Sullivan v. Sumrall By and Through Ritchey

• Decision Date: 13 May 1993
• Docket Number: No. 90-IA-0244,90-IA-0244
• Citation: 618 So.2d 1274
• Parties: Bobbie SULLIVAN, R.N. v. Effie SUMRALL, By and Through her Natural Daughter, Tommie RITCHEY, and Thomas Sumrall, Individually.
• Court: Mississippi Supreme Court

Page 1274

618 So.2d 1274

Bobbie SULLIVAN, R.N. v. Effie SUMRALL, By and Through her Natural Daughter, Tommie RITCHEY, and Thomas Sumrall, Individually.

No. 90-IA-0244.

Supreme Court of Mississippi.

May 13, 1993.

J. Robert Ramsay, Nancy E. Steen, Bryant Clark Dukes Blakeslee Ramsay & Hammond, Hattiesburg, for appellant.

Ben F. Galloway, Owen Galloway & Clark, Gulfport, W. Dal Williamson, Caves Williamson & Caves, Laurel, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and McRAE, JJ.

McRAE, Justice, for the court:

In this interlocutory appeal from the Circuit Court of the Second Judicial District of Jones County we are asked to consider whether a nurse employed by a county hospital is shielded by public official qualified immunity from a medical negligence action brought against her individually. Bobbie Sullivan raised the defense of qualified immunity and/or absolute immunity pursuant to Miss.Code Ann. Sec. 41-13-11, et seq. (Supp.1991). However, because Sullivan, as an employee of a county hospital, enjoys no qualified immunity, regardless of whether she has liability insurance, we affirm the Circuit Court's denial of her motion for summary judgment and remand this action to the circuit court for further proceedings.

I.

Sullivan worked as a registered nurse at Jones County Community Hospital, now known as South Central Regional Hospital a community hospital established pursuant to Miss.Code Ann. Sec. 41-13-15 (Supp.1991). At the time of the incident which is the subject of this lawsuit, Sullivan was covered by a $1,000,000 medical professional liability insurance policy which she had obtained from the Chicago Insurance Company.

Effie Sumrall was admitted to Jones County Community Hospital on April 26, 1988, suffering from a severe headache, as well as sinusitis and an upper respiratory infection. Her physician, Dr. Victor Applewhite, ordered a CAT scan for the following morning and prescribed Demerol and Dramamine to alleviate pain. Dr. Applewhite stated in his deposition that the medication was prescribed "p.r.n." which, in the hospital, he explained, means every four hours. He also ordered her vital signs to be monitored every four hours.

Referring to Mrs. Sumrall's medical chart, Nurse Sullivan stated in her deposition that Mrs. Sumrall had received injections of Demerol and Dramamine at 6:45 p.m. and 10:00 p.m. on April 26th. Nurse Sullivan checked on Mrs. Sumrall at 11:00 p.m. An LPN took her temperature and blood pressure at midnight. Her blood pressure was recorded at 90/60, down from 160/80 at 8:00 p.m. At 12:25 a.m., two hours and twenty-five minutes after her last medication, Nurse Sullivan administered another injection of Demerol and Dramamine because Mrs. Sumrall was still complaining of pain. Although hospital rules require consultation with a patient's admitting physician when there is a question about administering medication, Nurse Sullivan stated that she did not call Dr. Applewhite before giving Mrs. Sumrall another injection.

At 4:00 a.m., when Nurse Sullivan made an hourly check on Mrs. Sumrall, she discovered that her patient was not breathing. She issued a Code 99, an emergency signal for a patient in acute distress. An emergency room physician, a Dr. Balaski, responded and revived Mrs. Sumrall.

Mrs. Sumrall was diagnosed as having suffered "respiratory arrest, with what appears to be hypoxic brain injury." Her CAT scans revealed no bleeding, but other tests "revealed [a] grossly abnormal EEG with diffuse and severe slowing." She was transferred to the Jones County Nursing Home where she apparently remained in a coma at the time of trial.

On October 21, 1988, Mrs. Sumrall's daughter and husband filed a complaint against Jones County Hospital. They alleged that the hospital had been negligent in monitoring and medicating her; in failing to notify a physician when her vital signs became irregular; in failing to properly assess her condition and intervene; and in failing to exercise reasonable care. The complaint was amended on January 31, 1989, naming Nurse Sullivan, individually, as a defendant as well.

Following a settlement with the hospital, which had a liability policy in effect, the complaint against it was dismissed with prejudice on June 19, 1989.

Sullivan filed a motion for summary judgment on January 24, 1990. She asserted that as a matter of law, she was shielded from liability under the qualified immunity afforded public officials engaged in their performance of discretionary functions. The circuit court denied the motion, finding that pursuant to Johnese v. Jefferson Davis Memorial Hospital, 637 F.Supp. 1198 (S.D.Miss.1986), Sullivan was not within the class of individuals protected by the immunity provisions of Miss.Code Ann. Sec. 41-13-11 (Supp.1991). The circuit court further denied her request for certification of an interlocutory appeal, holding that the case did not meet the requirements of Miss. Sup.Ct. Rule 5. This Court, however, granted Sullivan's Petition for Interlocutory Appeal and Motion to Stay Proceedings on June 27, 1990.

II.

Sullivan asserts on appeal that, as an employee of a community hospital, she is a public official and therefore, entitled to raise the shield of qualified immunity because she classifies her duties as discretionary rather than ministerial. The genesis of that qualified immunity enjoyed by public officials long has been recognized by this Court. Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1939); Hudson v. Rausa, 462 So.2d 689 (Miss.1984); Marshall v. Chawla, 520 So.2d 1374 (Miss.1988); State of MS for the Use and Benefit of Brazeale v. Lewis, 498 So.2d 321 (Miss.1986). As Sullivan points out, this Court has not specifically addressed whether a nurse employed by a community hospital is entitled to a claim of qualified immunity. She therefore relies primarily on Marshall and Hudson where this Court found that physicians employed by the State were shielded from medical malpractice actions by qualified immunity. In those cases, we cited Poyner v. Gilmore as our authority for the prevailing test for classifying actions as discretionary or ministerial. If a duty is one that has been positively imposed by law or it is to be performed at a specific time, in a specific manner or under designated conditions, with no room for individual judgment or discretion, the act charged therein is ministerial.

This Court recently announced in Womble v. Singing River Hospital, 618 So.2d 1252 (Miss.1993), that

we hold that common law qualified public official immunity will be restricted to its designed purpose. Accordingly, it will not be extended to decisions that involve only individual medical treatment. Those decisions will be judged on the same standards as if made by private providers.

618 So.2d at 1265.

The Womble Court revisited Hudson and Marshall, overruling those cases as they applied to medical personnel employed by a public hospital. The Court further stated that there was nothing inherently governmental about decisions regarding individual medical treatment. Moreover, the fact that a physician or other medical provider is employed by the State does not expose him to any greater threat of suit than he would otherwise face in...