Gordon v. Milwaukee County

• Decision Date: 15 May 1985
• Docket Number: No. 84-1576,84-1576
• Citation: 125 Wis.2d 62,370 N.W.2d 803
• Court: Wisconsin Court of Appeals
• Parties: Betty M. GORDON, as personal representative of Thomas J. Gordon, III, Plaintiff-Appellant, v. MILWAUKEE COUNTY, Milwaukee County Medical Complex, Milwaukee County Mental Health Complex and Medical College of Wisconsin, Inc., Defendants-Respondents.

Page 803

370 N.W.2d 803

125 Wis.2d 62

Betty M. GORDON, as personal representative of Thomas J Gordon, III, Plaintiff-Appellant, v. MILWAUKEE COUNTY, Milwaukee County Medical Complex Milwaukee County Mental Health Complex and Medical College of Wisconsin, Inc. Defendants-Respondents.

No. 84-1576.

Court of Appeals of Wisconsin.

Submitted on Briefs March 5, 1985.

Opinion Released May 15, 1985.

Opinion Filed May 15, 1985.

Kershek & Kershek, Milwaukee, for plaintiff-appellant; E. Joseph Kershek, Milwaukee, of counsel.

Robert E. Andrews, Principal Asst. Corp. Counsel, Milwaukee, for defendant-respondent Milwaukee County.

Before WEDEMEYER, P.J., and MOSER and SULLIVAN, JJ.

WEDEMEYER, Presiding Judge.

Betty Gordon, acting as personal representative for the estate of Thomas Gordon III, her son, appeals from a summary judgment which dismissed her claim against Milwaukee County, the Milwaukee County Medical Complex, and the Milwaukee County Mental Health Complex (collectively, the county). Gordon alleged that the county, through its employees, was negligent in its diagnosis and treatment of Thomas's mental condition and that it was negligent in releasing Thomas when it knew or should have known he was suicidal. The trial court held that the county's actions were protected by governmental immunity under sec. 893.80(4), Stats. ¹ We hold that because the decision to release a person detained under sec. 51.15, Stats., ² requires the application of statutory language to the facts of the case, the decision is quasi-judicial and is protected by governmental immunity. We further hold, however, that because the diagnostic procedure followed by government psychiatrists involves only medical discretion, and not governmental discretion, negligence in the examination, testing, and diagnosis of the person detained is not protected by governmental immunity. Finally, we hold that because the affidavits submitted on the motion for summary judgment show the existence of genuine issues of material fact, the trial court erred in granting summary judgment for the county. We therefore reverse the judgment and remand the case for further proceedings.

On the evening of February 20, 1981, Thomas Gordon drove his car into a concrete bridge abutment. He told the police officers who came to investigate that he had attempted to commit suicide. The officers detained him for observation, pursuant to sec. 51.15, Stats. He was treated for minor physical injuries and was admitted to the Milwaukee County Mental Health Complex at 12:45 a.m. on February 21. The mental health complex treatment director's designee determined, pursuant to sec. 51.15(4)(b), that Thomas was not eligible for involuntary commitment under sec. 51.20(1)(a). ³ Thomas was released at approximately 11:30 that morning. He returned to his mother's home with his mother and his brother. Within an hour of his release, Thomas committed suicide.

Betty Gordon, Thomas's mother, filed a claim against Milwaukee County, the medical complex, and the mental health complex, alleging that the medical and psychiatric personnel were negligent in their diagnosis, treatment, and release of Thomas. The trial court granted the county's motion for summary judgment and dismissed Gordon's claim. It held that the county was immune from suit because the decision to release a person detained is "quasi-judicial" within the meaning of sec. 893.80(4), Stats., and the county's unrebutted affidavits showed that the decision to release Thomas was properly made. We reverse.

GOVERNMENTAL IMMUNITY

Under sec. 893.80(4), Stats., no suit may be brought against a governmental body for the acts of its officers or employees done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions. The crux of the concept embodied in this subsection is the doctrine of separation of powers. The purpose of immunity is to ensure that courts will refuse to pass judgment on the policy decisions made by coordinate branches of government, if such a policy decision, consciously balancing risks and advantages, occurred. See Scarpaci v. Milwaukee County, 96 Wis.2d 663, 687, 292 N.W.2d 816, 827 (1980). A major difficulty which may be avoided by applying principles of immunity is that a tort suit " 'furnishes an inadequate crucible for testing the merits of social, political, or economic decisions.' " Payton v. United States, 636 F.2d 132, 143 n. 26 (5th Cir.1981).

