*1 Pаngburn v. Saad SHERI ELIZABETH v. DR. M. PANGBURN SAAD DR. E. V. MAYNARD
No. 844SC266 (Filed 1985) 5 March Physicians, Surgeons 1. § and Allied wrongful Professions 11— release of mental patient malpractice —physician-patient based on privity required —not injuries An action for party suffered resulting a third from the case, wrongful patient release of a mental is not malpractice a medical physician-patient privity required. is not § 2. immunity Constitutional Law 20— hospital staff members at state —no equal protection violation provides personal immunity G.S. which for staff members of hospitals, I, state equal protection does not violate the clаuse of Art. Sec. 19 of the North suspect Carolina Constitution because no right class or fundamental involved, and because a psychiatrists rational basis is served in that are ex- posed unique they and, risks when patient decide to release a absent im- munity, accept would be lower-paying jobs reluctant and disinclined to patients. 11; § 3. personal § Insane Persons immunity Courts 1— hospital of state staff ordinary negligence members —limited to open —no violation of courts 122-24, grants personal immunity G.S. to staff members at state hospitals, injured does plaintiff remedy not leavе the without a in violation of I, open provision courts of Art. Sec. 18 of the North Carolina Constitution qualified because it was intended to create a extending to or- acts, dinary negligent protect personal liability does not a tort-feasor from (1979). gross negligence and intentional torts. G.S. 97-10.1 wrongful § discharge Insane Persons 11— patient —allegations of mental suffi- cient complaint Plaintiff’s upon a claim stated which relief could be should not have been alleged dismissed where she that her brother had been psychiatric under history care since childhood and had a of emotional disorders members, family and violent behavior which included attacks including plaintiff; Cherry that he Hospital had been committed to on at least seven oc- casions since 1979 and psychiatric, that defendant was aware mental and history; involuntarily emotional Cherry that he was Hospital committed to defendant, suicidal, based on the recommendation of who had found him to be others, dangerous to himself and and to have threatened harm to himself and others; plaintiffs parents objected had met with defendant and to their release, telling thеy son’s defendant and their children were afraid to home; have him in the and that was attacked and stabbed her night brother the same he was released. G.S. 122-24 Judge concurring. Wells OF APPEALS *2 Bruce, by plaintiff from Judge. Judgment entered APPEAL Court,
December 1983 in Superior County. Heard in the Onslow Appeals Court of 15 November 1984. Ellis, Warlick, Hooper, Morgan, by Waters & William J. Mor- gan, plaintiff appellant. for Smith, Anderson, Blount, Dorsett, Mitchell Jernigan, by & Blount, Jr.,
James D. King, Jodee Sparkman for defendant Saad. appellee
BECTON, Judge.
W Plaintiff brought this action for compensatory punitive damages for personal injuries sufferеd as a wrongful result brother, release of her Cherry Daniel Pangburn, Olin from Hospi- Goldsboro, Carolina, defendant, Saad, tal in North by Dr. a M. psychiatrist staff hospital. alleges Plaintiff that her brother discharged defendant and on 26 sent home March later, that less than 16 hours he stabbed her approximately knife, “serious, with times a kitchen inflicting disfiguring and 12(b)(6) life-threatening wounds.” Dr. a Saad made Rule motion to action, dismiss for failure to cause of which motion was the trial court. appeals. Plaintiff Plaintiff asks this to recognize Court a cause of action for in- juries resulting from the of a wrongful patiеnt. release mental She also asserts that N.C. Gen. Stat. Sec. 122-24 Saad, allegedly immunity confers Dr. hospital a State medi- member, cal staff for his decision release Daniel is Pangburn, unconstitutional and thus no barrier presents recognition of cause of action. argues plaintiffs Defendant that action barred is because this is medical malpractice action and there is no privi- Further, ty between and Dr. plaintiff Saad. defendant contends that even if this recognizes a cause of action for wrongful release of a mental patient, provides G.S. Seс. 122-24 de- fendant with liability. from personal plaintiff We hold that has claim for relief Dr. against stated a Saad, brother, based on his we wrongful release of her fur- only ther Sec. 122-24 qualified hold that G.S. affords immunity, liability immunizing physicians their or- “wilful, not from for their
dinary negligent acts but wan- recklessly” ton or acts or their intentional acts. As sufficiently Dr. alleged a cause of action Saad Daniel the order of the Pangburn, decision trial court must be reversed.
