Lee v. Department of Health and Rehabilitative Services

• Decision Date: 19 June 1997
• Docket Number: No. 87071,87071
• Citation: 698 So.2d 1194
• Parties: 22 Fla. L. Weekly S354 Levada LEE, etc., Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
• Court: Florida Supreme Court

Page 1194

698 So.2d 1194

22 Fla. L. Weekly S354

Levada LEE, etc., Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.

No. 87071.

Supreme Court of Florida.

June 19, 1997.

Rehearing Denied Sept. 10, 1997.

Dean R. LeBoeuf, Ronald W. Brooks and Rhonda S. Bennett of Brooks, LeBoeuf and Bennett, P.A., Tallahassee, for Petitioner.

Robert A. Butterworth, Attorney General and Laura Rush, Assistant Attorney General; and Edwin R. Hudson of Henry, Buchanan, Hudson, Suber & Williams, P.A., Tallahassee, for Respondent.

Loren E. Levy of the Levy Law Firm, Tallahassee, for The Academy of Florida Trial Lawyers and The Association for Retarded Citizens of Florida, Amici Curiae.

Ellen M. Saideman, Fort Lauderdale, for Advocacy Center for Persons with Disabilities, Inc., Amicus Curiae.

OVERTON, Justice.

We have for review State Department of Health & Rehabilitative Services v. Lee, 665 So.2d 304 (Fla. 1st DCA 1995), in which the district court reversed a judgment rendered against the Department of Health and Rehabilitative Services (HRS) for the alleged negligent care of a mentally retarded woman who became pregnant while in the custody of HRS. The district court held that the doctrine of sovereign immunity barred recovery in this action, finding that the allegations actually challenged the supervision policies dictated by the legislature's "normalization principle" for mentally retarded persons rather than any specific operational negligence. In so holding, the district court certified the following question to be of great public importance:

WHERE A SEVERELY RETARDED RESIDENT OF AN HRS FACILITY BECOMES PREGNANT WHILE IN HRS' CARE, BUT NEITHER THE SPECIFIC CIRCUMSTANCES OF HER IMPREGNATION NOR ANY SPECIFIC ACT OF HRS' NEGLIGENCE IS ALLEGED OR ESTABLISHED AT TRIAL, CAN HRS BE HELD LIABLE IN TORT FOR ALLEGED NEGLIGENT SUPERVISION OF THE RESIDENT, GIVEN THE "NORMALIZATION PRINCIPLE," SECTION[S] 393.13-.14 FLORIDA STATUTES ("THE BILL OF RIGHTS OF PERSONS WHO ARE DEVELOPMENTALLY DISABLED")?

Id. at 307. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We decline to answer the certified question as worded, finding that it does not articulate fully the legal issues involved in this case. We fully agree with the district court's conclusion that the trial court's judgment was founded in significant part on asserted negligence involving the function of interpreting and implementing the rules governing the number and assignment of employees to supervise and care for the mentally disabled, which is a discretionary policy-making function for which HRS cannot be held liable because those types of decisions are sovereignly immune. Nevertheless, because the record also reflects that HRS employees may have negligently failed to properly carry out their operational duties and because operational negligence is actionable, we conclude that the entire action is not barred under the doctrine of sovereign immunity. We further conclude that the investigatory report of an HRS employee, which substantially supports the claim of operational negligence, as well as expert testimony involving the victim's post-traumatic stress disorder were improperly introduced and relied on in the trial of this case. As a result, we approve the district court's reversal of the trial court's judgment, but we remand this cause for a new trial.

This case concerns extremely difficult policy issues involving the rights of mentally retarded patients to live their lives as normally as possible as opposed to the need for the implementation of restrictions and supervision by HRS to properly care for those persons. In reaching our decision today, we emphasize that the care of the mentally disabled is a critical function that, to a large degree, involves a significant amount of discretion on the part of the legislature and HRS to balance the rights of the patients versus their need for care.

The specific facts of this case are as follows. In March 1987, D.L., a severely retarded woman, became pregnant while she was a resident of Sunland-Marianna ("Sunland"), an HRS intermediate care facility for the mentally retarded. Subsequently, D.L. gave birth to a normal child. After D.L. became pregnant, Levada Lee, D.L.'s mother and legal guardian, sued HRS for the negligent supervision of D.L. It was stipulated that D.L. was under the supervision of HRS at the time of her impregnation.

