Armendarez v. Tarrant County Hospital District

781 S.W.2d 301, 1989 WL 158095

• Court: Court of Appeals of Texas
• Decided: December 13, 1989
• Docket: 2-88-075-CV
• Status: Published

Opinions

OPINION

HILL, Justice.

Richard and Rachel Armendarez, individually and as next friend of their son Allen, appeal from a summary judgment that they take nothing in their medical malpractice action brought against the Tarrant County Hospital District and Drs. Robin Schlaudt, Arthur Garcia, and Anna Lozano as a result of the defendants’ alleged negligence in connection with Allen’s birth. In twelve points of error, the Armendarezes contend that governmental immunity, one of the doctrines relied upon by the defendants in their motions for summary judgment, was waived because the alleged negligent actions of the defendants involved the use of tangible personal property, which would create a waiver of the doctrine under the provisions of TEX.CIV.PRAC. & REM.CODE ANN. sec. 101.021 (Vernon 1986); that the defendant doctors are not protected by governmental or official immunity; that governmental immunity violates good public policy and should be abolished; and that the granting of such immunity, or the limitation of liability based upon such immunity, violates the Equal Protection, Due Process, and the Privileges and Immunities Clauses of the United States Constitution and article I, sections 3, 3a, 13, and 19 of the Texas Constitution.

We reverse and remand for trial, because we find that the trial court erred in granting summary judgment in favor of the Hospital District, since the summary judgment evidence raises a fact issue as to whether Allen’s injury was negligently caused by the use of tangible personal property, a vacuum extractor, thereby establishing a waiver of governmental immunity under the provisions of TEX.CIV.PRAC. & REM. CODE ANN. sec. 101.021 (Vernon 1986). We further find that the trial court erred by granting summary judgment in favor of Drs. Schlaudt, Garcia, and Lozano, because the summary judgment proof failed to establish that they were entitled to official immunity as a matter of law, since there was no summary judgment proof that their duties are uniquely different from those engaged in the same duties in the private sector or that they were exercising a function unique to government. We also decline to abolish the doctrine of governmental immunity or to find that the application of the doctrine or the limitation of liability under the Texas Tort Claims Act, as it relates to the Hospital District, violates the appellants’ rights under either the United States or Texas Constitutions. In view of our rulings on the remaining points of error, we have determined that it is unnecessary to consider points of error complaining of limitations as to the liability of the physicians.

In points of error numbers two, three, and four, the appellants urge that the trial court erred in granting the Hospital District’s motion for summary judgment because the treatment of Allen and Rachel Armendarez involved the use of tangible personal property, including the failure to properly interpret prenatal and delivery records, and failure to properly follow hospital procedure manuals, as well as the use of vacuum extraction equipment. They contend that since the use of tangible personal property was involved, that governmental immunity was waived under the provisions of The Texas Tort Claims Act, section 101.021 of the Texas Civil Practice and Remedies Code.

The Hospital District’s motion for summary judgment was grounded on its claim that the appellants failed to state a cause of action coming within an exception to its claim of governmental immunity, and failed to raise any genuine issue of material fact. The appellants urged that governmental immunity was waived because the treatment of mother and child during labor involved, as alleged by them, the misuse of tangible personal property such as prenatal records and vacuum extraction equipment. The appellants alleged that each of the defendants was negligent in several respects, including misinterpretation of prenatal records generated as part of prenatal care and hospital records generated during the birth process, and in utilizing vacuum extraction equipment instead of performing a delivery by cesarean section, and that each or all of the acts of negligence proximately caused the injuries and damages of which they complain.

Ordinarily, a defendant who moves for summary judgment has the burden of showing as a matter of law that no material issue of fact exists as to the plaintiff’s cause of action. Griffin v. Rowden, 654 S.W.2d 435, 435-86 (Tex.1983). However, in this case the Hospital District relies on the affirmative defense of governmental immunity. It is undisputed that the Hospital District is a governmental entity to which the doctrine of governmental immunity would be applicable. In a case in which an affirmative defense is established, the burden of raising a disputed fact issue shifts to the non-movant. Palmer v. Enserch Corp., 728 S.W.2d 431 (Tex.App.-Austin 1987, writ ref’d n.r.e.); Hittner and Liberato, Summary Judgments in Texas, 20 St. Mary’s L.J. 243, 272 (1989). We therefore examine the summary judgment evidence to see if it establishes that there are any disputed fact issues.

