Samter v. Department of Public Welfare

• Decision Date: 20 March 1956
• Docket Number: Gen. No. 10906
• Citation: 132 N.E.2d 810,9 Ill.App.2d 363
• Parties: Dr. Bernhard SAMTER, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC WELFARE and Illinois State Civil Service Commission, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 810

132 N.E.2d 810

9 Ill.App.2d 363

Dr. Bernhard SAMTER, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC WELFARE and Illinois State Civil Service Commission, Defendants-Appellants.

Gen. No. 10906.

Appellate Court of Illinois, Second District.

March 20, 1956.

Latham Castle, Atty. Gen., for appellants.

Dale Ferguson, Paul E. Rink, Rock Island, for appellee.

EOVALDI, Justice.

This is an appeal from an order of the circuit court of Rock Island County reversing the findings and decision of the Civil Service Commission, which, in turn, had discharged the appellee from his position as Psychiatrist I in the East Moline State Hospital and ordered his reinstatement to his position with the Department. The proceedings were based upon the provisions of the Administrative Review Act, Chapter 110, Pars. 264 to 279, incl., Ill.Rev.Stat., 1953.

Defendants-appellants' theory is that the evidence sustains the Department's finding that appellee mistreated a mental patient in violation of applicable rules and that the trial court erred in holding the contrary. It is plaintiff-appellee's theory that the Hearing Officer of the Commission entirely ignored the law in his findings and conclusions; that the manifest weight of the evidence clearly indicated that the plaintiff's actions were justified; and that the Department's Rule No. 25, on which the Commission's judgment was based, is merely a directive as to the administrative duty of the Superintendent of the Hospital and not a restriction on the plaintiff.

The request for the discharge of plaintiff was based upon the following charges:

'1. Abuse of a mental patient. On September 16, 1953, Dr. Samter attacked patient, Jerry Katapodes, with intent to do bodily harm.

'2. Conduct unbecoming a State employee. By his abuse of the patient Dr. Samter exhibited conduct that cannot be tolerated in the Department of Public Welfare or by his hospital.

'3. Violation of rules of the Department. Dr. Samter's action in the treatment of this patient was a stringent violation of Administrative Regulation No. 25 concerning mistreatment of patients.'

Regulation No. 25 of the Rules and Regulations of the Department of Public Welfare of the State of Illinois, reads as follows:

'Mistreatment of patients, wards or members of state institutions under the Department of Public Welfare:

'The superintendent of a state institution shall see that all staff officers and personnel of his institution understand that no mistreatment of patients, wards, or members will be condoned.

'Mistreatment may be defined as: (1) Forcibly laying hands on patients, wards or members; (2) striking, pushing, pulling or shoving patients; (3) corporal punishment of any sort; (4) violence of any character; (5) use of violent, profane or obscene language; (6) use of seclusion in mental hospital; (7) applying restraint at hospitals for the mentally ill without a physician's written prescription; (8) administering restraint or seclusion in the security facilities without a physician's written prescription; (9) any other action on the part of any employee towards a patient, ward, or member which would be injurious to such patient, ward or member, including deliberate neglect or failure to respond to his obvious needs.'

As will be pointed out later in this opinion, plaintiff had spent almost his entire professional life dealing with patients in mental institutions. To have reached the grade of Psychiatrist I, after having served as Physician I at this institution for many years, he must have familiarized himself with certain of the rules and regulations of the institution.

As to his contention that the above regulations apply only to the Superintendent and are not binding on plaintiff, reference is made to 43 Am.Jur. (Public Officers), Par. 281, wherein it is said:

'It is settled, subject, however, to a number of exceptions, that in the absence of a statute imposing liability, or of negligence on his part in appointing or supervising his assistants, an officer is not liable for the default or misfeasance of subordinates and assistants, whether appointed by him or not, providing the subordinates or assistants, by virtue of the law and of the appointment, become in a sense officers themselves, or servants of the public, as distinguished from servants of the officer, and providing the officer does not direct the act complained of, or personally co-operate in the negligence from which the injury results.'

