Robinson v Univ. of S. Al Med. Ctr., 1970493

• Decision Date: 24 November 1999
• Docket Number: 1970493
• Parties: SUPREME COURT OF ALABAMA
• Court: Alabama Supreme Court

SUPREME COURT OF ALABAMA

NOVEMBER 24, 1999

OCTOBER TERM, 1999-2000

1970493

Ex parte Botros Rizk, M.D.

PETITION FOR WRIT OF MANDAMUS

(Re: Luciana Robinson, as administratrix of the estate of Elouise Robinson, deceased v University of South Alabama Medical Center et al.)

(Mobile Circuit Court, CV-96-161)

JOHNSTONE, Justice.

Defendant-petitioner Dr. Botros Rizk petitions this Court for a writ of mandamus directing the trial court to vacate its order denying Dr. Rizk's motion for summary judgment and to grant him summary judgment on the ground of his qualified immunity from suit. We determine that the writ shall issue.

Luciana Robinson, as administratrix of the estate of Elouise Robinson, deceased, filed a wrongful death action on the theory of medical malpractice pursuant to § 6-5-548, Ala. Code 1975. One of the defendants is Dr. Botros Rizk, a resident at the University of South Alabama Hospitals and Clinics (USAHC), a state institution. The complaint alleges that negligence by Dr. Rizk in performing an emergency caesarean-section delivery and in providing aftercare proximately caused the death of his patient, whose estate the plaintiff Robinson administers.

Dr. Rizk moved for summary judgment. One of his grounds is that his status as a state employee performing a discretionary function immunizes him from suit. The trial judge denied Dr. Rizk's motion for summary judgment, Dr. Rizk sought permissive appeal under Rule 5, Ala. R. App. P., the trial judge denied permission, and Dr. Rizk petitioned this Court for a writ of mandamus directing the trial judge to grant the motion for summary judgment. While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So. 2d 794 (Ala. 1996). This Court will address only the issue of qualified immunity and will state only the operative facts material to that issue.

Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So. 2d 402 (Ala. 1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So. 2d 397 (Ala. 1996), Fuqua v. Ingersoll-Rand Co., 591 So. 2d 486 (Ala. 1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So. 2d 981 (Ala. 1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So. 2d 185 (Ala. 1998).

An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So. 2d 1278 (Ala. 1991), Boland v. Fort Rucker Nat'l Bank, 599 So. 2d 595 (Ala. 1992), Rowe v. Isbell, 599 So. 2d 35 (Ala. 1992).

Dr. Rizk was a full-time third-year resident at USAHC, a division of the University of South Alabama and a state entity for the purposes of immunity analysis. Sarradett v. University of South Alabama Medical Center, 484 So. 2d 426 (Ala. 1986). The only compensation he received was his salary paid by USAHC. He was licensed to perform the caesarean section and to provide the aftercare under the supervision of an attending physician.

Robinson, the plaintiff, challenges Dr. Rizk's status as a state employee by citing facts to the effect that USAHC allowed the attending physician, through a private medical business entity, to bill patients for his services in supervising Dr. Rizk and other residents and to receive private compensation pursuant to such billings. This side agreement, however, does not diminish Dr. Rizk's status as a state employee, as he received none of the side- agreement moneys. Robinson's claim against the attending physician is not before us in this case.

Notwithstanding the convoluted and inconsistent history of qualified immunity in Alabama and the vague and ambiguous state of this law now, the issue whether Dr. Rizk is immune from suit by virtue of his status and function as a healthcare provider employed by a state entity is controlled by DeStafney v. University of Alabama, 413 So. 2d 391 (Ala. 1982), and particularly by Smith v. Arnold, 564 So. 2d 873 (Ala. 1990), and Smith v. King, 615 So. 2d 69 (Ala. 1993).

