Kassen v. Hatley
| Citation | 887 S.W.2d 4 |
| Decision Date | 22 December 1994 |
| Docket Number | No. D-4248,D-4248 |
| Parties | 38 Tex. Sup. Ct. J. 73 Lisa KASSEN, R.N., Dallas County Hospital District d/b/a Parkland Memorial Hospital, Gurjeet S. Kalra, M.D., and The University of Texas Southwestern Medical Center at Dallas, Petitioners, v. Judy HATLEY and William Johnson, Respondents. |
| Court | Supreme Court of Texas |
Richard Bernays, Thomas L. Cox, Dallas, Donna M. Aversano, James Ldlum, Jr., Anthony G. Brocato, Jr., Dan Morales, Austin, for petitioners.
John Horany, James E. Girards, David R. Weiner, Dallas, for respondents.
GONZALEZ, Justice, delivered the opinion of the Court, in which HIGHTOWER, HECHT, CORNYN and SPECTOR, Justices, join.
In this case we decide whether a doctor and nurse employed by a governmental entity were entitled to the defense of official immunity when sued individually for medical malpractice. We conclude that official immunity is a question of fact that was not conclusively established. We thus affirm that part of the judgment of the court of appeals which reversed summary judgment for the doctor and nurse, 859 S.W.2d 367, and remand their causes to the trial court for further proceedings consistent with this opinion. We also conclude that the plaintiffs failed to allege an injury arising from a condition or use of tangible personal property. We therefore reverse the judgment of the court of appeals as to the Dallas County Hospital District d/b/a Parkland Memorial Hospital (Parkland) and the University of Texas Southwestern Medical Center at Dallas (Southwestern), and affirm the judgment of the trial court as to these defendants.
This wrongful death action arose from the suicide of Ms. Pennie Johnson on February 14, 1988. Johnson, then 24, had been a chronic mental health patient for nearly ten years. Johnson's condition, diagnosed as a borderline antisocial personality disorder, was manifested by depression, pseudo seizures, attacks on others, temper tantrums, manipulative behavior, drug and alcohol abuse, and suicidal threats and gestures. Although she had spent much of her teenage and adult life in institutions, her doctors had decided that long-term institutionalization was not therapeutic. They were treating her as an outpatient at the forensic unit of the Dallas County Mental Health and Mental Retardation System (Dallas County MHMR).
Shortly before midnight on February 13, 1988, a police officer discovered Johnson walking along a Dallas expressway. Because she was threatening to harm herself, the officer took her to the psychiatric emergency room at Parkland. This was her second visit to Parkland in two days. Complaining of depression, Johnson informed a Parkland nurse that she had taken the medication in her possession seven times that day, exceeding the prescribed dosage. After medical staff witnessed her taking additional pills, they confiscated Johnson's medication and placed it in the nurses' station.
Dr. Gurjeet S. Kalra examined Johnson. At the time, he was a third-year resident in psychiatry at Southwestern, serving a rotation in Parkland's psychiatric ward. Parkland had a "difficult patient file" on Johnson because she had been a patient at Parkland and several other institutions before. This file recommended that staff refer Johnson to Dallas County MHMR rather than admit her when she presented herself to an institution, unless she had significantly different symptoms from those in the past. Kalra found Johnson's conduct consistent with her past behavior, and did not admit her for inpatient care.
Johnson became angry. She demanded the return of her medication and threatened to throw herself in front of a car if she did not receive the pills. Kalra and Lisa Kassen, R.N., the charge nurse in the Parkland emergency room, jointly decided not to return the medicine even though doctors not associated with Parkland or Southwestern had prescribed it. Kassen then told Johnson that she would return the pills if Johnson accepted a taxi ride home at Parkland's expense. Johnson refused, stating that she did not want to go home. Someone called a security officer to escort her out, but Johnson voluntarily left the hospital alone without her medication. Johnson committed suicide a short time later by stepping into freeway traffic.
