ROBERTS v. GRIGSBY et al.
No. 70247
Court of Appeals of Georgia
DECIDED DECEMBER 3, 1985
REHEARING DENIED DECEMBER 20, 1985
177 Ga. App. 377 | 339 SE2d 633
BANKE, Chief Judge.
Robert E. Keller, District Attorney, David C. Marshall, Assistant District Attorney, for appellee.
(339 SE2d 633)
BANKE, Chief Judge.
On December 12, 1979, Otis Reed, Jr., was charged with 2 counts of aggravated assault after he stabbed another individual several times and then attempted to kill a police officer called to the scene of the stabbing. He was adjudicated not guilty by reason of insanity at the time of the assaults and was involuntarily committed at Central State Hospital in Milledgeville, Georgia, from January 17, 1980, until September 12, 1980, when he was transferred to West Georgia Regional Hospital in Columbus, Georgia.
On December 17, 1980, Donald P. Grigsby, Ph.D., Chief of the Psychological Section and the Forensic Services at West Georgia Regional Hospital, recommended that Reed be discharged, stating that he found Reed to be free of mental disorder, posing no danger to himself or others, and able to care for himself. Although initially opposed to the release of Reed, the district attorney eventually acquiesced in the discharge. On March 11, 1981, the superior court accepted Grigsby‘s recommendation and ordered Reed‘s release.
Following his release, Reed attended one session at a mental health outpatient clinic, at which time he indicated that he felt no need for medication or other services. On February 24, 1982, more than 11 months after his release, Reed‘s sister and mother contacted Carl Dunlap, a social worker with the adult mental health clinic operated by the Columbus-Muscogee County Health Department, and requested treatment for Reed, reporting that his behavior once again had become aberrant. Reed‘s sister and mother further reported that
The appellant, Roberts’ widow, subsequently commenced this action against Dr. Grigsby, Dr. Sadi Oguz (a staff psychiatrist at West Georgia Regional Hospital), Dunlap, Paul Crofford (a mental retardation service coordinator with the adult mental health clinic at the Columbus-Muscogee County Health Department), and several other employees of West Georgia Regional Hospital, alleging that they had been negligent in treating Reed, in recommending his release from involuntary commitment, and in failing to monitor him on a regular basis following his release. This appeal is from the trial court‘s grant of summary judgment to all the defendants. Held:
1. Each of the defendants must be considered immune from liability pursuant to the Supreme Court‘s decision in Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), wherein it was held that, in the absence of a lawful waiver of such immunity or a showing of wilful, wanton, or malicious misconduct, governmental officers or agents are exempt from liability for actions undertaken in their official capacity and within the scope of their official duties. This court‘s recent decision in Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985) (cert. den.), is neither in conflict with Hennessy nor authority for a contrary ruling in the present case. There, we held that the Hennessy doctrine does not insulate physicians employed by public clinics from liability to their patients for professional malpractice. The defendants in the present case are not sought to be held liable for the death or injury of a patient resulting from the provision of negligent medical care. Rather, they are charged with the breach of an alleged duty owed to the public in general, arising from the performance of official governmental functions respecting the confinement of individuals who present a substantial risk of imminent harm to themselves or others. See generally
2. With respect to the West Georgia Regional defendants, at least, the statutory immunity provided by
3. In ruling that the defendants are protected from liability by the doctrine of governmental immunity, we express no opinion as to whether a fact issue would otherwise exist with respect to the merits of the appellant‘s claim.
Judgment affirmed. McMurray, P. J., Sognier, Pope and Benham, JJ., concur. Pope, J., also concurs specially. Deen, P. J., Birdsong, P. J., and Beasley, J., concur specially. Carley, J., concurs in Divisions 1 and 3 and in the judgment.
DEEN, Presiding Judge, concurring specially.
