Pangburn v. Saad

• Citation: 73 N.C.App. 336,326 S.E.2d 365
• Decision Date: 05 March 1985
• Docket Number: No. 844SC266,844SC266
• Parties: Sheri Elizabeth PANGBURN v. Dr. M. SAAD and Dr. E.V. Maynard.
• Court: North Carolina Court of Appeals

Page 365

326 S.E.2d 365

73 N.C.App. 336

Sheri Elizabeth PANGBURN v. Dr. M. SAAD and Dr. E.V. Maynard.

No. 844SC266.

Court of Appeals of North Carolina.

March 5, 1985.

Ellis, Hooper, Warlick, Waters & Morgan by William J. Morgan, Jacksonville, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James D. Blount, Jr., and Jodee Sparkman King, Raleigh, for defendant-appellee Saad.

BECTON, Judge.

I

Plaintiff brought this action for compensatory and punitive damages for personal injuries suffered as a result of the wrongful release of her brother, Daniel Olin Pangburn, from Cherry Hospital in Goldsboro North Carolina, by defendant, Dr. M. Saad, a staff psychiatrist at the hospital. Plaintiff alleges that her brother was discharged by defendant and sent home on 26 March 1982, and that less than 16 hours later, he stabbed her approximately 20 times with a kitchen knife, inflicting "serious, disfiguring and life-threatening wounds." Dr. Saad made a Rule 12(b)(6) motion to dismiss for failure to state a cause of action, which motion was granted by the trial court. Plaintiff appeals.

Plaintiff asks this Court to recognize a cause of action for injuries resulting from the wrongful release of a mental patient. She also asserts that N.C.Gen.Stat. Sec. 122-24 (1981), which allegedly confers immunity on Dr. Saad, as a State hospital medical staff member, for his decision to release Daniel Pangburn, is unconstitutional and thus presents no barrier to recognition of a cause of action. Defendant argues that plaintiff's action is barred because this is a medical malpractice action and there is no privity between plaintiff and Dr. Saad. Further, defendant contends that even if this Court recognizes a cause of action for wrongful release of a mental patient, G.S. Sec. 122-24 (1981) provides defendant with absolute immunity from personal liability.

We hold that plaintiff has stated a claim for relief against Dr. Saad, based on his wrongful release of her brother, and we further hold that G.S. Sec. 122-24 (1981) affords only a qualified immunity, immunizing physicians only from liability for their ordinary negligent acts but not from liability for their "wilful, wanton or recklessly" negligent acts or their intentional acts. As plaintiff has sufficiently alleged a cause of action against Dr. Saad for his decision to release Daniel Pangburn, the order of the trial court must be reversed.

II

The initial barrier posed by defendant Saad to recognition of plaintiff's cause of action is that there is no physician-patient privity between plaintiff and Dr. Saad. Defendant contends that such privity is an absolute prerequisite to a medical malpractice action. However, we are not faced with a medical malpractice action. The Supreme Court of Georgia rejected this exact argument on a wrongful death claim brought against the State: "[T]his is not a malpractice case; it is an ordinary negligence case in which privity has never been an essential element." Bradley Center, Inc. v. Wessner, 250 Ga. 199, 203, 296 S.E.2d 693, 696-7 (1982). That court distinguished a negligent release situation from so-called "classic medical malpractice actions," noting that the legal duty involved with the former arose out of the general duty one owes to all the world not to subject it to an unreasonable risk of harm. The Georgia Court quoted with approval the lower court's definition of the legal duty involved in negligent release cases:

'[W]here the course of treatment of a mental patient involves an exercise of "control" over [the patient] by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.'

Id. at 201, 296 S.E.2d at 695-6 (quoting Bradley Center, Inc. v. Wessner, 161 Ga.App. 576, 581, 287 S.E.2d 716, 721 (1982)).

Addressing a factually comparable claim, the Fourth Circuit has said: "Apparently, no Virginia case deals with a claim similar to [plaintiff's], so we must resort to the general principles of the Virginia law of torts." Semler v. Psychiatric Institute, 538 F.2d 121, 124 (4th Cir.), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 90 (1976). We likewise apply North Carolina tort principles, and find that plaintiff states a claim for actionable negligence, namely, that defendant breached a duty that he owed to plaintiff, and that she was injured as a proximate cause of that breach, it being reasonably foreseeable that her injuries would result from the breach. See Ashe v. Acme Builders, Inc., 267 N.C. 384 148 S.E.2d 244 (1966) (for elements of negligence); Bradley Center, Inc. v. Wessner.

