Smith v. King

• Decision Date: 19 March 1993
• Parties: Jack Carlton SMITH, as administrator of the Estate of Derryl Adus Smith v. Kent KING, et al. 1911860.
• Court: Alabama Supreme Court

Page 69

615 So.2d 69

Jack Carlton SMITH, as administrator of the Estate of Derryl Adus Smith v. Kent KING, et al.

1911860.

Supreme Court of Alabama.

March 19, 1993.

Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellant.

Clifford W. Cleveland of Cleveland & Colley, P.C., Prattville, and G.R. Trawick, Asst. Atty. Gen., for appellees.

SHORES, Justice.

This negligence action raises questions of sovereign immunity. The plaintiff, Jack Carlton Smith, as administrator of the estate of Derryl Adus Smith, sued various defendants. Smith appeals from a summary judgment for certain of those defendants: Kent King, Verlee Young, Calvin Campbell, and Von Gibson. Jack Smith initially named 12 individuals as defendants: Glenn Ireland II (commissioner of the State Department of Mental Health), Dr. J.E. Condom (associate commissioner), Charles E. Wells (director of the Thomasville Adult Adjustment Center), Parker Edwards (director of programs at the Thomasville Center), Dr. Margaret Henry (the physician employed by the State to provide medical treatment to patients at the Thomasville Center), Dr. A.G. Arnold (the psychiatrist who examined Derryl Smith), Kent King (a counselor and qualified mental health professional ["QMHP"] ), Verlee Young (a counselor and QMHP), Calvin Campbell (counselor), Mary McGee (practical nurse at the Thomasville Center), Ginger Glenn (social worker at the Thomasville Center), and Von Gibson (aide supervisor). As of May 29, 1992, 4 of those 12 were out of the case, either by summary judgment or by dismissal upon agreement of the parties. On May 29, 1992, the trial court granted a motion for summary judgment as to defendants Glenn Ireland II, J.E. Condom, Charles E. Wells, and Parker Edwards, but reserved ruling on the motion for summary judgment as to defendants King, Young, Campbell, and Gibson. Oral arguments were heard regarding these four remaining defendants on June 22, 1992; and on July 27, 1992, the trial court granted these four remaining defendants' motion for summary judgment. The plaintiff appeals from the summary judgment for those four defendants. We affirm.

Derryl Smith committed suicide while he was a patient at the Thomasville Adult Adjustment Center, Thomasville, Alabama. The Thomasville Center is a state-owned mental health facility operated by the Department of Mental Health; it provides selected patients an opportunity to be treated in a low-restrictive environment. The plaintiff alleged that the defendants, knowing, or while they should have known, that Derryl Smith was suicidal, negligently placed him in a seclusion room and allowed him there to hang himself with his pajama bottoms. The plaintiff initially framed his complaint as a medical malpractice action based on the allegations that Dr. Arnold negligently failed to properly diagnose Derryl's suicidal tendencies and that the other defendants negligently failed to realize that Derryl was suicidal and/or negligently failed to make Dr. Arnold aware of what the plaintiff contends were clear indications of Derryl's suicidal tendency. ¹

The plaintiff contends that Derryl had, on several occasions, threatened to harm himself and had, in fact, made such a threat after becoming violent and being secluded on November 15, 1981. He contends that because of those prior occasions these defendants should have been able to predict that, on this particular occasion, Derryl would carry out that threat. The record reveals that on several occasions Derryl had made threats to harm himself and that he had been placed in seclusion several times because of such threats, but the record contains no evidence that Derryl had ever attempted suicide before. The record indicates that such threats are sometimes used as a manipulative device, and the record indicates that Derryl had admitted that he sometimes used such threats to manipulate his parents and the staff at the Thomasville Center.

The Thomasville Center was staffed by mental health professionals, including a psychiatrist, several psychologists, and professional counselors, who were supported by nonprofessional mental health workers. The staff and support personnel possessed a wide range of qualifications and expertise. 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 and evaluate the implementation of Derryl's treatment plan. In addition to the day-to-day implementation and assessment of Derryl's treatment plan, there was in effect a policy requiring that a patient's treatment be reviewed every 90 days by a reviewing QMHP, who, in this case, was the defendant Kent King. In addition, Derryl's day-to-day personal needs were provided for by nonprofessional aides responsible for his unit and dormitory. These aides were supervised by the defendant Von Gibson.

On November 15, 1981, Derryl spoke by telephone with his mother, and following that conversation he became extremely agitated and destructive and said that he "would just kill himself." Employees of the Thomasville Center, pursuant to the Center's standard operating procedures, took Derryl's street clothing from him and gave him a pair of pajama bottoms, and confiscated all personal effects with which Derryl might harm himself. The employees placed him in a seclusion room to allow him to calm down and to protect him, the staff, and other patients. When Derryl was placed in seclusion, the implementation of these measures was initially begun by Gibson, the nonprofessional aide supervisor on duty in Derryl's unit. The Center's procedure required that the professional on-call ("POC") be notified immediately when a patient was secluded. In compliance with that procedure, someone notified Ginger Glenn, who came to the dormitory and, after observing Derryl, concluded that seclusion was warranted. Procedures in effect at the Thomasville Center also required that a qualified nurse examine a patient immediately after he is placed in seclusion, to be certain that he is uninjured and that he is not in need of medical treatment. This function was performed by Mary McGee, a licensed practical nurse (LPN). There was yet another procedural/policy requirement, that the QMHP on-call be notified of a patient's seclusion and the circumstances that necessitated it. The QMHP on call was required, within one hour, to come to the Center and to personally examine the patient, investigate the circumstances surrounding the incident, and either validate the seclusion or order that the patient be released from seclusion. Kent King was the QMHP on-call, and he was notified at about 8:45 a.m. on November 15, 1981, of Derryl's seclusion. He arrived at the Center about 30 minutes later. When he arrived, McGee and other staff members were administering CPR to Derryl. At about 9:20 a.m., the medical doctor, Dr. Margaret Henry, arrived, and, after examining Derryl, she pronounced him dead.

These four defendants contend that at the time of Derryl's death they were employees of the State Department of Mental Health engaged in the performance of duties and functions clearly characterized as discretionary, and, therefore, that they are entitled to claim substantive governmental immunity from tort liability. They further contend that the...