Texas Dept. of Mental Health and Mental Retardation v. Petty By and Through Kauffman
| Decision Date | 31 December 1992 |
| Docket Number | No. D-1939,D-1939 |
| Citation | 848 S.W.2d 680 |
| Court | Texas Supreme Court |
| Parties | TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, Petitioners, v. Opal PETTY, By and Through her Next Friends, and Linda KAUFFMAN and Herbert Clinton Denson, as Next Friends of Opal Petty, Respondents. |
We consider whether our state government may be held responsible for a citizen's injuries resulting from misdiagnosis and mistreatment during her institutionalization in state facilities. The trial court rejected the State's claim that suit was barred by the doctrine of sovereign immunity and rendered judgment for damages. The court of appeals affirmed. 817 S.W.2d 707. We conclude that the State is not immune from such an action and affirm the judgment of the court of appeals.
Opal Petty, now 74 years old, spent most of her life in state mental health facilities. In 1934, at the age of sixteen, she was committed to the Austin State Hospital on her father's petition. Thirty-seven years later, in 1971, she was transferred to the San Angelo State School, an institution for the mentally retarded. It was not until 1985 that she was furloughed to a foster home and, after four months, to the home of her niece and nephew, Linda Kauffman and Herbert Denson.
Over time the State's diagnosis for Ms. Petty ranged from hebephrenic schizophrenic, mentally ill, not mentally ill, mildly mentally retarded, moderately mentally retarded, to not mentally retarded at all. Her treatment, however, was never affected. For five decades, her treatment consisted of only "custodial" care, the principal rehabilitative therapy being 35 years of work in the hospital laundry at a salary of $2.00 per week.
Ms. Petty brought suit against the Texas Department of Mental Health and Mental Retardation (the Department) and several named individuals alleging negligence, infringement of her rights guaranteed by the Texas Constitution, and violation of state statutes relating to treatment of mentally retarded persons. She complained not only that she was wrongfully confined because she was neither mentally ill nor mentally deficient, but also that she suffered injury because continued misdiagnosis and improper treatment deprived her of an opportunity to function in society. 1 Answering questions favorably to Ms. Petty only as to her negligence cause of action, the jury awarded damages to her of $505,000. The trial court reduced the award to $250,000 under the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE § 101.023(a), and denied Ms. Petty's request for prejudgment interest. The court of appeals affirmed the judgment.
The central issue in this appeal is whether the Department's actions are encompassed within the limited waiver of sovereign immunity contained in the Texas Tort Claims Act. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp.1992). Section 101.021 of the Act provides:
A governmental unit in this state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of his employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
Ms. Petty contended throughout the trial that she was harmed by the Department's use and misuse of her institutional treatment records, which were tangible property within section 101.021(2).
Conceding negligence, the Department asserts that Ms. Petty was not injured by any use of property, but instead by the judgment exercised by its personnel in diagnosis and treatment. It complains that the court of appeals misread Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30 (Tex.1983), by holding that the negligent conduct of its personnel need only involve the use of property, rather than requiring that the property be the instrumentality of harm. The Department goes so far as to suggest that the only way Ms. Petty could have been injured by the treatment records was if a large stack of them had fallen on her head.
The Department's argument, however, misses the mark and directly contradicts this court's unanimous opinion in Salcedo, on which we recently relied in Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 170 (Tex.1989). In Salcedo, we permitted an action to be maintained for a government doctor's alleged misreading and misinterpretation of graphs produced by electrocardiograph equipment. Reversing the lower courts' dismissal of the action, we stated:
[T]he proximate cause of the damages for death or personal injury must be the negligence or wrongful act of the officer or employee acting within the scope of his employment or office. The negligent conduct, however, must involve "some condition or some use" of tangible property under circumstances where there would be private liability.
Salcedo, 659 S.W.2d at 33 (emphasis added). This court was well aware that the exercise of judgment based on medical records was required: "Reading and interpreting are purposes for which an electrocardiogram graph is used or employed in diagnosing myocardial infarction." Id. We certainly did not impose upon Ms. Salcedo the burden of proving that her husband died as a result of physical injury from the graph itself, rather than from the diagnosis premised on that record. See also Huckabay v. Irving Hosp. Found., 802 S.W.2d 758 (Tex.App.--Dallas 1990, writ denied) (). Nor should we impose any such burden on Opal Petty.
Here, the jury explicitly found that Ms. Petty was injured by negligence in the use or misuse of property. Jury Question 2 inquired whether "[f]rom 1970 through 1985, was the negligence, if any, of any agency personnel a proximate cause of any injury to Opal Petty?" The question was limited by an accompanying instruction:
For the purposes of Question 2 only, in determining negligence, if any, of agency personnel, consider only their use or misuse of medical records, staff meeting results, interdisciplinary team staffing reports, progress notes, individualized treatment/habilitation plans, mental status exams, tests, evaluations and diagnoses. 2 The jury's affirmative answer to this question determined that the employees' negligent use or misuse of the various records during the designated period of time was indeed the instrument of harm to Ms. Petty and was sufficient to satisfy the required nexus between employee negligence, the property, and her injury.
The Department further argues that, even if causation is established, no waiver of sovereign immunity occurs because the institutional treatment records are not tangible property under section 101.021(2) of the Tort Claims Act. While recognizing that the records are tangible in that they can be seen and touched, the Department nonetheless contends that Ms. Petty was not injured by the records themselves, but by their contents, consisting of intangible information.
Again, under these facts, our decision in Salcedo is controlling. There we held that misreading and misinterpreting an electrocardiogram was actionable under the Tort Claims Act as a misuse of tangible property. Just as the electrocardiogram was useful as a diagnostic tool because of the information it contained, so are Ms. Petty's records. Just as this court recognized that the purpose of the graph in Salcedo was to develop a diagnosis following reading and interpretation, so were Ms. Petty's records made for use by Department personnel as a diagnostic tool and prognostic device to treat her.
The distinctions the Department suggests we draw between the facts before us and those in Salcedo involve no substantive difference. The first would condition liability on whether the records were generated by a machine or documented by humans. In the latter situation, the Department contends, the intervening exercise of human judgment in determining what observations to record is distinguishable from the same observations mechanically made. Many records used in diagnosing illnesses, both physical and mental, could be generated by either means. Ms. Petty's behavior could have been preserved by videotape or other recording devices rather than by human notes. 3 A temperature could be recorded by machine or be handwritten by a nurse. In Salcedo, we stressed not the method of generating information, but the purpose for which it was intended. There, the electrocardiogram was created for the purpose of being used to make a diagnosis. Here, Ms. Petty's records, ranging from observations to standardized tests and tests results, were generated for the very purpose of making a diagnosis and recommending a course of treatment. 4
The Department's second basis for distinguishing Salcedo would differentiate the "exact" science of cardiology from the less precise disciplines exploring the workings of the human mind. While all sciences affecting the human condition are in many ways imprecise, in all of them the purpose of generating recorded observations and test results is the same--for use in identifying problems and correcting them. Here, the Department's failure to properly rely on diagnostic tests, records and reports constitutes misuse of them under the Tort Claims Act.
In Salcedo the court found persuasive the Legislature's failure to take action following the request of the Chief Justice, in an earlier case,...
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