II [1] initial barrier posed by defendant Saad recognition physician-patient cause of action there no plaintiffs Dr. plaintiff and Saad. Defendant contends privity between prerequisite malpractice is an absolute to a medical privity such *3 However, not with ac malpractice action. we are faced a medical rejected Supreme Georgia argument tion. of this exact The Court claim the State: wrongful brought against on a death “[T]his case; ordinary it in which negligence a is an case malpractice Center, an essential element.” Inc. Bradley has never been privity (1982). 203, Wessner, 199, 693, 296 That v. 250 Ga. S.E. 2d situation from so-called distinguished negligent release court actions,” duty noting legаl that the malpractice medical “classic duty one owes general with the former arose out of the involved risk of harm. subject it to an unreasonable to all the world not lower court’s defini approval with the Georgia quoted duty release cases: of involved legal tion the patient of a mental involves the course of treatment ‘[WJhere by a who patient] physician over an of “control” exercise [the likely know to cause bodi- patient knows or should that others, rela- duty an arises from that ly independent harm that control upon the to exercise tionship physician and falls to others at prevent care as to harm with such reasonable patient.’ the hands of Center, 201, Inc. v. Bradley 695-6 (quoting 296 S.E. 2d at
Id. at (1982)). 716, Wessner, 721 S.E. 2d Ga. claim, the Fourth Circuit factually comparable Addressing with a claim similar case deals Virginia no said: “Apparently, of the general principles resort to the so we must to [plaintiffs], Institute, F. v. Psychiatric torts.” Semler law of Virginia 121, — —, (4th Cir.), denied, L.Ed. 2d U.S. cert. (1976). principles, tort We likewise North Carolina apply S.Ct. negligence, for actionable a claim that states and find APPEALS OF Pangburn Saad
namely, duty that defendаnt he owed to plaintiff, breached breach, injured and that she was as a of proximate cause reasonably injuries that her result from being foreseeable would Builders, Inc., Ashe breach. See v. Acme (1966) (for Center, S.E. 2d Bradley elements of negligence); Inc. v. Wessner.
Ill exists, weAs find that a of cause action we must next ex- amine the of impact G.S. Sec. 122-24 which provides: administrator, services, No any chief of or medical staff member under the supervision and direction of adminis- trator or chief any medical services of State hospital shall personally liablе for act or in thing done under pur- of any suance this provisions Chapter.
Dr. Saad stated in his affidavit that he was staff psychiatrist under the supervision and direction the Administrator or Chief of Medical Cherry Services of Hospital. The Daniel an Pangburn, involuntarily committed patient, was ac- apparently then, complished under G.S. Sec. 122-58.13 Clearly, the pro- visions G.S. Sec. 122-24 seem to immunize defendant *4 from liability, and the reported cases found construing G.S. (19 ) Sec. 122-24 and its predecessor support this conclusion. Rader, 383, (1909),
In Bollinger v.
151
66
N.C.
S.E. 314
plain-
tiff sued the superintendent
and directors of a statе mental
hospital
damages
caused
the negligent release of a violent
patient who murdered plaintiff’s intestate six months
he
after
Court,
was discharged. The
Supreme
relying
predecessor
122-24,
to G.S. Sec.
held
that
had not stated
cause
of ac-
77,
tion. In Susan B. v. Planavsky, 60 N.C. App.
IV A. Art. violates the separate grounds: [2] attacks We next address I, Sec. 19 of the North Carolina “open constitutionality (a) courts” that plaintiffs it violates the provision of G.S. Sec. constitutional found in Art. Constitution, equal protection 122-24 challenge. I, (1981) Sec. (b) clause of Plaintiff on two that North Constitution. Carolina not violate our clause. equal protection The statute does staff distinguishes in G.S. Sec.
classification drawn members of non- State mental from staff hospital members of a employees. from all other State As hospitals, possibly included involved, the lоwer tier right class or fundamental suspect no test, is analysis, employed. the “rational basis” of equal protection challenged statute that distinctions drawn This test requires legitimate gov- to a conceivable relationship bear some rational v. Town N.C. Highlands, ernment interest. Abbott denied, and disc. rev. dismissed appeal S.E. 2d (1981); South Wedgewood Corp., see Lamb v. S.E. 2d classifications (legislative 302 S.E. 2d valid). no North case discusses Although Carolina presumed statute, it is self-evident undergirding considerations policy they risks when decide unique exposed that are psychiatrists Also, would immunity, psychiatrists absent patient. to release a disin- jobs, lower-paying accept more reluctant In our they jobs. such accepted once patients to release clined statutory classifica- easily justify the considerations opinion, tion.
