TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETADATION, Petitioners,
v.
Opal PETTY, By and Through her Next Friends, and Linda KAUFFMAN and Herbert Clinton Denson, as Next Friends of Opal Petty, Respondents.
Supreme Court of Texas.
*681 Toni Hunter, Dan Morales, Austin, for petitioners.
James C. Harrington, Deborah C. Hiser, Austin, for respondents.
OPINION
GAMMAGE, Justice.
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.
FACTS
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 ioo mai sue was turiougneu to a losier 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. 101.023(a), and denied Ms. Petty's request for prejudgment interest. The court of appeals affirmed the judgment.
SOVEREIGN IMMUNITY
The central issue in this appeal is whether the Department's actions are encompassed within the limited waiver of sovereign *682 immunity contamea in tne lexas 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,
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.,
[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,
Here, the jury explicitly found that Ms. Petty was injured by negligence in the use or misuse of property. Jury Question 2 inquired whether "[fjrom 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]
*683 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 samefor 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, to amend the Tort Claims Act if we had erred in our interpretation. Salcedo,
FALSE IMPRISONMENT vs. NEGLIGENT CARE
The Department also contends that because Ms. Petty's cause of action amounts to no more than a claim of false imprisonment, she is barred from recovery under the Tort Claims Act. See Tex.Civ. Prac. 101.057(2) (Vernon 1986 & Supp.1992) (excluding intentional tortsincluding false imprisonment from statutory waiver of sovereign immunity). The elements of false imprisonment are (1) willful detention, (2) without consent, and (3) without authority of law. Sears, Roebuck & Co. v. Castillo,
This case is not about false imprisonment. This case concerns the proper level of care a state hospital must employ when diagnosing and caring for its patients during commitment. Other courts have also recognized this distinction.[6]*685 The jury found that the Department was negligent in its diagnosis and treatment of Ms. Petty. Their findings focused on, and the trial court's judgment was based upon, the poverty of her environment, relating specifically to the use and misuse of various diagnostic tools and treatment plans instrumental in causing her harm. That Ms. Petty suffered this harm in the context of her confinement does not operate to make her claim simply and exclusively one of false imprisonment. She was not sentenced to be incarcerated for a term of yearsshe was committed for treatment. The purpose of involuntary commitment is to provide appropriate therapy, where possible, to restore a productive and normal citizen to the larger community of society, not to remove them from the larger community as punishment. See Rouse v. Cameron,
CONCLUSION
Under these facts, we hold that the Tort Claims Act does not preclude recovery for injuries resulting from the negligent use of tangible property and affirm the judgment of the court of appeals.
COOK, J., concurs in the judgment only.
Dissenting opinion by CORNYN, J, joined by PHILLIPS, C.J., and GONZALEZ and HECHT, JJ.
CORNYN, Justice, dissenting.
Today, a majority of this court agrees only on the judgment to be rendered in this case. The four justices joining the plurality opinion have articulated their reasons; the concurring justice agrees only that Opal Petty should prevail, but does not favor this courtor the lower courts and the bar, who rightly look to this court for an explication of Texas lawwith a statement of the principles by which the legal issues raised here should be decided.[1] The result is that no opinion speaks for the court. The important issue upon which the court granted the State's application for writ of error and upon which other cases[2] long pending in this court turn, remains unresolved; the judgment of the court of appeals is affirmed by default. Opal Petty has won her case, but the people of Texas have been disserved. Because I agree with neither the reasoning of the plurality opinion nor the inconclusive result reached by a majority of the court on an issue important to Texas jurisprudence, I dissent.