Johnson's parents, Judy Hatley and William Johnson, filed this wrongful death action against Kalra, Kassen, Parkland, and Southwestern, alleging that the defendants negligently caused their daughter's death. 1 Each of these defendants moved for summary judgment. Parkland and Southwestern argued that the plaintiffs failed to allege a use of tangible personal property as required under the Texas Tort Claims Act. Kalra relied on the defense of official immunity. Kassen argued she was not liable because Section 93.001(a)(2) of the Texas Civil Practice and Remedies Code provides an affirmative defense in cases of suicide.
The trial court granted summary judgment for Southwestern and Kalra without specifying the grounds. The case proceeded to trial against Parkland and Kassen. After the plaintiffs presented their case in chief, Parkland and Kassen moved for directed verdicts. Parkland again relied on sovereign immunity. Kassen for the first time asserted official immunity as a defense. The trial court granted the directed verdicts and rendered judgment that the plaintiffs take nothing.
The court of appeals reversed. It held: (1) Kalra and Kassen were not entitled to official immunity because they did not exercise "governmental" discretion, and (2) the plaintiffs had stated a claim under the Texas Tort Claims Act against Parkland and Southwestern by alleging misuse of Johnson's medical records and her medication. The court also stated that summary judgment based on the affirmative defense of suicide, TEX.CIV.PRAC. & REM.CODE § 93.001(a)(2), would have been improper because the evidence did not establish that Johnson's conduct, apart from the conduct of Kalra or Kassen, was the sole cause of her death. All defendants filed applications for writ of error with this Court.
We first determine whether Kalra and Kassen were entitled to the defense of official immunity. This common law defense protects government officers from personal liability in performing discretionary duties in good faith within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653-54 (Tex.1994) (citing Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425, 427 (1954)); Carpenter v. Barner, 797 S.W.2d 99, 101 (Tex.App.--Waco 1990, writ denied); Russell v. Texas Dep't of Human Resources, 746 S.W.2d 510, 513 (Tex.App.--Texarkana 1988, writ denied); see Baker v. Story, 621 S.W.2d 639, 644 (Tex.Civ.App.--San Antonio 1981, writ ref'd n.r.e.). We distinguish official immunity, which protects individual officials from liability, from sovereign immunity, which protects governmental entities from liability. See Baker, 621 S.W.2d at 643. If a plaintiff has a right of action against the government due to the state's waiver of sovereign immunity, this right is not affected by whether a government employee has official immunity. See TEX.CIV.PRAC. & REM.CODE §§ 104.008, 108.002, 108.003; Washington v. City of Houston, 874 S.W.2d 791, 796 (Tex.App.--Texarkana 1994, no writ).
The purpose of official immunity is to insulate the functioning of government from the harassment of litigation, not to protect erring officials. Westfall v. Erwin, 484 U.S. 292, 295, 108 S.Ct. 580, 583, 98 L.Ed.2d 619 (1988). The public would suffer if government officers, who must exercise judgment and discretion in their jobs, were subject to civil lawsuits that second-guessed their decisions. See RESTATEMENT (SECOND) OF TORTS § 895D cmt. b; CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE § 10.71 (1985). Official immunity increases the efficiency of employees because they need not spend time defending frivolous charges. Id. As the United States Supreme Court has noted, official immunity is important:
[O]fficials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties--suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.
Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434 (1959).
On the ground of official immunity, Kalra prevailed on his motion for summary judgment and Kassen prevailed on her motion for directed verdict. For the summary judgment to have been proper, Kalra had to establish conclusively each element of his defense. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). 2 Likewise Kassen had to establish conclusively her official immunity defense. If sufficient evidence was presented at trial, such that "reasonable minds could differ about the fact determination to be made by the jury," then Kalra and Kassen were not entitled to judgment as a matter of law. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994) (quoting William Powers, Jr. and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEX.L.REV. 515, 523 (1991)).
The elements of the defense of official immunity are (1) the performance of a discretionary function (2) in good faith (3) within the scope of the employee's authority. City of Lancaster, 883 S.W.2d at 653. The second and third elements of this defense were undisputed; Kalra and Kassen conclusively established them. 3 The plaintiffs only contend that one issue remains: were Kalra and Kassen performing "discretionary" functions that would entitle them to official immunity?
The primary issue before us is whether Texas distinguishes medical from governmental discretion in applying the doctrine of official immunity to...
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