1. While agreeing with the majority opinion‘s conclusion that all the defendants in this case are shielded from liability by the general doctrine of governmental immunity under Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), I believe that this court‘s recent decision in Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985), represents an obstacle that must first be hurdled or eliminated. In Jackson v. Miller, this court held that the defense of governmental immunity is not available to a state-employed physician who has been sued individually in a wrongful death action over the alleged negligent treatment of the plaintiff‘s child at the state facility. In so holding, this court emphasized (1) that the defendant doctor had not acted in an administrative matter; (2) that the doctor‘s alleged negligent treatment of the child could not “reasonably be considered that of an agent of the government acting in his official capacity“; and (3) that the doctor‘s primary duty was a private one to his patient rather than a public one to the state. Id. at 220-221. That analysis results in an impermissible limitation of the Supreme Court‘s rule delineated in Hennessy v. Webb, supra, and I believe that Jackson v. Miller must be overruled.
Hennessy v. Webb makes available the defense of governmental immunity to a public employee, even though he is sued individually, for discretionary acts within his official capacity, unless the public employee acted wilfully, wantonly, or beyond the scope of his author-
The primary duty of a state-employed physician is always public, because the physician acts for the state, and this court cannot ignore that legal relationship in characterizing the physician‘s duty. Under Hennessy v. Webb, a state physician‘s personal liability for discretionary acts may result from a breach of that public duty, i.e., an act that is wilful, wanton, or beyond the scope of his authority; it is not because the physician‘s primary duty is owed to whichever patient he may treat, as held in Jackson v. Miller, supra. It follows that, contrary to the holding in Jackson v. Miller, the defense of governmental immunity is available to state physicians even in malpractice actions, absent a breach of that public duty. Since Jackson v. Miller ignores the proper analysis for determining the availability of this defense, it should be overruled.
In the instant case, all four defendants clearly were protected by governmental immunity. The decisions involved with the plan of treatment for and the release of Reed certainly were acts of discretion, within the scope of the defendants’ official capacities and authority, and were obviously not wilful or wanton. The trial court correctly granted summary judgment for the defendants.
2. In any event, the uncontradicted evidence demanded a finding that none of the defendants had been negligent.
An application for release of the committed person may be filed by either the person himself or the superintendent of the institution in which the person is confined.
The validity of the appellant‘s asserted cause of action strictly depended upon Reed‘s having been released at a time when he still met the criteria for civil commitment. The evidence of record in this case strongly demonstrated that Reed in fact no longer presented a substantial risk of imminent harm to himself or others at the time of his recommended release from West Georgia Regional Hospital. In the course of his 6-month commitment at the hospital, during which he was observed on a daily basis, Reed had not manifested any acts or threats of violence. For the last 4 months of his confinement, medications were unnecessary to stabilize any psychosis. A thorough regimen of tests consistently produced negative results for active mental illness. Reed‘s mother acknowledged that at the time of Reed‘s release, his behavior was good and remained so for the next 5 or 6 months. That Reed presented no risk of imminent harm at the time of his release was further demonstrated by the fact that for almost 11 months, he lived a quiet and peaceful life.
The appellant‘s expert witness attempted to rebut the defendant‘s evidence by contending that Reed‘s present dangerousness was shown by his psychiatric history and criminal record of “decomposition from accepted behavior following prior releases from psychiatric hospitals.” However, that indefinite possibility of a recurrence of psychosis at some unknown point in the future did not refute the uncontroverted evidence that Reed no longer met the civil commitment criteria requiring a substantial risk of imminent harm; that information alone provided an insufficient basis for reasonably anticipating immi-
The appellant also contends that the defendants associated with West Georgia Regional Hospital were negligent in not recommending that Reed‘s release be conditioned upon his seeking continued treatment on an out-patient basis at the adult mental health clinic, and that Paul Crofford with the mental health clinic was negligent in not coordinating out-patient treatment for Reed following the latter‘s release. There was no legal authority, however, by which such a conditional release could be ordered. The current
In any event, it was undisputed that the defendants at West Georgia Regional Hospital did recommend continued psychiatric treatment for Reed as an out-patient at the mental health clinic, and a referral and initial appointment for this service actually were made at the time of Reed‘s release. Reed refused that service after that one appointment, and the defendants were without authority following Reed‘s release to force such out-patient treatment upon him.
