Hudson v. Rausa

Decision Date21 November 1984
Docket NumberNo. 55101,55101
PartiesEmma HUDSON v. Alfio RAUSA and Mavis Green.
CourtMississippi Supreme Court

William Liston, Alan D. Lancaster, Liston, Gibson & Lancaster, Winona, for appellant.

David E. Flautt, Tommie Williams, Upshaw & Ladner, Greenwood, Bill Patterson, McCoy, Wilkins, Noblin, Anderson & Stephens, Oscar P. Mackey, Guy N. Rogers, Jackson, for appellees.

Before WALKER, P.J., HAWKINS and ROBERTSON, JJ., and SUGG, Retired Supreme Court Justice.

SUGG, Retired Supreme Court Justice, for the Court: 1

The questions in this case are whether, and to what extent, employees of the State Department of Health enjoy immunity to a civil action for damages arising out of the performance of their official duties. The answer to these questions ultimately turns on whether the acts complained of were discretionary acts as opposed to ministerial acts. The trial court held that at the time in question these defendants were acting in their discretionary capacity and, accordingly, enjoyed immunity in the face of this suit. We agree and affirm.

This action was instituted by Emma Hudson, widow of Earl Hudson, under the provisions of our Wrongful Death Statute (Section 11-7-13, Mississippi Code Annotated, 1972), on behalf of herself and the four children of Earl Hudson. In the amended complaint the State of Mississippi and two others were named as defendants along with Alfio Rausa and Mavis Green. All defendants except Rausa and Green were dismissed by the plaintiff. Hudson alleged her husband's death on February 23, 1981, was caused by the negligence of Rausa and Green as follows:

(a) in prescribing INH to the decedent when they knew or should have known that due to his age and other relevant factors that his taking of said drug was contra-indicated in that it created an unreasonable risk of death;

(b) in failing to properly inform the decedent of the possible consequences of his taking INH when they knew or should have known of said consequences, thereby depriving him of the opportunity to make a reasoned and voluntary decision as to whether to subject himself to the proposed course of treatment;

(c) in failing to properly diagnose the decedent's medical condition;

(d) in failing to perform tests to determine the cause of the decedent's symptoms;

(e) in failing to administer a proper course of medical treatment of the decedent's condition; and

(f) in failing to recommend that the decedent cease taking INH when they knew or should have known that his continuing to take said drug could forseeable [sic] result in his death.

In paragraphs IV and V of her complaint, Hudson alleged:

At all times hereinafter mentioned, the defendant, Alfio Rausa, was a duly licensed physician under the laws of the State of Mississippi and was acting in his individual capacity and within the scope of his employment with the Mississippi State Board of Health, an agency of the State of Mississippi, as the District Health Officer for District III of said Board and the local county health officer for the Montgomery County Health Department, Montgomery County, Mississippi, a subdivision of said Board.

At all times hereinafter mentioned, the defendants, Mavis Green, Belinda Chambley and Gail Rogers, were employees of the Montgomery County Health Department, a subdivision of the Mississippi State Board of Health, and were acting in their individual capacities and within the scope of their employment as health nurses with said Health Department and were under the direction, supervision and control of the defendants, Alfio Rausa and the State of Mississippi.

Rausa and Green filed separate answers and in each answer the defendants as a first defense pled the complaint failed to state a claim upon which relief could be granted. Their second defense was that they were immune from suit. Both defendants fully answered the complaint and concluded with affirmative defenses.

In answer to paragraph IV of the complaint, Dr. Rausa admitted that he was a duly licensed physician acting within the scope of his employment with the Mississippi State Board of Health as District Health Officer for District III but denied he was acting in his individual capacity.

In her answer, Green admitted only that she was an employee of Montgomery County Health Department, a subdivision of the Mississippi State Board of Health, and that she was acting within the course and scope of her employment with the Health Department under the direction, supervision, and control of Dr. Rausa and the State of Mississippi. With reference to the other allegations of paragraph V, Green stated she was without sufficient information to form a belief as to the truth or correctness of the allegations. All of the parties, both complainants and defendants, filed requests for admissions and interrogatories which were answered by the respective parties.