B. “every [3] Article person I, for an injury done our Constitution him in his provides, lands, goods, person, inter alia, . . .” of law. Plain remedy by due course shall have or reputation Dr. suit bringing if she is barred argues tiff *5 Saad, ig What remedy injury. plaintiff for her a she is denied nores, discussion in the Lamb Court’s emphasized was and what I, 18, of a recognition legislative оf prerequisite is the Art. Sec. cause of action: particular remedy constitutionally guaranteed must be
[T]he
one that is
legally cognizable. The legislature has the power to define
the
remedy
circumstances under
is legally cognizable
and those under which it is not.
444,
the enactment is exclusively a legislative Id. at judgment.’ 302 S.E. at 2d 876 (quoting v. Financing Mitchell Industrial Dev. Auth., 137, 144, (1968)). 745, 159 S.E. 2d
Lamb, then, ostensibly supports constitutionality the of G.S. I, However, Sec. 122-24 under Art. Sec. 18. there is language Lamb which questions constitutionality: its We refrain from holding, our Appeals Court of did the [in done,
Lamb and as other courts have decision] legislature may constitutionally abolish altogether a common law cause action. Neither do we mean say that it cannot. The question not before us. 444, at 302 S.E. at 882. N-C.
Lamb is not the first occasion on Supreme which the Court declined consider the constitutional In question. Bolick v. American Barmag App. N.C. 284 S.E. 2d Corp., this confronted the Court constitutional issue stating: “G.S. 1-50(6), Sec. absolutely rights because it would abolish to seek I, injuries, redress on its face violates article 18.” section review, N.C. 284 S.E. 2d at the Supreme On Court, however, plaintiff declared that had no standing to issue, raise the declined constitutional to address it on the merits. Bolick v. American Barmag Corp., S.E. (1982). Therefore, 2d 415 the differing because constructions of I, Art. 18 adopted by in Lamb and Appeals Court, Bolick have not our Supreme been reconciled whether Assembly may General abolish common law cause of action Leach, still altogether unresolved. But see Osborn (1904) (court 47 S.E. indicated dicta that a statute recovery disallowing damages libel action would have violatеd courts” “open provision). injured by alleges in this case that she employee, act of action intentional cause *6 OF APPEALS
Pangburn v. Saad
505, 128
v.
S.E.
Bracey,
common law. Wirth
cognizable at
(1963). However,
in
appear
plaintiff
2d 810
it does not
fact
Houk,
remedy
wholly
injury.
without a
for her
See Stewart
denied,
P.
271 P.
reh’g
Or.
Or.
may modify
remedy,
procedure,
the form
(legislature
right).
Both par
the exercise of the
precedent
attach conditions
remedy
a
under
ties concede in their briefs that
Act,
143-291
Stat. Sec.
Tort
as codified at N.C. Gen.
State
Claims
(1983).
Act
cause of action
permits
Thе Tort
a
seq.
et
Claims
of a
out of the
acts
injuries arising
negligent
the State
against
acting
scope
within the
employee
while the
employee,
State
(1983). Recovery
for a claim
Sec.
employment. G.S.
$100,000.
However,
Id.
in
Act
is limited to
brought under
employees are not
intentionally
compen-
inflicted
State
juries
Comm’n, 271 N.C.
