Morrison v. Washington County, Ala.

Decision Date17 March 1983
Docket NumberNo. 81-7778,81-7778
Citation700 F.2d 678
PartiesBertha MORRISON, Plaintiff-Appellant, v. WASHINGTON COUNTY, ALABAMA, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Blacksher, Menefee & Stein, Larry T. Menefee, Mobile, Ala., for plaintiff-appellant.

Carroll H. Sullivan, James J. Duffy, Jr., Mobile, Ala., for Dr. Paul Petcher.

Frank G. Taylor, Mobile, Ala., for Wheat.

Peter V. Sintz, Robert C. Campbell, III, Mobile, Ala., for Washington County, Ala., Turner, Sullivan, Carpenter, Dees, Armstrong.

Mack B. Binion, Mobile, Ala., for Washington Co. Hosp.

Appeal from the United States District Court for the Southern District of Alabama.

Before GODBOLD, Chief Judge, FAY and SMITH *, Circuit Judges.

FAY, Circuit Judge:

Bertha Morrison, administratrix of the estate of Sylvester Morrison, appeals the district court's judgments, summary and final, in favor of the defendants, in an action filed pursuant to 42 U.S.C. Section 1983 against the Washington County (Alabama) Hospital Association, Inc., Dr. Paul Petcher, Washington County, five commissioners of Washington County and William Wheat, Sheriff of Washington County. After careful consideration of the district court's judgments, we reverse and remand, 521 F.Supp. 947.

FACTUAL BACKGROUND

On November 7, 1978, Sylvester Morrison sought treatment for his diabetic condition Dr. Petcher determined that Morrison should not remain at the hospital, and directed a hospital staff member to call the sheriff's office. The staff member spoke to Jesse Touchstone, the jailer on duty, and requested that an officer be sent to the hospital. Touchstone radioed a request and Bickerstaff, a Chatom city policeman responded to the call by going to the hospital.

                at Washington County Hospital, in Chatom, Alabama, approximately thirty miles from his home.  Morrison had been a patient at this hospital, under the care of Dr. Paul Petcher and other doctors, on numerous occasions during the preceding years, for diabetes and other conditions.  During this visit, Morrison was being treated primarily for diabetes, when he was diagnosed as suffering from delirium tremens, a severe form of alcohol withdrawal. 1   His condition worsened and Morrison became irrational, agitated, restless and was hallucinating
                

When he realized the call was concerning a hospital patient, Bickerstaff telephoned Sheriff Wheat at home. Wheat told Bickerstaff that it was all right to proceed if Dr. Petcher approved. A sedated Morrison was taken from his hospital room in a wheel chair to the police car. Dr. Petcher stated that he told the officer to check on Morrison every hour, did not direct the officer to charge Morrison with a criminal offense and did not describe Morrison as drunk.

Morrison was taken to the Washington County jail, placed in a one person cell, and charged with public drunkenness. Touchstone, the jailer, testified in deposition that he had no first aid or medical training, that he was never told anything about giving Morrison any medicine, that he thought Morrison was drunk, and that he wasn't given any instructions to call a doctor or nurse or any other special instructions concerning Morrison. Touchstone also stated that Morrison was hollering and beating his fists and head against the walls. Around four a.m., Touchstone looked in the cell with his flashlight and could not see Morrison moving or breathing. He then telephoned Sheriff Wheat to come to the jail.

The autopsy report prepared by the Alabama Department of Forensic Sciences and submitted to the District Attorney stated that the cause of Morrison's death was "acute alcohol abstinence syndrome." 2

One year after Sylvester Morrison's death, Bertha Morrison, as administratrix of his estate, filed an action in federal district court against the hospital, Dr. Petcher, the county, the county commissioners and Sheriff Wheat. The complaint alleged claims pursuant to 42 U.S.C. Sections 1983, 1985(3), 1986 3 and 1988 as well as a pendent claim for wrongful death under state law.

The procedural history of this case in the district court is confusing at best. The district court entered summary judgments,

dismissed claims, vacated summary judgments, granted a directed verdict and entered one judgment on the merits. Because each of the defendants below are in a different procedural posture on this appeal, we shall consider each defendant individually.