In summary, the evidence of record demanded the finding that Reed no longer met the criteria for civil commitment at the time of his release; ipso facto, the recommendation of the West Georgia Regional defendants that Reed be released (as well as the precedent treatment of Reed) could not be held negligent. Similarly, insofar as no legal authority existed for mandatory out-patient treatment as a condition of Reed‘s release, the failure to recommend or coordinate such could not constitute negligence. Accordingly, summary judgment for the West Georgia Regional defendants (and Crofford) was appropriate.
Additionally, it must be emphasized that the ultimate decision to release Reed was that of the superior court, and not that of the staff of West Georgia Regional Hospital.
I am authorized to state that Presiding Judge Birdsong joins in this special concurrence.
POPE, Judge, concurring specially.
I concur in our decision here that summary judgment for the four defendants was appropriate under the doctrine of sovereign immunity. I offer the following remarks, however, in response to the special concurrences of my brethren.
1. The issue pretermitted by our decision in this case is whether state and county employees of mental health facilities have a legal duty to control the conduct of a former patient to prevent him from causing physical harm to others. Appellant alleges that defendants Grigsby and Oguz (hereinafter “hospital defendants“) were negligent in their recommendation to release Reed from involuntary commitment. In addition, appellant alleges that defendants Dunlap and Crofford (hereinafter “clinic defendants“) were negligent in failing to keep Reed on an outpatient basis. The Supreme Court addressed a similar issue in 1982 in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982), in which a cause of action was allowed against a private mental hospital and its staff for failure to warn the victim of one of its patients. In Bradley Center, the appellant mental health hospital was held civilly liable for the murder of appellees’ mother by their father, a patient at appellant‘s facility. The hospital had given appellees’ father an unrestricted weekend pass after he had indicated that if given the opportunity, he would hurt his wife. The Supreme Court invoked an exception to the general rule that there is no legal duty to control the conduct of third persons to prevent them from causing physical harm to others. According to the court, “where the course of treatment of a mental patient involves an exercise of ‘control’ over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.” 250 Ga. at 201, citing Bradley Center v. Wessner, 161 Ga. App. 576, 581 (287 SE2d 716) (1982). By holding the hospital liable, the Supreme Court stated it was not creating a new tort but rather applying “traditional tort principles of negligence.” 250 Ga. at 202.
The holding in Bradley Center parallels cases in other jurisdictions that have imposed liability on psychotherapists for failing to use reasonable care to give threatened persons warnings sufficient to avert
The decisions in Bradley Center, Tarasoff and McIntosh all base liability on the aspect of the foreseeability of the harm to third persons or the harm to the mental patient himself. The Bradley Center rule, however, goes one step further. The plaintiff must establish foreseeability of the harm and the defendant‘s ability to control the actions of the patient. Although the Supreme Court has thus recognized a cause of action against mental health facilities in circumstances similar to the facts at bar, I find that appellant has not established the foreseeability or control necessary to prevail in the case at bar under the Bradley Center rule.
Hospital defendants, Grigsby and Oguz, were governed by
In addition, clinic defendants Crofford and Dunlap had no reason to know that Reed was likely to cause bodily harm. Crofford met with Reed during Reed‘s first visit at the clinic. Reed told Crofford that he was fine and did not need the clinic‘s services. Such a statement along with knowledge of the court‘s release of Reed from involuntary commitment, does not reveal that Crofford did know or should have known about Reed‘s substantial risk of harm to others. Dunlap had only one contact concerning Reed. Reed‘s sister and mother contacted Dunlap the day prior to the shooting. Reed‘s relatives informed Dunlap that Reed had not harmed or threatened anyone but had bought a gun which the pawnshop was taking back. Based on that information and no evidence to show that Dunlap should have been familiar with Reed‘s case, Dunlap had no reason to know, nor should he have known, that Reed was likely to cause bodily harm.