Under the common law doctrine of sovereign immunity, the state cannot be held liable for the torts of its employees in the absence of a constitutional or statutory exception. Lowe v. Texas Tech Univ., 540 *686 S.W.2d 297, 298 (Tex.1976); Texas Highway Dept. v. Weber,
In 1967 the Texas House of Representatives passed a tort claims bill that waived sovereign immunity completely. Under that bill, the state could be sued as any other litigant in our courts.[3] H.J. of Tex., 60th Leg., R.S. 1271 (1967) (H.B. 728, §§ 3, 4). However, the bill died in the Senate Committee on Jurisprudence on a tie vote. Joe R. Greenhill & Thomas v. Murto III, Governmental Immunity, 49 Tex.L.Rev. 462, 467 (1971). Subsequently, interim study committees of both houses were commissioned to reconsider the subject. See Senate Interim Committee to Study Governmental Immunity, Report to the 61st Legislature (1969) (in response to S.R. 733, 61st Leg., R.S. (1967)); House Interim Committee to Study Doctrine of Sovereign Immunity, Report of the House Interim Committee to Study Doctrine of Sovereign Immunity 1969 (in response to Tex.H.S.R. 396, 60th Leg., R.S. (1967)).
Initially, the 61st Texas Legislature rejected the work of the interim committees and passed a tort claims act that either abolished or restricted sovereign immunity in most circumstances. Robinson v. Central Tex. MHMR Center,
Individuals should not be required to absorb the total loss when it should be and can properly be spread over the community as a whole.... The ability to distribute the loss throughout the governmental unit involved is [much] greater than the power ot business entities to do the same with respect to insured losses or losses caused to private citizens.
Joe R. Greenhill, Should Governmental Immunity for Torts be Re-examined, and, If So, by Whom? 31 Tex.Bar.J. 1036, 1068 (1968) (quoting comments of W. James Kronzer, Jr.). The House Committee concurred: "It is difficult to argue that a `unit of government,' what with its taxing power, is not better able to distribute the loss than private entities or persons." House Report at 10. However, Governor Preston Smith vetoed the bill, noting that while "the time has arrived when the doctrine of absolute governmental immunity must be reconsidered ... [the vetoed bill], however, is so broad and all-encompassing in scope as to impose upon the taxpayers of the State of Texas an onerous burden." Veto Message of Gov. Smith, Tex.H.B. 117, H.J. of Tex., 61st Leg., R.S. 1621 (1969).
The legislature promptly rewrote the bill to make it acceptable to the Governor. The bill was passed, and became law on May 22, 1969. Tort Claims Act, 61st Leg, R.S, ch. 292, 1969 Tex.Gen.Laws 874 (codified at Tex.Rev.Civ.Stat.Ann. art 6252-19); Greenhill & Murto, supra page 3, at 467-68.
The Tort Claims Act, thus forged by political compromise in the halls of the capitol, waived the doctrine of sovereign immunity only under limited circumstances. Tort Claims Act, 61st Leg, R.S, ch. 292, § 4, 1969 Tex.Gen.Laws 874, 875; Robinson,
personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor driven equipment ... or death or personal injuries so caused from some condition or use of tangible property, real or personal....
*687 Id. § 3.[4]
Since 1969, the Tort Claims Act has been amended three times: once to waive sovereign immunity for property damage proximately caused by a state officer or employee arising from the operation or use of a motor-driven vehicle or motor-driven equipment; [5] once to raise the liability limits;[6] and once to codify the Tort Claims Act into the Civil Practices and Remedies Code.[7] The limited waiver of sovereign immunity for "personal injury and death so caused by a condition or use of tangible personal or real property" has remained a constant. Tex.Civ.Prac. 101.021(2).