Highway
the Act. Davis v. State
sable under
405,
(1967). Therefore,
negli
defendant acted
156 S.E. 2d
lies under the Act.
we
that a claim
gently,
agree
immunity on those
If
Sec. 122-24
confers absolute
G.S.
can sue
injured person
that an
it becomes obvious
protects,
when
physician
physician
nor
a
neither
the State
the individual
mental
maliciously,
releasing
or in bad faith
corruptly,
acts
in-
legislature
of whether the
question
We
reach the
patient.
thus
of the im-
scope
within the
intentional
torts
tended to include
of the
Since we find no discussion
munity
the statute.
provided
statute, or
Sec. 122-24 codified in the
embodied
behind G.S.
policy
law,
authority
North
analogous
we look to
case
Carolina
Turning first to North Carolina
authority
jurisdictions.
from other
judicial interpreta-
analogy
authority,
compelling
we find
remedy
North
Work-
Carolina’s
provision
tion of the exсlusive
Act,
97-1 et
Stat. Sec.
as codified
N.C. Gen.
Compensation
ers’
Peters,
124, 284 S.E. 2d
In Andrews v.
seq.
(1982),
denied,
The in Andrews recently been expanded. Despite authority contrary to the statutory the lack an express and provision, our held Supreme Court that “the Workers’ Compensa- tion Act does not co-employee shield a from liability common law willful, Johnson, for wanton and reckless Pleasant v. negligence.” 325 S.E. N.C. The Court reasoned that “[i]t travesty would be a of justice logic and permit to a worker to in- conduct, jure a co-employee through such and then compel the in- jured co-employee accept moderate benefits under the Act.” Id. By its seeming grant of immunity, G.S. Sec. 122-24 (1981) unlike other North Carolina statutes of its genre. These other statutes generally grant a qualified, rather than an ab- solute, immunity, immunity and thus do not extend to situa- tions in which the otherwise protected person has acted bad faith, See, unreasonably, maliciоusly. or e.g., N.C. Gen. Stat. Sec. (1982) Act; 166A-14 (Emergency Management no for em- misconduct, ployee’s actions “except cases willful gross faith”); negligence bad N.C. Gen. Stat. Sec. 90-48.8 (members of dental peer review not committee liable actions if warranted); not malicious and reasonable belief action N.C. Gen. abuse); Stat. 7A-550 Sec. (persons child reporting Gen. 1983) Stat. Sec. 90-171.47(Supp. (persons reporting misconduct of nurses). (effec- 1983) Even Gen. Stat. Sec. 122-58.8A (Supp. 1984), tive 1 January newly-enacted statute providing immunity facilities, public to both private mental health and their staffs, commitment, for actions connected with outpatient grants immunity when facility, physicians and staff “follow ac- cepted professional judgment, practice in the and standards man- agement, supervision and treatment the respondent.” next
Turning jurisdictions, to the law of other we find that: OF APPEALS is generally recognized public
It officers and unduly employees hampered, would be deterred and intimi- duties, if those who im- discharge dated of their acted them, authority or even were properly, given exceeded the by being relieved degree some reasonable prоtected liability. Accordingly, from the rationale official private fearless, immunity vigorous, is the and effective promotion threat of suit policies government. administration competent people taking also deter office. could Public at 924-5 Employees 63A Am. Jur. 2d (1984), Officers Although cases therein cited. the modern trend has officials, id., public more more grant been *8 restriction on the in been a marked circumstances there has immunity is available. Davis v. Knud-Hansen which absolute See 1980). (3d F. judges Cir. While and Hospital, Memorial 2d immunity, historically 63A Am. enjoyed have legislators (6th 1972), 2d, F. 2d Pеrrigan, see Jones v. Cir. supra; Jur. and employees. has not true for state officials the same been strike a between courts must balance the rationale is that given or to employee perform state official particular to free the need defending vexation lawsuits without the or her functions right aggrieved the of an performance, against their arising from 2d, supra. 63A Am. Jur. to seek redress. party particularly are well- considerations general policy These (or a hospital) state against psychiatrist to state suited actions policy the vаrious patient. Significantly, for the release of a ordinary exclusively to ac- negligence apply reasons for tions; intentional to they grossly negligent have no relevance may be held hospitals state mental determining In whether acts. an Ohio Court dis- patients, for the release of negligent liable to pertinent are the liabil- which also policy considerations cussed ity physician: individual of the with the ex- hospitals are faced private public
Both balancing patient the interests task of tremely difficult release, the periodic permanent who would benefit returning in illness and society treating mental interest of life, normal, and the interests productive a patient ill off the mentally person dangerous, in society keeping treating analyzing inherent The uncertainties streets. OF APPEALS mind, the human let a person alone decision when ‘cured’ and no longer danger, renders the decisions of highly skilled doctors discretionary subject rebuke only for arbitrary the most flagrant, capricious, and abuse. State, Leverett v. Ohio 2d 399 N.E. 2d App. (Fla. State, In Bellavance v. So. 2d Dist. Ct. (Fla.
