Northwest Georgia Regional Hosp. v. Wilkins

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY; POPE, P.J., and RUFFIN
• Citation: Northwest Georgia Regional Hosp. v. Wilkins, 469 S.E.2d 786, 220 Ga.App. 534 (Ga. App. 1996)
• Decision Date: 08 March 1996
• Docket Number: No. A95A2253,A95A2253
• Parties: NORTHWEST GEORGIA REGIONAL HOSPITAL et al. v. WILKINS.

Page 786

469 S.E.2d 786

220 Ga.App. 534

NORTHWEST GEORGIA REGIONAL HOSPITAL et al. v. WILKINS.

No. A95A2253.

Court of Appeals of Georgia.

March 8, 1996.

Certiorari Denied May 17, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Patricia B. Downing, Senior Assistant Attorneys General, Atlanta, Womack & Rhyne, Ronald R. Womack, LaFayette, for appellants.

Coppedge, Goddard & Leman, Joseph T. Leman, Dalton, Ralston & Painter, David E. Ralston, Blue Ridge, for appellee.

BEASLEY, Chief Judge.

Defendants Georgia Department of Human Resources ("DHR") and Northwest Georgia Regional Hospital ("NGRH"), a psychiatric facility operated by DHR, appeal an order denying their motion for summary judgment against the Administrator of the Estate of Willie Lloyd Wilkins on the grounds that they are immune under the doctrine of sovereign immunity, Ga. Const.1983, Art. I, Sec. II, Para. IX and OCGA § 50-21-20 et seq., and that they are not liable for the actions of their employees who are themselves immune under OCGA § 37-3-4. Because our ruling on these grounds is dispositive, we do not address others.

The evidence is viewed in favor of the non-movant Wilkins and he is given the benefit of every doubt and every reasonable inference in his favor on the motion for summary judgment. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). The record reveals that Willie Lloyd Wilkins had spent much of his life in professional care because he was mentally handicapped. He was admitted to NGRH for the fourth time on July 30, 1990, and was assigned to a treatment team chaired by a psychiatrist. Besides being diagnosed with organic mental disorder, he also had mental retardation, epilepsy, cardiovascular disease, thyroid problems, testicular atrophy, hiatal hernia, and chronic bronchitis. He was agitated on occasion and combative and would steal food, drink, and tobacco from other patients.

After determining in April 1992 that Wilkins' condition had improved and that he had received maximum benefit from his stay at NGRH, the treatment team considered Wilkins to be a suitable candidate for discharge from NGRH and for admission into a personal care home. He was discharged on April 16 with a month's supply of eight medications, including Digoxin for his heart condition. He was transported to Bobbie Moore Community Care Motel, where he stayed until his death on July 31, 1992.

Bobbie Moore, another defendant in this action, maintained two facilities in Fannin County. An employee from NGRH inspected one of the facilities to determine if it would be suitable for Wilkins and was shown a permit to maintain and operate a family personal care home. However, Wilkins was placed in Bobbie Moore's second facility. Although this facility had not been issued an operating permit, it was being operated with the knowledge and permission of the Acting Director of the DHR's Personal Care Home Program, Environmental Health Section. According to him, "[t]his facility was offering all the services that meet the definition of a personal care home" under OCGA § 31-7-12. There were some complaints made by families of residents of the second facility, but DHR was not made aware of any problems until after Wilkins' death.

Wilkins' brother, who was the administrator of the estate (whom we also refer to as "Wilkins") brought suit for wrongful death under 42 USC § 1395dd, 42 USC § 1983, the Georgia Tort Claims Act, and for medical malpractice. The court granted summary judgment to defendants on the two federal claims, which are no longer at issue.

1. Any discussion of sovereign immunity must begin with the relevant provisions of the 1983 Georgia Constitution, as amended in 1991. Article I, Section II, Paragraph IX(e) provides, "Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Paragraph IX(a) explains that "[t]he General Assembly may waive the state's sovereign immunity from suit by enacting a State Tort Claims Act." The legislature did enact such a law, which is codified at OCGA § 50-21-20, et seq.

OCGA § 50-21-23 provides, "(a) The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state's sovereign immunity is waived subject to all exceptions and limitations set forth in this article.... (b) The state waives its sovereign immunity only to the extent and in the manner provided in this article."

One of these exceptions is found in OCGA § 50-21-24(1): "The state shall have no liability for losses resulting from ... [a]n act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance, whether or not such statute, regulation, rule, or ordinance is valid." The trial court determined that whether or not employees of NGRH had exercised due care in discharging Wilkins was a jury question and thus denied defendants' motion for summary judgment on the issue of sovereign immunity.

Subsection (2) of OCGA § 50-21-24 insulates the state from liability for "the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused." OCGA § 50-21-22 prescribes the definition of "discretionary function or duty" as "a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors."

A sizable body of case law developed prior to the enactment of the 1991 amendment contrasting the "discretionary" acts of a state employee, for which official immunity applied to protect the employee from personal liability, and "ministerial" acts of an employee, for which the employee was potentially personally liable. ¹ The cases held that " '[a] discretionary act ... calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.' [Cit.]" Joyce v. Van Arsdale, 196 Ga.App. 95, 96, 395 S.E.2d 275 (1990). "[T]he intent of the [1991 constitutional] amendment and the Tort Claims Act enacted under its authority is to redraw and redefine the terms of the State's waiver of sovereign immunity." Gilbert v. Richardson, 264 Ga. 744, 748, 452 S.E.2d 476 (1994). Although these cases may provide some guidance, the statutory definition of "discretionary" is narrower than that of the earlier case law, and each alleged tortious act of a state employee must be analyzed in accordance with it. See Hemak v. Houston Cnty. Sch. Dist., 220 Ga.App. 110, 469 S.E.2d 679 (1996); but see Christensen v. State, 219 Ga.App. 10, 12, 464 S.E.2d 14 (1995).

Under Paragraph IX(d) of the 1991 constitutional amendment, "all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual...