State ex rel. Howenstine v. Roper
| Decision Date | 15 February 2005 |
| Docket Number | No. SC 85998.,SC 85998. |
| Parties | STATE ex rel. Deborah HOWENSTINE, M.D., Relator, v. The Honorable Ellen S. ROPER, Respondent. |
| Court | Missouri Supreme Court |
Michael R. Tripp, John L. Roark, Columbia, for relator.
Michael D. Strohbehn, Kansas City, for respondent.
In the underlying medical malpractice case, Paul Muren claims that Dr. Debra Howenstine is responsible for negligent treatment he received from various nurses at a public health center. Dr. Howenstine moved for summary judgment on the bases of official immunity and public duty immunity. The trial court overruled Dr. Howenstine's motion. This Court issued a preliminary writ, which is now made absolute.
"Prohibition is particularly appropriate when the trial court, in a case where the facts are uncontested, wrongly decides a matter of law thereby depriving a party of an absolute defense." State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002). "Forcing upon a defendant the expense and burdens of trial when the claim is clearly barred is unjust and should be prevented." State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 500 (Mo.App.1985).
Mr. Muren visited the City of Columbia/Boone County Health Department Clinic in April 2000. He was initially treated by four public health nurses and an advanced practice nurse. He tested positive for tuberculosis. The advanced practice nurse prescribed Isoniazid (INH) and he began the nine-month treatment. The treatment destroyed Mr. Muren's liver and he received a transplant in October 2000.
Dr. Howenstine was consulted and began treatment of Mr. Muren on September 19, 2000. There are no allegations that Dr. Howenstine negligently treated Mr. Muren herself, but instead Mr. Muren claims that she was responsible for the actions of the nurses at the clinic. In addition to her role as a consulting and treating physician at the clinic, Dr. Howenstine was the medical director for clinic. As medical director, she assisted in adopting protocols and participated in training, consulting and supervision at the clinic.
Mr. Muren brought suit against the nurses and Dr. Howenstine. He settled his claims against the nurses. Dr. Howenstine's liability is the only remaining issue. There is no genuine issue of material fact. There is no dispute that the clinic nurses provided negligent treatment to Mr. Muren. The dispute is legal. Within the context of the delivery of population-based health services, is Dr. Howenstine immune from the suit?
The Department of Health for the State of Missouri has the charge to "safeguard the health of the people in the state and all its subdivisions." Sec. 192.020, RSMo.2000.1 Part of this charge is carried out by local public health centers, which are intended to improve the health of all inhabitants of the county. Sec. 205.050;2 19 C.S.R. 10-1.010(1), (4).3 These local centers are organized by collaborative practice arrangements, which "delegate to ... registered professional nurse[s] the authority to administer or dispense drugs and provide treatment ... [and to] prescribe drugs if the registered nurse is an advanced practice nurse." Secs. 334.104(1), (2).4
The state boards of nursing and of the healing arts promulgate the rules regarding collaborative practice arrangements. Sec. 334.104(3).5 The relevant rules are contained in 4 C.S.R. 200-4.200(1), (5).6
Subdivision (5) of the regulation states: "(A) In ... public health clinics that provide population-based health services limited to ... tuberculosis control ..., the geographic areas, methods of treatment and review of services shall occur as set forth in the collaborative practice arrangement." Id. at (5)(A). This is in contrast to "services ... includ [ing] diagnosis and initiation of treatment of disease or injury not related to population-based health services" when "the provisions of sections (2), (3), and (4) above shall apply." Id. at (5)(A).
A collaborative practice arrangement is simply the operating agreement between physicians and nurses to provide treatment. Id. at (1)(B). There are several collaborative arrangements for various purposes at the Boone County clinic, but the one that specifically pertains to the delivery of population-based services is contained in the Columbia/Boone County Health Department Policies and Protocols Manual. It provides, 7 Collaborative Practice Arrangement, Policies and Protocols 2001, Columbia/Boone County Health Department Manual 3.
As medical director for the clinic, Dr. Howenstine relies upon two related, but different immunities — official immunity and public duty immunity. Both of these immunities have been discussed thoroughly by this Court.
Charron v. Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996). Public duty immunity "holds that a public employee may not be held civilly liable for breach of a duty owed to the general public, as distinguished from a duty owed to particular individuals." Green v. Denison, 738 S.W.2d 861, 866 (Mo. banc 1987). This immunity does not require that the individual be a public official. Brown v. Tate, 888 S.W.2d 413, 416 (Mo.App.1994).
Dr. Howenstine meets the test for official immunity. She is an official and was acting in her discretionary capacity.
A public office is the right, authority and duty, created and conferred by law, by which ... an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.
State ex rel. Pickett v. Truman, 333 Mo. 1018, 64 S.W.2d 105, 106 (1933). "Whether or not a public employee is a public officer is dependent upon the legal and factual circumstances involved." State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 764 (Mo.App.1981). This immunity protects "those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public's business." Kanagawa v. State, 685 S.W.2d 831, 836 (Mo. banc 1985).
Dr. Howenstine's position as medical director existed to discharge the city, county and state obligations to improve the health of the public. The health department was delegated this authority by law. Sec. 205.050; 19 C.S.R. 10-1.010(4).8 Her particular office was created by agreement between the City of Columbia and the University of Missouri, in part, to maintain collaborative practice arrangements, adopt protocols and standing orders for the nurses to follow and provide consultation to nurses and patients at the clinic. The fact that Dr. Howenstine is an employee of the University of Missouri and that she serves as the medical director of the health department pursuant to an agreement between the City of Columbia and the university is not consequential to the determination. Dr. Howenstine was a public official for purposes of this lawsuit.
"Whether a function is discretionary or ministerial is a case by case determination to be made after weighing such factors as the nature of the official's duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment." Charron v. Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996).
The duties exercised by Dr. Howenstine as medical director of the health department are primarily discretionary. Mr. Muren, however, raises a number of arguments why Dr. Howenstine should not be allowed immunity on this basis. This opinion will address Mr. Muren's arguments in relation to the claims he raised in his petition.
The first group of Mr. Muren's claims involves a determination of whether Dr. Howenstine, as a treating physician, can be vicariously liable for the nurses' actions. Mr. Muren first alleges that Dr. Howenstine "failed to properly train and supervise the nurses and nurse practitioners at the Health Department clinic to follow the established policies, procedures and protocols in providing health care to [him], including prescribing and dispensing the medication INH to [him] and monitoring his reaction to the medication[.]" He also claims that she "failed to conduct adequate history and physical examination on [him]; and failed to provided necessary medical direction, services, consultation and supervision of the nurses who provided services to [him.]" Further, Mr. Muren claims that Dr. Howenstine "failed to provide adequate patient education to [him] regarding risks, benefits, contraindications, adverse effects of the mediation INH ... and the need for monitoring."
Essentially, Mr. Muren argues that Dr. Howenstine's acts were not discretionary because they arose from her acts as a treating physician. In Eli Lilly v. Gaertner, a group of doctors working at a state institution was sued in malpractice for prescribing a drug that harmed the defendant. 619 S.W.2d 761, 762-64 (Mo.App.1981). The court held that the "doctors [were] being sued as treating physicians, not as titular heads of any department ... not ... for an erroneous decision requiring the exercise of governmental judgment and discretion but for an allegedly erroneous medical decision...." Id. at 765. Because Dr. Howenstine is not being sued for any neglect on...
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