1980), denied, 1981), reh’g 399 So. a Florida court reasoned that аlthough State’s standards for releasing mental review, patients discretionary are and thus immune from the sub- sequent ministerial action of the itself release so pro- tected. The Court made the following policy analysis:
There is a vital public securing interest the earliest possible society release and subsequent return to of a person illness, with may afflicted mental and it well argued subject the State for the will . people have a . . chilling upon goal]. effect [that However, this potential chilling miti- significantly effect 768.28(9): by . gated . . Section officer, ‘No employee, or or its agent of subdivi- sions shall be held liable tort for a final personally judgment any him for been rendered act, injuries or damages suffered as a result event, or omission of action in of his scope employ- *9 function, officer, ment or unless such or employee, agent acted in had or with malicious or in a purpose man- faith exhibiting ner wanton human disregard willful safety, or rights, property.' Clearly, only is under a most exacting standard that State may employees subjected be to ultimate personal liability. We also doubt that the potential liability of the it- Statе self will be a inhibitor to the significant profes- exercise of Indeed, judgment by the personnel sional involved. some may inhibiting healthy, effect well be for it should not be forgotten employees State’s serve the needs of socie- ty whole well as the persons. as a as needs of individual Fur- ther, any remedy, other envisage we cannot than a tort suit [plaintiffs] to which can damages, for resort. APPEALS OF State,
Id.
424-5. See also
283 A.D.
George
St.
127 N.Y.S.
(doctors
147, aff’d,
2d
308 N.Y.
In both the Bellavance Leverett supra, the in- plicable statutes qualified trend, This with the physicians. appears dividual above, consonant noted immunity. limiting the extension of absolute See Pa. 1982) (Purdon Ann. im- (abolishing sovereign Stat. Cons. act, munity in- arising a bar an action out оf a negligent agency employees acts of “health care Commonwealth cluding .”). . . or The Ohio statute relied medical facilities institutions thereon, Leverett, commentary in and the court’s instructive: faith, good either ac- reasonably upon acting Persons reli- by them to be thought or information knowledge tual able, physically who assisted procedurally of a to this person pursuant or discharge hospitalization any within and are provisions, come criminal do not chapter, or to any liability hospitalized to the person free person. other 1977). The (Page 5122.34 Leverett Ann. Sec. Rev. Code
Ohio explained: Assembly practicing intended for doctors General
[T]he discharge for the free from hospitals mental faith. good reasonable and in discharge such patients necessarily implies intention Conversely, expressed an such time, when presumably at some be liable that doctors could unreasonably or in bad faith. they act 2d at 111. 399 N.E. 2d at 61 Ohio *10 Therefore, replete jurisdictions law from other case the immunity to state extending qualified justifications with research patient. Our for the psychiatrists APPEALS COURT OF shielding reason fоr the single cogent has failed disclose wrongdoer consequences or intentional grossly negligent 122-24 of his or her acts. We reiterate that G.S. Sec. is an immunity, anomaly among granting North Carolina statutes on the judicial placed further note that a limitation been immunity facially statutory under the Workers’ Act, per- G.S. Sec. 97-10.1 to achieve the Compensation An- legislative analogous ceived intent under circumstances. See Peters. We therefore conclude that Sec. 122-24was drews v. G.S. employees to create a for those state qualified intended It only оrdinary negligent to their acts. protects, extending not, however, a tortfeasor from protect personal does not, Sec. 122-24 and intentional torts. G.S. does gross negligence then, injured plaintiff cause of action and leave the abolish a in which remedy, without her but defines the circumstances statute, construed, will is thus constitu- relief be available. I,Art. courts” “open provision tional and does violate Section
V [4] for his dismissal, In conclusion, grossly negligent or intentional has stated a claim acts, it will withstand Dr. Saad statutory of G.S. protection it will fall outside the since follows: Complaint of the are as allegations The pertinent psychiatric under care since childhood has been Pangburn Daniel disorders and violent behavior history of emotional and has a members, family including attacks on has included Cherry committed to on at Hospital Daniel has been plaintiff. 1979, and defendant is aware of occasions since least seven history. mental and emotional On psychiatric, Daniel’s County Superior was filed Onslow February petition involuntary Pangburn. commitment of Daniel He for the suicidal, defendant, who him to be found examined was others, physical and to have threatened to himself dangerous others. Based on the recommendation family harm to March, Saad, involuntarily Daniel Pangburn Dr. of 26 Cherry days. morning for 90 On Hospital committed with defendant met Pangburn of Daniel parents March their son. The to release decision to defendant’s objected *11 Pangburns told Dr. they Saad that and their children were afraid to have Daniel in they the home and that wished to have him in a chronic placed care unit. Daniel Pangburn was released in the morning late of March and that same night he attacked sister, and stabbed his the plaintiff.