Although this court has the power to abolish the common law doctrine of sovereign immunity, we have, prudently I think, invariably held that the decision to waive that immunity and impose the attendant financial responsibility on the taxpayers of Texas is a matter properly committed to the legislature. Hopkins v. Spring Indep. Sch. Dist,
Since the passage of the Tort Claims Act, we have considered the scope of the statutory waiver of governmental immunity for the use of tangible personal property on four previous occasions. See McGuire v. Overton Memorial Hosp.,
The plurality, as did the court of appeals below, relies almost exclusively on Salcedo v. El Paso Hospital District to support its interpretation of the Tort Claims Act that tangible property need not itself be a proximate cause of injury, but only be involved or included in any negligent act or omission found to be a cause of damages. In Salcedo, the court determined that the plaintiff had stated a cause of action under the Tort Claims Act when a government physician allegedly misread an electrocardiogram graph. Relying heavily on legislative silence, which the court interpreted as acquiescence, the court held that "an allegation of defective or inadequate tangible property is not necessary to state a cause of action ... if `some use' of the property, rather than `some condition' of the property *688 is alleged to be a contributing factor to the injury."[8] I agree that there is no principled distinction between Ms. Petty's treatment records and the graph in Salcedo, but as in the case of all medical records, the purpose of an electrocardiogram graph is to convey information to a physician, who then uses professional judgment to make treatment decisions. In both cases, the physical property, the record or writing, does not itself cause the injury, but may be evidence of a failure to meet a standard of professional care. The plurality would sanction an identification of virtually any physical object, no matter how remotely related to the cause of harm, to bring such a claim within the waiver. While apparently motivated by the understandable concern that no one injured by the state's negligence go uncompensated, this would result in the exception swallowing the rule whole.
In Salcedo I believe we incorrectly blurred any distinction between tangible property that is itself the instrument of harm and property such as writings or records, which are part of a setting in which harm occurs and which merely memorialize information and ideas.[9] We also erroneously eliminated the use of tangible property from the analysis of proximate cause, and by so doing left the state open to suit for virtually any activity. What Chief Justice Greenhill predicted in his concurring opinion in Lowe would become the law under the plurality's rationale:
This construction would amount to a general waiver in virtually all tort cases. That is not necessarily bad, but I do not think this is what the Legislature intended. It is difficult to imagine a tort case which does not involve the use or nonuse, of some item of real or personal property; and to me, if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity.
At least the court of appeals in this case, unlike the plurality, was forthcoming in acknowledging the difficulties raised by application of the Tort Claims Act.[10] The difficulties are highlighted in part by the patently inconsistent results reached by other courts on this issue. For example, one court has held that a protective order is not tangible personal property because it merely recorded the court's decision. Robinson v. City of San Antonio,
There are few matters more deeply troubling to a judge of a court of last resort than how to contend with precedent she believes to have been incorrectly decided. On the one hand, the law must have stability and predictability so that people may order their conduct and affairs with some rationality. On the other hand, the judge must consider the harm of compounding error by reflexively applying a clearly erroneous decision, particularly one which interprets a legislative enactment so farreaching as the Texas Tort Claims Act. The Salcedo decision is less than a decade old, was decided by a unanimous court, and has not been legislatively modified. Yet it has spawned a surfeit of conflicting decisions in the courts of appeals, has left the state of the law in doubt, and has undermined the legislature's policy of limiting the state's liability for at least some negligent conduct. And because today's opinion is only that of a plurality, none of these issues are settled. No court, no advocate, and no litigant can justly claim the plurality opinion as precedent for any other case. While I can respect honest disagreement over difficult legal questions, our failure to decide the issue presented is a disservice to similarly situated litigants, an egregious waste of taxpayers' money, and a squandering of judicial resources.
I would reverse the judgment of the court of appeals.
PHILLIPS, C.J, and GONZALEZ and HECHT, JJ., join in this dissent.
NOTES
[1] Specifically, Ms. Petty alleged that the state defendants "wholly failed in their duty to provide appropriate care and services," subjected her to "continuing lack of minimally adequate treatment, training and habilitation," "denied [her] the ability to learn the basic skills necessary to function independently," and made no attempts to "restore her to a useful life in society." As a consequence, Ms. Petty alleged that the defendants had "prevented [her] from realizing her developmental potential and thus proximately caused her serious adverse functional development" and caused her to suffer "serious and aggravated on-going regression in intellectual and daily living skills, and lost opportunities to develop those skills which she otherwise would have developed but for her confinement and which [were] necessary to live outside of an institution without supervision."