Plaintiff was an appointed assistant as distinguished from a servant of the Superintendent. Nothing in the evidence would tend to indicate that anyone directed the doctor to take the action he took with reference to the patient. In Barker v. Chicago, P. & St. L. Ry. Co., 243 Ill. 482, 90 N.E. 1057, 26 L.R.A.,N.S., 1058, our Supreme Court held that public officers and agents of government are liable for their own personal negligence or defaults in the discharge of their duties, but are exempt as such officers or agents, from liability for the negligent acts of their subordinates in performing their duties. Section 16 of the Civil Administrative Code, Ch. 127, Ill.Rev.Stat., 1953, empowers the director of each department to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its employees and clerks, etc. Regulation 25 has been promulgated by the Department, and it can hardly be contended that it applies only to the Superintendent when we consider that without the help of assistants, it would be impossible for the Superintendent to properly carry out the myriad of functions attendant to his office. The rule specifically states that: 'The superintendent of a state institution shall see that all staff officers and personnel of his institution understand that no mistreatment of patients, wards, or members will be condoned.' The contention that the Superintendent is the only person who can be guilty of violating Rule 25 is without merit.

From the record it appears that the plaintiff had been an employee of the State of Illinois at East Moline State Hospital since February, 1947, as Physician I, and since October 1, 1951, as Psychiatrist I; that previous thereto he had been employed in a State Institution at Cherokee, Iowa, first as a resident physician, and later on, in a 'little higher capacity, meaning I got more money.' He was employed there from June 27, 1943, until February 2, 1947. From March, 1942, until April 12, 1943, he was employed at a State Hospital in Provo, Utah. From July, 1939, to December, 1941, he was employed at Dixon and St. Charles. He obtained his license to practice on March 6, 1939.

The four witnesses introduced by defendants were all present in Taylor Cottage on September 16, 1953, and saw the incident or a portion of it. Buelah Burdick, a recreational aide, was about eight feet from the doctor and saw the entire incident. She testified that she saw the doctor get up from his desk, and hit Jerry, and knock him down, and while he was down he kicked him. 'He hit him with his fist,' she said, but she did not observe if it was with an open hand or a clenched fist. She further testified that the doctor kicked him several times and that he then took him by his shirt, picked him up and knocked him down again. 'Jerry then got up and started walking across the room, and Dr. Samter kicked him and hit him again; and the last time he hit him, Jerry fell and hit his head on a chair and cut his head open.' She further testified that when Jerry got up, blood was pouring down from his head; the doctor went to him, cut his hair and doctored him with the assistance of a nurse. She stated the doctor told her he was protecting Mrs. Whitmer.

On cross-examination, Miss Burdick testified that she had been warned that Jerry was a dangerous or violent patient, but she had never seen him strike at any of the entertainers or recreational workers and he had never made any physical advances toward her. As to Dr. Samter's treatment of the patients, other than on this occasion, she said 'he was always co-operative, and helped her take the patients out for fresh air.' Miss Burdick testified on rebuttal that, 'Jerry did not go back toward Mrs. Whitmer.'

Mrs. Gladys Whitmer, who was seated at the piano with her back to the audience, testified that Jerry walked past her, took a swing at her and she just ducked and kept on playing. She heard 'kind of a commotion' and looked over her right shoulder and Dr. Samter had hold of him. She could not tell whether he struck him; Dr. Samter was either pushing or striking the patient. On cross-examination she said she did not see it at all; that Dr. Samter was very angry and that she knew Jerry was dangerous and that she had heard of him hitting other people, but she did not think he was so hard to handle. She further testified that Dr. Samter had been very kind to the patients.

June Dunning, a practical nurse, was at the door letting company out and in; returned, and 'saw Dr. Samter give Jerry a whirl around, and a shove around, and he fell broadside and he hit his head on the floor.' She testified the doctor treated him, and that 'Jerry must be in his fifties, 55, 56, and she believed he would weigh 150 pounds and was nearly six feet tall.' She further testified that in her opinion Jerry was a dangerous patient and that on one occasion at least two years back he was put in seclusion. She corroborated Miss Burdick's statement that the doctor had generally been kind toward the patients, treated them to pop and tobacco and showed them lots of consideration.

Lucy Fairbank, the other Department witness, had come into the room when the activity was going on. She testified that the patients at this hospital were mentally ill, and that Taylor Cottage 'is what we describe as nice, old men, about half of them are in bed, and the rest of them are sitting in the Day Room. They are mostly peaceable older men. They are assigned there not only...