A will Complaint not be dismissed unless it appears that is not entitled to relief under state of facts that could presented support the claim. Andreson v. Eastern Realty Co., must, 298 S.E. App. 2d 764 Taking, as we true, id., allegations Complaint we are satisfied that “wilful, sufficiently plaintiffs Complaint charges both wanton or reckless” negligence intentional wrongdoing. We note that the Complaint specifically alleges that “the conduct and behavior defendants in that it failed to comply with the applicable standard care but also grossly negligent subject and wanton ... so аs to to punitive defendants Johnson; Pleasant v. damages.” See Braswell v. N.C. A T& (1969) (“Wantonness Univ., 1, 8, S.E. 2d . . . Therefore, connotes intentional wrongdoing.”). the trial court’s dismissing order the action for failure to state a claim which upon reversed, may be must be relief and the cause remanded for further proceedings.
Reversed and remanded. and Wells concur. Judges Arnold Wells Judge concurring.
I believe that this case should be decided rules of law under my officers applying public generally, being position that the immunity statute at issue in this case those rules as ap- codifies employed hospitals. at state plicable physicians authority acting officers within the of their are scope Public ordinary may but be held liable negligence, not answerable maliciously they corruptly. act wantonly acts with malice when he does that
A defendant
know to be con-
intelligence
a man of reasonable
would
or in-
duty
prejudicial
and which he intends to be
trary to his
. . . ‘An act is wanton when it is done of
to another.
jurious
COURT APPEALS
OF
C.N.
State Bar v. Sheffield
purpose,
wicked
or when
needlessly,
done
manifesting
reckless
indifference
. . .
rights
others.’
Kaasa,
In
re Grad
321 S.E.
2d 888
(quoting
*12
Sellars,
(1968)).
Givens v.
Plaintiff alleges that though aware of Daniel’s violent dangerous propensities family’s and aware of his fear him, “persisted releasing Daniel Olin Pangburn thus ex- hibited gross negligence and wanton conduct.” These allegations defendant, were sufficient to claim state a for relief against suffi- cient, at the to pleadings level overcome defendant’s immunity. Attorney SHEFFIELD, THE NORTH CAROLINA BAR STATE WILLIAM M. No. 8410NCSB477
(Filed 1985) 5 March — Attorneys disciplinary § proceedings proof 1. at Law 12— standard —stand- judicial ard of review attorney proof in discipline proceedings The standard of disbarment clear, evidence, cogent convincing judicial one of and the standard for such review of cases is whole record test. Attorneys attorney disciplinary § 2. proceeding at Law 12— sufficient —evidence support finding to attorney disciplinary hearing support to Thе evidence an was sufficient $1,804.40 Hearing finding paid from a trust ac- Committee’s defendant specified person private investigative count on his to a client’s behalf for serv- ices in connection with a criminal trial. Attorneys attorney keep § disciplinary hearing at Law 12— records —failure — support finding sufficient evidence attorney hearing disciplinary support The evidence an was sufficient keep Hearing finding that defendant did not records from Committee’s any could one time what amount in trust account he determine running belonged particular client and that he did not maintain proceeds grievance against filed a him. balance of due the client who