Lead Opinion
This opinion was written by Justice James G. Denton before his death on June 10,1982 and is adopted as the opinion of the Court.
This is a suit for damages against three psychiatrists arising out of an involuntary hospitalization proceeding under the Mental Health Code. The triаl court granted summary judgment for the doctors and the court of appeals affirmed.
On the application of her son and daughter, Marguerite Frances James was hospitalized for observation under the provisions of the Texas Mental Health Code. She was examined by Drs. Brown, Hall, and Rosen-thal, all of whom filed reports with the probate court stating that Mrs. James was mentally ill and likely to cause injury to herself or others if not immediately restrained. In addition, Dr. Rosenthal wrote a letter to the children’s attorney, who was preparing an application for temporary guardianship of Mrs. James’ person and estate, in which he stated that Mrs. James was “not of sound mind and not competent to manage her financial affairs.... ”
Mrs. James obtained a writ of habeas corpus releasing her from the custody of the hospital and all proceedings against her were dismissed by agreement with the children. She then filed this dаmage action against the three psychiatrists, alleging libel, negligent misdiagnosis-medical malpractice, false imprisonment, and malicious prosecution. The court of appeals, in upholding the trial court’s summary judgment for the doctors, held that рublication of the doctors’ opinions pursuant to the mental health and guardianship proceedings was privileged and that no damages could be recovered for the consequences of publication, even though the doctors’ assеssments might have been arrived at negligently.
Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made. Reagan v. Guardian Life Insurance Co.,
A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a prоposed judicial proceeding or as a part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.
The administration of justice requires full disclosure from witnesses, unhampered by fear of retaliatory suits for dеfamation. Thus, the doctors’ reports to the probate judge in Mrs. James’ mental health proceedings are absolutely privileged, and will not give rise to an action for defamation. Dr. Rosenthal’s letter to the children’s attorney is similarly privileged beсause it was written in contemplation of a judicial proceeding. The trial court’s summary judgment concerning these communications was, therefore, proper.
Dr. Rosenthal also furnished his diagnosis of Mrs. James to Blue Cross and Blue Shield of Texas. While therе is no evidence in the record that any privilege attached to this communication, the issue of its possibly libelous nature was never raised in the trial court. Mrs. James only mentioned the Blue Shield communication in response to the doctors’ Motions fоr Summary Judgment, where she stated that the Blue Shield communication should preclude a summary judgment as to her cause of action for negligence:
By his own admission, Dr. Rosenthal was not certain of his diagnosis of Plaintiff that was contained in the Certificate of Mental Illness he executed and had filed in the mental illness proceeding. Dr. Ro-senthal was asked, “Do you recall sending a written diagnosis to Blue Shield stating Mrs. James was suffering from a condition of paranoid psychosis?”, and Dr. Ro-senthal stated in response: “Yes.”
Based upon the foregoing matters, genuine issues of material fact exist in this cause as to whether Dr. Rosenthal acted as a prudent physician in connection with his examination and diagnosis of Plaintiff in October, 1977, and for this reason, Dr. Rosenthal is not entitled to Summary Judgment as prayed for in his Motion.
Apparently, Mrs. James was arguing that Dr. Rosenthal was negligent in describing her mental illness, in light of the discrepancy between the terminology he used in the Certificate of Mental Illness, (involuntion-ary paranoia), and the terminology he used in the Blue Shield diagnosis, (paranoid psychosis).
In City of Houston v. Clear Creek Basin Authority,
The written answer or response to the motion must fairly apprise the movant and the court of the issues the non-mov-ant contends should defeat the motion.
Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.
The Blue Shield communication is not mentioned as the basis of a cause of aсtion for libel. Mrs. James discusses libel only as it relates to the doctors’ communications to the trial court and the letter sent by Dr. Rosenthal to the attorney for the James children. The Blue Shield communication is only mentioned with regard to a cause of аction for negligence-medical malpractice. It cannot now be considered as grounds for reversal of the trial court’s summary judgment on the libel action. Tex.R.Civ.Pro. Rule 166-A.
While the doctors’ communications to the court of their diagnoses of Mrs. James’ mental condition, regardless of how negligently made, cannot serve as the basis for a defamation action, the diagnoses themselves may be actionable on other grounds. In this regard we disapprove the language of Clark v. Grigson,
Tex.Rev.Civ.Stat.Ann. art. 5547-18 provides:
Liability
All persons acting in good faith, reasonably and without negligence in connection with examination, certification, apprehension, custody, transportation, detention, treatment or discharge of any person, or in the performancе of any other act required or authorized by [the Mental Health Code], shall be free from all liability, civil or criminal, by reason of such action.
It is a well settled rule of construction that the “express mention or enumeration of one person, thing, cоnsequence, or class is equivalent to an express exclusion of all others.” State v. Mauritz-Wells Co.,
A cause of action for medical malpractice is essentially a negligence action. See generally J. Perdue, The Law of Texas Medical Malpractice (1975). A psychiatrist owes a duty to his patient to exercise that degree of skill ordinarily employed under similar circumstances by similar specialists in the field. See, e.g., Bowles v. Bourdon,
Mrs. James has failed to state a cause of action for false imprisonment. The essential elements of false imprisonment are: 1) willful detention; 2) without consent; and 3) without authority of law. Moore’s Inc. v. Garcia,
Similarly, Mrs. James has failed to state a cause of action for malicious prosecution. In a suit for wrongful civil proceedings, the plaintiff must plead and prove: 1) the institution or continuation of judicial proceedings; 2) by, or at the instance of the defendant(s); 3) malice in the commencement of the proceedings; 4) lack of probable cause for the proceedings; 5) termination of the proceedings in plaintiff’s favor; and 6) damages. Martin v. Trevino,
Accordingly, the judgment of the court of appeals is affirmed in part and reversed and remanded in part for determination by the trial court of Mrs. James’ causes of action for negligent misdiagnosis-medical malpractice against all three psychiatrists.
Dissenting Opinion
dissenting.
I concur in the mаjority’s decision concerning James’ cause of action for malpractice, but respectfully dissent as to their decision that the summary judgment rendered was proper as to the possibly libelous nature of Dr. Rosenthal’s letter diagnosis to Blue Cross & Blue Shield of Texas.
I would hold that the trial court’s summary judgment was improper in light of the fact that on at least three occasions James pointed out the existence of this letter to the trial court. They are:
1. “Plaintiff’s Response to Defendant, Michael R. Rosenthal, M.D., Motiоn for Summary Judgment”;
2. “Plaintiff’s First Response to Defendants’ Motion for Summary Judgment”; and
3. “Plaintiff’s First Supplemental Response to Defendants’ Motion for Summary Judgment.”
Each of these times James specifically pointed out that Dr. Rosenthal had written to Blue Shield stating that Mrs. James wаs suffering from a condition of paranoid psychosis. These facts set out a cause of action for libel, and show the existence of a genuine issue of material fact. Further, in his deposition that was before the trial court, Rosenthal admitted tо writing this letter.
Admittedly, James never specifically pointed out the existence of this letter within the context of her libel cause of action, but used this letter to show the inconsistency of the defendant’s diagnosis. However, the demands of Rule 166-A, Tex.R.Civ.Pro. and its interрretation in City of Houston v. Clear Creek Basin Authority,
[Sjummary judgments must stand on their own merits, and the non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right.
Id. at 678.
James as the non-movant did present the trial court with the facts that state a cause of action for libel. I would hold that James has preserved her cause of action based on the fact that the movant defendant Rosen-thal did not meet his burden under Rule 166-A.
SPEARS, J., joins in this dissent.