The second element of the Bradley Center rule — control — also cannot be found from the facts at bar. In Bradley Center the hospital was held to have control because it allowed the patient an unrestricted weekend pass during which time the murder was committed. In this case, however, the hospital and clinic defendants did not have the ability to control Reed at the time of the murder. Reed had not been a patient at either the hospital or the clinic for several months. Therefore, since (1) it was not foreseeable that Reed was likely to cause harm, and (2) defendants did not have the ability to control Reed, the rule in Bradley Center does not apply.
2. According to my brethren,
A form of conditional release, analogous to parole of convicted persons, is featured in nearly one-half of state criminal commitment statutes. See Note, “Commitment & Release of Persons Found Not Guilty By Reason of Insanity: A Georgia Perspective,” 15 Ga. L. Rev. 1065, 1101 n. 221 (1981). Under a conditional release order, the superior court could release the patient on conditions the court deems necessary. If the conditions are not fulfilled, the court can order recommitment. Such conditions could include discharge of the patient to the custody of the family, outpatient care and periodic check-ups. See, e.g.,
A type of conditional release was proposed by the Mental Health Committee of the Georgia State Bar Association in 1980 in a draft of an amendment to then
I believe that a superior court has the power to order a conditional release even without a statutory amendment. Because the court possesses such power, there exists an issue for the jury as to whether the hospital defendants were negligent in not fully informing the court of Reed‘s condition. The record shows that the hospital defendants did find that Reed no longer met the civil commitment criteria. However, the record also reveals that Reed was referred to the Adult Mental Health Clinic for further therapy. According to defendant Oguz, patients are routinely referred to the health clinic if they need a “follow-up.” In addition, defendant Oguz stated that had he known Reed would decline follow-up treatment, he might have changed his decision to release him. Had the hospital defendants informed the court that they believed Reed needed outpatient therapy, the court might have conditioned his release or not released him at all. Since the clinic defendants were not involved in recommending Reed‘s release, they had no duty to inform the court and therefore summary judgment in their favor should be affirmed.
I concur in the judgment but arrive by a different route.
I agree that the social workers and Dr. Oguz were immune from suit, but for the reasons explained below. As to Dr. Grigsby, the unquestionable application of another principle precludes liability, without a decision about sovereign or statutory immunity.
The crimes which led to institutional confinement in this case were committed on December 12, 1979. The trial at which Reed was found not guilty by reason of insanity at the time of the commission of the acts was on or about January 17, 1980. He was committed by virtue of being an insanity-acquitee rather than pursuant to the mental health code. The release from the institution occurred by order of the superior court filed March 11, 1981. The killing complained of in this civil suit occurred on February 25, 1982.
1. Dr. Grigsby cannot be held liable. He was a clinical psychologist and Chief of Forensic Services at West Central Georgia Regional Hospital when he wrote to the court on February 11, 1981. His letter was prompted by the federal court order in Benham v. Edwards, 501 FSupp. 1050 (N.D. Ga. 1980).1 He simply stated the conclusion that “it is our professional opinion that [Reed] presently does not meet the criteria for civil commitment under Ga. Code Chapter 88-5.” At the time,
The court did not follow the procedure required by that statute governing the release of persons confined as a result of judgments of not guilty by reason of insanity at the time of the offense. As it was then in effect, see Ga. Laws 1977, pp. 1293, 1295 § 2, it required a hearing.2 Not only that, hearing and release were not authorized except upon application of the person committed or “the superintendent of the State hospital in which such person is confined.” Brooks Cagle, and not Dr. Grigsby, was superintendent.
That aside, Grigsby only set in motion the consideration of whether Reed should be further confined, in obedience to a federal court order. As a matter of law, such action cannot constitute negligence, much less wilful, wanton misconduct or bad faith.
This pretermits the question whether Grigsby was immune from suit by way of the legislative grace provided in
Also pretermitted is whether the psychologist immunity would attach because the suit was not brought until 1983 and the cause of action did not arise until the pastor‘s death in February 1982, after the July 1981 effective date of the amendment.