Dr. Rausa and Green filed separate motions to dismiss under Rule 12(b)(6), asserting the complaint failed to state a cause of action upon which relief could be granted by reason of immunity.

When the motions came on for hearing, the trial judge considered matters outside the pleadings, 2 and granted summary judgment for defendants dismissing the complaint with prejudice at the cost of plaintiff. In his order of dismissal the judge found without contradiction several important matters:

1. That Defendants Alfio Rausa and Mavis Green are, as employees of the Mississippi State Department of Health, public officials who are each vested with discretionary authority.

2. That Plaintiff does not contend that either of the said Defendants, at any relevant time, were acting outside the scope of their respective employments to the Mississippi State Department of Health.

3. That each and every allegation contained in the Amended Complaint regarding the alleged negligent acts of the various Defendants necessarily involves the actions of those Defendants in their discretionary capacities.

4. That, therefore, Defendants Alfio Rausa and Mavis Green, as public officials, acting within the scope of their employment, and further as public officials acting within the scope of the discretionary authority with which they are vested, are immune from suit in these premises.

No counter affidavits were filed by plaintiff as authorized under Rule 56. There was no genuine issue of material fact, and defendants were entitled to judgment as a matter of law.

Earl Hudson was the named contact of an individual, Marshall Forrest, who had been diagnosed as having infectious tuberculosis. Forrest and Hudson both worked at the Kimco Plant, a factory which according to Dr. Rausa "suggested the possible inhalation of asbestos and silica fibers, both of which would be likely to impair or reduce an individual's lung capacity." Dr. Rausa further stated in answer to interrogatory 7 that Earl Hudson was a high risk contact of Marshall Forrest because of the factors set forth above and because of the fact that the employees at Kimco shared a common eating area and a high number of employees had positive Mantoux test results. The high number of employees showing positive test results, without the apparent distinction between the races, indicated a strong possibility that tuberculosis was being transmitted within the plant.

In answer to interrogatory 8, Dr. Rausa stated:

Because of evidence that there was transmission of tuberculosis within the factory where Mr. Hudson worked, the risks associated with the type of work and factory area, and the absence of contraindications in Mr. Hudson's previous medical history, it was appropriate that he be offered INH. During the time Mr. Hudson was under the management of the Montgomery County Health Department, he developed no symptoms that would have justified discontinuing this medication. His medical records show that his urine was amber but not abnormal in appearance, both at his last visit to the health department and at his subsequent visit to Dr. Middleton.

Accordingly on October 24, 1980, the medication INH was prescribed for Earl Hudson by Dr. Rausa which was dispensed on October 31, 1980, by a pharmacist at the Mississippi State Department of Health. On December 1, 1980, and January 2, 1981, additional INH was dispensed to Earl Hudson. In answer to a request for admissions, Rausa admitted that severe and some times fatal hepatitis is associated with INH therapy; that the risk of developing INH induced hepatitis is age related; that approximately 2.3% of persons in the 50 to 64 age category taking INH therapy developed progressive liver damage; that renal damage is not a toxic effect of INH therapy; that low urine output is not one of the signs that INH is having a toxic effect on the individual taking the medication; and that his discontinuing INH is not indicated for all symptoms or side effects. Earl Hudson died February 23, 1981, and the death certificate shows the immediate cause of death was a massive hemorrhage as a consequence of hepatic failure. Another significant condition listed was renal failure. In answer to request for admissions, Emma Hudson stated that Earl Hudson was tested on October 10, 1980 at the Kimco Plant and his PPD skin test showed a positive reaction.

The Mississippi State Board of Health issued in July 1974, a publication entitled Policies, Treatment and Supervision in the Tuberculosis Control Program. It is stated in this publication that the ultimate goal of tuberculosis programs is the elimination of tuberculosis as a public health problem and that the control of tuberculosis depends primarily on locating the tuberculous, their families, their associates, and those infected with tubercle bacilli. General guides and concepts are then given which influence public health nursing and tuberculosis control. Dr. Rausa was the local health officer of Montgomery County and as such was charged with certain duties with respect to communicable...

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