III

As we find that a cause of action exists, we must next examine the impact of G.S. Sec. 122-24 (1981), which provides:

No administrator, chief of medical services, or any staff member under the supervision and direction of the administrator or chief of medical services of any State hospital shall be personally liable for any act or thing done under or in pursuance of any of the provisions of this Chapter.

Dr. Saad stated in his affidavit that he was a staff psychiatrist under the supervision and direction of the Administrator or Chief of Medical Services of Cherry Hospital. The release of Daniel Pangburn, an involuntarily committed patient, was apparently accomplished under G.S. Sec. 122-58.13 (1981). Clearly, then, the provisions of G.S. Sec. 122-24 (1981) seem to immunize defendant from liability, and the only reported cases found construing G.S. Sec. 122-24 (1981) and its predecessor support this conclusion.

In Bollinger v. Rader, 151 N.C. 383, 66 S.E. 314 (1909), plaintiff sued the superintendent and directors of a state mental hospital for damages caused by the negligent release of a violent patient who murdered plaintiff's intestate six months after he was discharged. The Supreme Court, relying on the predecessor to G.S. Sec. 122-24, held that plaintiff had not stated a cause of action. In Susan B. v. Planavsky, 60 N.C.App. 77, 298 S.E.2d 397 (1982), disc. rev. denied, 307 N.C. 702, 301 S.E.2d 388 (1983), this Court held that money damages for personal liability could not be recovered in a suit brought against a staff doctor at a state mental hospital for infringement of the plaintiff-patient's right to seek a private mental health evaluation. Neither Ballinger nor Susan B. contains a constitutional challenge to the statute.

IV

A.

We next address plaintiff's constitutional challenge. Plaintiff attacks the constitutionality of G.S. Sec. 122-24 (1981) on two separate grounds: (a) that it violates the equal protection clause of Art. I, Sec. 19 of the North Carolina Constitution, and (b) that it violates the "open courts" provision found in Art. I, Sec. 18 of the North Carolina Constitution.

The statute does not violate our equal protection clause. The classification drawn in G.S. Sec. 122-24 (1981) distinguishes staff members of a State mental hospital from staff members of non-included hospitals, or possibly from all other State employees. As no suspect class or fundamental right is involved, the lower tier of equal protection analysis, the "rational basis" test, is employed. This test requires that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate government interest. Abbott v. Town of Highlands, 52 N.C.App. 69, 277 S.E.2d 820, appeal dismissed and disc. rev. denied, 303 N.C. 710, 283 S.E.2d 136 (1981); see Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983) (legislative classifications presumed valid). Although no North Carolina case discusses the policy considerations undergirding the statute, it is self-evident that psychiatrists are exposed to unique risks when they decide to release a patient. Also, absent immunity, psychiatrists would be more reluctant to accept lower-paying state jobs, and disinclined to release patients once they accepted such jobs. In our opinion, these considerations easily justify the statutory classification.

B.

Article I, Sec. 18 of our Constitution provides, inter alia, that "every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law...." Plaintiff argues that if she is barred from bringing suit against Dr. Saad, she is denied a remedy for her injury. What plaintiff ignores, and what was emphasized in the Lamb Court's discussion of Art. I, Sec. 18, is the prerequisite of legislative recognition of a particular cause of action:

[T]he remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.

308 N.C. at 444, 302 S.E.2d at 882. The Supreme Court further noted that " '[s]o long as an act is not forbidden, the wisdom of the enactment is exclusively a legislative judgment.' " Id. at 433, 302 S.E.2d at 876 (quoting Mitchell v. Industrial Dev. Financing Auth., 273 N.C. 137, 144, 159 S.E.2d 745, 750 (1968)).

Lamb, then, ostensibly supports the constitutionality of G.S. Sec. 122-24 under Art. I, Sec. 18. However, there is language in Lamb which questions its constitutionality:

We refrain from holding, as our Court of Appeals did [in the Lamb decision] and as other courts have done, that the legislature may constitutionally abolish altogether a common law cause of action. Neither do we mean to say that it cannot. The question is not before us.

308 N.C. at 444, 302 S.E.2d at 882.

Lamb is not the first occasion on which the Supreme Court has declined to consider the constitutional question. In Bolick v. American Barmag Corp., 54 N.C.App. 589, 284 S.E.2d 188 (1981), this Court confronted the constitutional issue by stating: "G.S. Sec. 1-50(6), because it would absolutely abolish...