality of political or governmental judgment about them which would cause the judiciary to abstain from applying the rules of due care just as it does when such acts are performed in a non-governmental setting.

Id. In applying these principles to medical malpractice actions, the Oregon court concluded that the negligent acts of a medical doctor employed by the state did not involve matters of governmental discretion. The alleged malpractice of a state-employed doctor therefore fell outside the immunity granted to state employees in the performance of discretionary acts.

In Baker the court of civil appeals reversed an instructed verdict in favor of a physician employed by the University of Texas Medical School in San Antonio because the evidence did not establish as a matter of law the nature of his duties, and thus that they were "quasi-judicial" in nature. 621 S.W.2d at 645. Similarly, in Salcedo v. Diaz, 647 S.W.2d 51, 53-54 (Tex. App. — El Paso), rev'd on other grounds, 659 S.W.2d 30 (Tex.1983), the court held that the trial court should not have sustained a special exception asserting that the physician was immune from suit as a governmental employee performing discretionary functions because the pleadings did not demonstrate that the duties of a physician employed by the state were quasi-judicial. 647 S.W.2d at 54.

In both Baker and Salcedo the courts discussed official immunity for state-employed treating physicians, but never decided the issue. In both cases the courts reversed and remanded on procedural grounds. Baker, 621 S.W.2d at 646; Salcedo, 647 S.W.2d at 54. In the present case, by contrast, the summary judgment facts are established to a degree sufficient to permit this Court to address the underlying legal issue of the applicability of official immunity to a treating physician.

While no Texas court has directly decided whether a state-employed physician has official immunity, Texas decisions dealing with official immunity of other state employees are instructive. The duties of jailers and sheriffs in receiving and caring for prisoners are held to be ministerial and thus not protected. Browning v. Graves, 152 S.W.2d 515, 519 (Tex.Civ.App. — Fort Worth 1941, writ ref'd) (negligent sheriff liable for fatal injuries to prisoner). Police officers' duties have been classified as ministerial when negligence occurs in the operation of a police vehicle responding to a call. Eubanks v. Wood, 304 S.W.2d 567, 570 (Tex.Civ.App. — Eastland 1957, writ ref'd n.r.e.). On the other hand, employees of the Board of Navigation and Canal Commissioners acted in a discretionary manner and were immune from liability when making a contract for dredging and letting it to a particular contractor. Torres v. Owens, 380 S.W.2d 30, 34 (Tex.Civ.App. — Corpus Christi 1964, writ ref'd n.r.e.). Similarly, a state employee responsible...