THE HOSPITAL

The district court entered summary judgment in favor of the hospital on the civil rights claims (R. at 234) and thereafter entered summary judgment in the hospital's favor on the pendent wrongful death claim under Alabama law (R. at 484). Summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all evidence is viewed in the light most favorable to the non-moving party. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Federal Rules of Civil Procedure, Rule 56. The district court's order granting summary judgment is not a discretionary decision and should thus be independently reviewed by the appellate court. Federal Deposit Insurance Corporation v. Dye, 642 F.2d 837, 841 (5th Cir.1981). Conclusions of law rendered by means of summary judgment are subject to the same standard of appellate review as any question of law raised upon appeal. Id.

In considering the civil rights claim under 42 U.S.C. Section 1983, the district court correctly noted that there are two elements essential to such a claim: 1) that the conduct complained of was committed by a person acting under color of state law; and 2) that the conduct deprived a person of rights secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1978). The district court found that although the hospital acts under color of state law, "in this case the hospital took no action." (R. at 246). The district court reasoned that Dr. Petcher was the actor who discharged Morrison and that the hospital did not set a custom, policy or practice which resulted in the deprivation of Morrison's constitutional rights. Therefore, the district court held that under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the hospital could not be liable under the respondeat superior theory and since "nothing which the hospital did" deprived Morrison of any rights (R. at 247), the hospital was not liable.

A hospital is in a unique position. Many of its services are performed by salaried employees. Many others are performed by physicians. These physicians may or may not be independent contractors, residents, interns, etc. A list of essential functions of a hospital would have to include policies and procedures for the admission and discharge of its patients. Hospitals are not hotels. Someone must necessarily make a decision in accord with an established standard or criteria. In this instance the hospital argues that it relied solely upon Dr. Petcher, as an independent treating physician of the deceased, in discharging Morrison.

From the facts before the district court we cannot agree that there is no issue as to any material fact and that the hospital is entitled to judgment as a matter of law. Morrison's discharge was not purely a medical judgment made by a private party according to professional standards. See Blum v. Yaretsky, --- U.S. ----, ----, 102 S.Ct. 2777, 2787, 73 L.Ed.2d 534, 549 (1982). Rather, the decision to discharge appears to have been based on administrative considerations (e.g. lack of facilities, inadequate supervision) for which the hospital cannot disavow responsibility. Based on these considerations, the hospital, acting in concert with Dr. Petcher, arranged for Morrison to be placed in the custody of the county police. Hospital staff telephoned the sheriff's office and participated in the discharge. While the hospital staff may have performed under the direction of Dr. Petcher, under the circumstances, such is not sufficient to exonerate the hospital as a matter of law.

We do not here decide that the hospital's conduct caused the deprivation of Morrison's rights, for that is the task for the trier After dismissal and reinstatement of the plaintiff's pendent state law claim for wrongful death, and its denial of the hospital's motion for summary judgment 4 the district court again considered the claim on the morning of trial. The court asked plaintiff's attorney if he would waive the notice requirements of Federal Rules of Civil Procedure, Rule 56, and pointed out that "as the Court saw the case several defendants would be entitled to a directed verdict." (R. at 484). The plaintiff waived the notice requirement and the district court entered summary judgment on the pendent state law claim for wrongful death, Ala.Code Section 6-5-410 (1975), in favor of the hospital. The district court reasoned that plaintiff's allegations concerning the hospital staff's review of Dr. Petcher's decision were insufficient because Alabama does not "impose a duty of care upon a nursing staff to independently review decisions made by the attending physician." (R. at 487). The district court therefore concluded that "without a duty of care which runs from the defendant hospital to the decedent there can be no liability for wrongful death." (R. at 487).

of fact after considering both the general relationship between Dr. Petcher and the hospital and the specific actions of the parties in the rather unique situation of the police removing a patient from the hospital. This is not a "malpractice" case as the hospital appellee contends, for it involves the practice and procedures of the hospital's treatment of "unruly" patients and an incident where hospital staff telephoned the sheriff to bodily remove a patient from the hospital resulting in the patient's death in a...

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