The governmental functions which are immune from court review are sometimes denominated "discretionary" functions. In Scarpaci, the supreme court stated that the terms "discretionary" and "quasi-judicial or quasi-legislative" were synonymous. 96 Wis.2d at 683, 292 N.W.2d at 826. The court defined a "quasi-judicial" act as one which involved the exercise of judgment and discretion in the application of a rule to specific facts. Id. at 683, 292 N.W.2d at 825-26.

In Scarpaci, the plaintiffs sued the county medical examiner for performing an autopsy on the plaintiffs' decedent which the plaintiffs alleged was not authorized by them or by the statute delineating when autopsies should be performed. The supreme court concluded that because the medical examiner's decision whether to perform an autopsy required that the examiner make an inquiry into the facts, apply the statute to the facts, and decide whether to perform the autopsy based on his or her subjective evaluation of the facts and the law, the decision whether to perform the autopsy was quasi-judicial under sec. 895.43(4), Stats.

The decision made by the treatment director (or treatment director's designee) to detain or release a person under sec. 51.15(4), Stats., is similar to the medical examiner's decision whether to conduct an autopsy. The treatment director must make an inquiry into the facts of the person's case, must apply sec. 51.20(1)(a) to those facts, and must decide whether to release the person based on his or her evaluation of the facts and the statute. Under Scarpaci, then, the decision whether to release a person detained under sec. 51.15 is quasi-judicial within the meaning of sec. 893.80(4), Stats., and is protected by governmental immunity.

Our inquiry does not end here, however, because Gordon has alleged that county employees were negligent not only in releasing Thomas, but also in their examination and diagnosis of him. This is, in effect, an allegation that the county psychiatric and medical personnel were negligent in their inquiry into the facts of Thomas's case. We therefore must decide whether the "fact finding" portion of a quasi-judicial decision whether to release a person under sec. 51.15(4), Stats., also is covered by governmental immunity. We hold that it is not.

An inquiry into the condition of a person alleged to be mentally ill requires that a psychiatric examination and diagnosis be performed. Performance of such an examination and diagnosis calls for the exercise of considerable judgment and discretion, but the discretion used is professional, or medical, not governmental. The Scarpaci court drew a distinction between medical and governmental discretion. See Scarpaci, 96 Wis.2d at 686-87, 292 N.W.2d at 827. It stated: " 'It is only when the conduct involves the determination of fundamental governmental policy and is essential to the realization of that policy, and when it requires "the exercise of basic policy evaluation, judgment and expertise" that the immunity should have application....' " Id. at 687, 292 N.W.2d at 827 (quoting Restatement (Second) of Torts sec. 895B comment d (1977)). A psychiatric examination and diagnosis does not involve the determination or effectuation of governmental policy. It therefore is not covered by governmental immunity.

The federal circuit courts of appeal reach a similar result when interpreting 28 U.S.C. sec. 2680(a) of the Federal Tort Claims Act (F.T.C.A.). Section 2680(a) contains an exemption for "discretionary functions." The courts, in determining whether decisions which involve some element of discretion are covered by immunity, distinguish between those decisions which are made at the "planning" level and those which are made at the "operational" level. "The general rule is that discretionary functions [within the meaning of the F.T.C.A.] are ones which involve policy choices." Jablonski v. United States, 712 F.2d 391, 396 (9th Cir.1983).

Obviously, attending to many day-to-day details of management involves decisions and thus some element of discretion.

The exercise of this kind of discretion does not fall within the discretionary function exemption. The distinction generally made in the application of the discretionary function exemption is between those decisions which are made on a policy or planning level, as opposed to those made on an operational level.

Thompson v. United States, 592 F.2d 1104, 1111 (9th Cir.1979).

The court held in Jablonski that a government psychiatrist's failure to obtain a patient's medical records was an "operational" act, not a discretionary act involving planning, and thus was not immune under the F.T.C.A. 712 F.2d at 396-97. In Payton v. United States, 679 F.2d 475, 480-81, 482-83 (5th Cir.1982), the court held that allegations that government psychiatrists had examined and treated a patient negligently were not covered by the discretionary functions exemption. Accord, Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86, 93-94 (Kan.1983) (psychiatrists' recommendation that patient no longer needed treatment was part of professional employment and was not insulated from liability if negligent). We find the reasoning of these cases persuasive.

The county argues that it should be held immune here, because a mental patient's future conduct cannot be accurately determined, and the county will be found liable merely for failing to accurately predict the future course of a patient's disease. The county overstates the burden placed upon it. It may be found liable...