"Generally, the State of Alabama and its officers and agents cannot be made defendants in any court. See Ala. Const., art. I, § 14. This absolute or constitutional immunity extends to state officers when the action filed is, in effect, against the State. DeStafney v. University of Alabama, 413 So. 2d 391, 393 (Ala. 1982). However, this absolute immunity does not always shield state officers from liability for negligent acts, even when committed in the line and scope of their employment. Hickman v. Dothan City Bd. of Educ., 421 So. 2d 1257, 1259 (Ala. 1982). The lack of absolute immunity does not, however, mean that state officials are amenable to suit for any act or omission that could be characterized as negligent. This Court stated in DeStafney, supra:

"'This is not to say, however, that every act or performance of duty by a state official or employee, by virtue of its characterization as negligence, necessarily falls outside the immunity doctrine. Even absent the requisite identity between the State and the state official or employee defendant to invoke absolute immunity, the Restatement's doctrine of substantive immunity may yet be invoked if the official or employee 1) is engaged in the exercise of a discretionary function; 2) is privileged and does not exceed or abuse the privilege; or 3) is not negligent in the performance of his responsibility.'"

Arnold, 564 So. 2d at 875 (emphasis added). King, supra, recognizes the same rule and further recognizes the holding that,

"`[W]hether a particular defendant is engaged in a protected discretionary function and is thereby immune from liability for injuries he causes is a question of law to be decided by the trial court.'"

615 So. 2d at 72. (Quoting Grant v. Davis, 537 So. 2d 7, 8 (Ala. 1988).)

Thus the rule, in the pertinent part applicable here, is that a state employee is immune from suit for negligence in the performance of a discretionary function of his or her state employment. Further, the duty now devolves upon this Court to decide, as a matter of law, whether Dr. Rizk is immune from Robinson's suit. He is, if his care of his patient, who died, was a discretionary function.

The law of this state on discretionary-function immunity is problematic in that virtually any function may be argued, and indeed held, to be discretionary. A prime example is Louviere v. Mobile County Board of Education, 670 So. 2d 873 (Ala. 1995). There, a school janitor, McDougle, found a dangerous hole in the ground on school premises where the students would walk. He covered the hole with a piece of plywood, notified the school principal, and continued his morning routine of unlocking doors. Within minutes the minor plaintiff, a student there, stepped into the hole, where hot water or steam from an underground boiler pipe burned and injured her foot. This Court held:

"When McDougle placed the plywood over the hole, he was making personal, discretionary judgments concerning the appropriate action to take under the circumstances. Therefore, he was entitled to discretionary immunity."

Louviere, 670 So. 2d at 878. The difficulty of the discretionary- function standard has been frequently and candidly recognized by this Court. See, e.g., Arnold, 564 So. 2d at 875, and King, 615 So. 2d at 72.

As problematic as the discretionary-function immunity rule of this state may be, this Court has specifically applied it to state- employed healthcare providers for their hands-on medical treatment of their patients in both Arnold and King. Both Arnold and King, supra, arise from the same death, the suicide of Derryl Smith at a state mental facility. Smith v. Arnold was Derryl's administrator's appeal from a summary judgment in favor of the defendant Dr. Arnold. Smith v. King was Derryl's administrator's appeal from summary judgment in favor of four other defendant healthcare providers at the mental facility. The administrator had sued Dr. Arnold and others, including the four, for negligence in causing or allowing Derryl's death. Dr. Arnold's participation is described as follows:

"Dr. Arnold examined Derryl approximately six times during his stay at the Center, with the last examination taking place on October 28, 1981. Following that examination, Dr. Arnold noted that Derryl's condition had deteriorated and that his behavior was 'out of control' 50 to 60 percent of the time. Dr. Arnold felt the programs and facilities at the Center were not meeting Derryl's needs and recommended that he be transferred to the state mental hospital of origin. Dr. Arnold also recommended that Derryl be taken off all psychotropic medications on a trial basis, so that a more accurate re- evaluation of his underlying psychopathology could be performed."

Arnold, 564 So. 2d at 874. The participation of the other four defendant healthcare providers is described, in part, as follows:

"Derryl was being treated in accordance with an individualized treatment plan developed and monitored by a treatment team that included a counselor, the defendant Calvin Campbell. Campbell's work was continually reviewed by a supervising `QMHP,' the defendant Verlee Young, and the entire treatment team met periodically to assess...