Finally, not reached is the question of whether the statutory immunity for persons involved in the admission and discharge of mentally ill persons to and from a mental health facility provided by
The release was not bottomed on anything that Oguz, or Crofford or Dunlap who only acted after the order, said or did, so there can be no liability of any of them based thereon.
2. The laws in effect at the times of concern here, i.e., when the crimes were committed, verdict returned, commitment ordered, and release subsequently ordered, were not the laws now extant. As to the verdict and procedures provided for, Ga. Laws 1977, pp. 1295-1302 applied. No change was made in that law, which added a new Code §
At all times relevant here, then,
The statute speaks clearly and exclusively of confinement, in a hospital, and release therefrom. The civil commitment statute, which gives the criteria to be applied by the superior court in these criminal cases, does provide for treatment in “facilities” other than hospitals, and for individualized service plans which are developed for care and treatment in the “least restrictive environment.” Thus, for the person involuntarily civilly committed, these “least restrictive alternatives” are available and may be considered by the civil commitment court. But facility is not the same thing as hospital. The Code defines “Facility” to mean “any State-owned or State-operated hospital or other facility utilized for the diagnosis, care, treatment, or hospitalization of persons who are mentally ill, any facility operated or utilized for such purpose by the United States Veterans Administration or other federal agency, and any other hospital or facility within the State of Georgia approved for such purpose by the department.”
3. Finally, I would not extend Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982), as the special concurrence urges, to give rise to a legal duty flowing from defendants to appellant‘s decedent here. The pastor, who voluntarily and at the request of his parishioners undertook to visit the mentally disturbed Reed some eleven months after his release from the mental hospital, was a remote person insofar as Reed was concerned. He was not a “readily identifiable” victim whom the defendants should have known might be harmed by Reed and so should have warned. If it is argued that they should have warned Reed‘s family, of their own and others’ danger, the family already knew of it and in fact were even more familiar with Reed‘s propensities when free, and in fact complained about it after his release. Not only was there no readily identifiable victim, the evidence is undisputed that there were no “specific threats to specific victims.” Brady v. Hopper, 570 FSupp. 1333, 1339 (N. Colo. 1983).
Appellant has not shown what legal duty of care was owed by the two social workers towards her husband or to the general public at large, arising out of their solitary encounters with Reed or with his mother and/or sister. Even if they were not immune from civil liability by way of
Appellant‘s real complaint is with the standards for commitment and release from confinement of persons found not guilty by reason of insanity, as those standards existed during the period in question. Despite any history of violent behavior prior to his hospitalization after the acquittal and its relationship to the predictability of future dangerousness, these are irrelevant because to continue commitment, recent overt acts or threats must have been manifested. None were.
Grigsby cannot be held liable because, even if not totally immune due to governmental immunity to begin with, or even if not immune because there are no facts upon which a jury could find wilful, malicious, or corrupt actions, he merely fulfilled a duty to report to the court the condition of Reed vis-a-vis his commitment status in accordance with the standard imposed by law in light of the federal court order. Grigsby‘s duty, if he had one, to the general public at large or to the pastor in particular was superseded by the superior court order; the release was not upon the independent judgment of Grigsby or the hospital authorities, but upon the judgment of the court.
If all of the acts alleged by plaintiff were admitted, there would still be no liability for release because none of them would have prevented Reed‘s right to release for being outside the definition of a commitable person,
Even if the jury accepts as true everything that Dr. Brown testified to, there would be no liability. Dr. Brown‘s opinion is that what defendants did and failed to do constituted wilful and wanton disregard of the consequences, and that if they had acted within the standard of care required in the medical community generally (Dr. Brown
4. It is unnecessary, then, to discuss the question of proximate cause, the third element of tort, since the record establishes that plaintiffs cannot reach this stage of the development of their complaint.
On a motion for summary judgment, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided . . . must set forth specific facts showing that there is a genuine issue for trial.” (Emphasis supplied.)
DECIDED DECEMBER 20, 1985
G. Michael Agnew, for appellant.
Harry Dicus, John W. Denney, Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, H. Perry Michael, First Assistant Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.
BEASLEY, Judge.