Evidence of negligent supervision was presented by the testimony of Gene Peacock, an employee of HRS who was assigned to investigate the circumstances of how D.L. became pregnant. In the course of his investigation, Peacock prepared a written report that contained statements of witnesses as well as his opinions and conclusions regarding this case. During his testimony at trial, Peacock read portions of the report to the jury. Specifically, he noted that the incident was reported to him on July 28, 1987; that he interviewed witnesses as part of the investigation including the victim, other patients, and employees of the facility; that the victim told him that several other patients "played nasty" with her in the bathroom and gym; that one patient admitted, then denied, having sex with D.L.; that another patient was overhead bragging that he "got it" with D.L.; and that an employee told him she witnessed a patient "fingering" D.L., but that no report was ever filed by that employee about the incident. The report also indicated that on March 18, 1987, the patients were left at a dance at the gym from 6:30 to 8:45 p.m. without proper supervision and that, in Peacock's opinion, D.L. lacked the capacity for knowing consent. Based on his investigation, Peacock stated in his report that neglect was indicated.

Other evidence indicated that D.L. was impregnated within four days of March 21, which implied that she became pregnant at the dance. On cross-examination, Peacock testified that he was unfamiliar with chapter 393, Florida Statutes (1985)(the normalization statute, which sets forth a patient's bill of rights), and that he had been unable to identify where the abuse occurred, when it occurred, or who committed the abuse. He further stated that the sexual contact "was more than likely by mutual consent."

The testimony of the bureau chief with the Attorney General's Office in the Division of Victim Services and Criminal Justice Programs was also presented. Over defense objection, she testified that, in her opinion, D.L. was forced to have intercourse against her will by a resident at Sunland and that D.L. suffers from post-traumatic stress disorder as a result of that abuse.

The director of the facility testified concerning the number of employees available to supervise the patients. He acknowledged that state administrative rules required a ratio of one employee for every two patients for those patients in D.L.'s condition; however, he stated that this dealt with total staff ratio rather than just staff on duty and that the facility has complied with this ratio. He further stated that the federal-state survey team had approved the facility's practice of providing a ratio of one employee for every eight patients per unit during the day and a ratio of one employee for every sixteen patients per unit at night. He also stated that the statutory normalization principle required that the facility residents have as much freedom as possible and that the facility did not have the ability to provide one-on-one supervision. The director acknowledged that an abuse report should have been filed if an employee had in fact witnessed a sexual incident such as one patient "fingering" another.

Other witnesses testified regarding staff supervision policies, available funds for this facility, and D.L.'s behavior before, during, and after her pregnancy. Counsel for the plaintiffs specifically emphasized facts regarding insufficient staffing and the expenditure of funds in his arguments to the jury, stating:

Let's review those figures, sir. "How much money did you have in 1987 to care for patients like [D.L.]?" "Well, we go by fiscal year, you see. For the fiscal year '86 and '87, we had $40,582 per patient. In 1987 and 1988, we had $44,412 per patient, that we spent." "Well, gee what was your overall budget?" In '86 and '87, they had $17,971,000. Even though they spent all this money per patient, they only spent $17,100,000. They had over $800,000 left [over]. So they certainly had enough money to provide[D.L.] with more protection.

What about the next year, maybe they had a budget shortfall, no, you see, they got $20,453 [sic] that year. They only spent $18,786,000 of it. They had approximately $1.5 million left over that year. Why couldn't they have used that to provide the level of supervision that [D.L.] needed, that [D.L.] was entitled to[?]

The jury found in favor of D.L., and, as indicated previously, on appeal, the district court reversed the jury verdict, finding that D.L. was actually challenging the supervision policies dictated by the legislature's "normalization principle" for mentally retarded persons rather than any specific operational negligence.

Under section 768.28, Florida Statutes (1995), discretionary policy-making or planning activities of governmental entities remain immune from tort liability. However, immunity from tort liability is waived for negligent activities that are operational and for which a common law duty of care exists. Department of Health & Rehabilitative Servs. v. B.J.M., 656 So.2d 906 (Fla.1995); Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). In this instance, the claimant has asserted that HRS breached its duty of care by failing to use reasonable care in the oversight and supervision of D.L. Essentially, she has attempted to establish this breach of duty in two ways. First, she argues that HRS was negligent in establishing the level...