[2] If immunity is determined to be waived, the Department alternatively contends that the jury question was improper because it failed to delineate the particular employee and the particular conduct found by the jury to be negligent. Such a notion contradicts this court's mandate of jury submission upon broad-form questions. Tex.R.Civ.P. 277; Texas Dep't of Human Services v. E.B.,
[3] See Department's Application for Writ of Error at 23-24 n. 6 ("mental status exams" are 848S.W.2d16 interviews; "Progress notes are nothing more than the recorded observations of the various personnel in a hospital or state school.").
[4] See Department's Application for Writ of Error at 23-24 n. 6 (recognizing tests are used to make treatment decisions), at 29 (documentation used to determine care), and at 30 (tests used to determine availability for services).
[5] In 1983, the Legislature amended the Act to alter the definition of "state government" as well as to increase the limitations of liability. Acts 1983, ch. 530, § 1, 1983 Tex.Sess.Law Serv. 3084, 3084-85 (Vernon). The Act was subsequently repealed and reenacted in reorganized form as part of the Texas Civil Practice and Remedies Code. Acts 1985, ch. 959, §§ 1, 9, 1985 Tex.Sess.Law Serv. 3242, 3303, 3322 (Vernon). The language now contained in Section 101.021(2) of the Act remained unchanged.
[6] See, e.g., O'Neil v. State,
Notes
[1] A coherent majority rationale is particularly important in the American legal system, which has traditionally placed special emphasis on the reasoning underlying a particular decision to determine its precedential value. A statement of the Court's reasoning helps to shape the conduct and decisions of the bench, bar, and the general public.... Moreover, articulation of the legal principles underlying a particular decision, and adherence to those principles in subsequent cases, serves as a check on judicial bias and arbitrariness. Our system's emphasis on reasoning suggests that the objectives of the precedential system certainty, reliance, equality, and efficiency are ultimately best served not by blind adherence to particular judgments deemed to be "controlling," but by the orderly development of well-reasoned legal principles that build logically upon each other and can survive testing over time and in a variety of situations.
Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Co lum.L.Rev. 756, 757-8 (1987) (footnotes omitted).
[2] See e.g., University of Tex. Medical Branch v. York,
[3] Previous proposals for a tort claims act were introduced, without success, in 1953, 1957, 1959, 1961. Senate Interim Committee to Study Governmental Immunity, Report to the 61st Legislature 6 (1969).
[4] The Tort Claims Act excluded property damage apparently because of the legislature's concern for the financial burden of insurance premiums that would be required to cover such damages. House Report at 13-14; Greenhill & Murto, supra page 3, at 468-69.
[5] Act of April 11, 1973, 63rd Leg., R.S., ch. 50, 1973 Tex.Gen.Laws 77.
[6] Act of May 28, 1983, 68th Leg., R.S., ch. 530, 1983 Tex.Gen.Laws 3084. This act raised the liability of the state government "to $250,000 per person and $500,000 for any single occurrence for bodily injury or death and to $100,000 for any single occurrence for injury to or destruction of property." Id. at § 1.
[7] Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3302. This act inexplicably changed the conjunction between the motor-driven vehicle portion of the statute and the tangible real and personal property portion of the statute from an "or" to an "and." One court has properly construed the "and" to mean "or." Bryant v. Metropolitan Transit Auth.,
[8] But see, Sanchez v. Schindler,
[9] Notwithstanding Salcedo, the majority of our courts of appeals have held that writings are not tangible personal property under the Tort Claims Act. See e.g. Jefferson County v. Sterk,
[10] "We are aware that the cryptic language of § 101.021 has resulted in conflicting opinions in the courts of appeal regarding what constitutes tangible property...."
[11] Among those cases which the plurality should address and distinguish are: Mitcham v. University of Tex. Medical Branch,