The appellants assert that the summary judgment evidence shows that there are fact issues with regard to whether their claim comes within the waiver of governmental immunity provided in section 101.-021 of the Texas Civil Practice and Remedies Code. That section provides that a governmental unit in the state is liable for personal injury and death proximately caused by the wrongful acts or omissions or negligence of employees acting within the scope of employment, when the personal injury or death is caused by a condition or use of tangible personal or real property, if the governmental unit would be liable under Texas law as a private person.

Among the allegations of negligence, the appellants alleged that- the defendants were negligent and fell below the standard of care “c. in misinterpretation of the prenatal records generated as part of the prenatal care of Rachel Armendarez, with the result that they failed to recognize that Allen Armendarez was too large to be born through normal delivery; d. in misinterpretation of the hospital records being generated during the birth process including fetal monitoring records and prenatal records, with the result that they failed to recognize that fetal pelvic disproportion existed so that birth through normal delivery should not be attempted; e. in utilizing vacuum extraction equipment in order to deliver the head of Allen Armendarez as opposed to performing a cesarean section; f. in misusing and misinterpreting hospital procedure manuals indicating that additional testing leading to a cesarean section should have been utilized.” The petition alleged these acts of negligence were proximate causes of Allen’s injuries.

While the summary judgment evidence may indicate that the appellees should have performed a cesarean section rather than a vaginal delivery, there is no summary judgment evidence that indicates that any of the appellees misinterpreted any records in any way. In his deposition testimony, Dr. Arthur Lester, the appellants’ expert, testified that under the circumstances, which included a young mother, a large baby, a mother who had gained too much weight during pregnancy, and a two-hour period during labor without further dilation of the mother, that the performance of a vaginal delivery, as opposed to a cesarean delivery, was not good medical practice. He said that the hospital records indicated that the baby was large and that the mother had gained too much weight during pregnancy. The appellants do not refer us to any summary judgment evidence that any of the appellees had misinterpreted the records so as to be unaware of those facts. In fact the appellants refer us to evidence that shows Dr. Schlaudt was aware of the mother’s excessive weight gain, and that he had consulted with another physician about it. They also mention that Dr. Schlaudt wrote many of the records. We find that the appellants failed to meet their burden of raising a disputed fact issue as to any prenatal or other hospital records.

With respect to the appellants’ allegations as to the misuse or misinterpretation of the hospital procedure manuals, the appellants fail to refer us to any summary judgment evidence which shows that any of the appellees made any use of the hospital procedure manuals. As the appellants acknowledge, a nonuse of personal property does not trigger a waiver of immunity under the Tort Claims Act. See Seiler v. Guadalupe Valley Hospital, 709 S.W.2d 37, 38 (Tex.App.-Corpus Christi 1986, writ ref’d n.r.e.). We therefore find that the appellants have failed to meet their burden of raising a disputed fact issue as to the misuse or misinterpretation of the hospital procedure manuals. We overrule point of error number three.

The summary judgment evidence indicates that the physicians at the hospital delivered Allen vaginally, using a vacuum extractor, equipment used in lieu of forceps, to help bring out the child’s head. The use of the extractor resulted in a bruise to the child’s head. After the extractor had been used, the doctors experienced difficulty in getting the child delivered because a shoulder was lodged within the mother. As a further complication, his umbilical cord became severed, necessitating an immediate delivery so that the child could breathe. The physician by hand exerted pressure on the child’s head and brought him out. There is evidence that the child at that time sustained what is called a brachial plexus injury, an injury to his shoulder with long-term residual effects.

The appellants presented summary judgment evidence that, due to certain complication risk factors, such as the age and weight of the mother and the size of the baby, the proper standard of care required a cesarean section instead of a vaginal delivery, because of the risk of an injury such as the one which occurred. As previously noted, the vacuum extractor was used to accomplish the vaginal delivery. According to the summary judgment evidence, had a vaginal delivery been appropriate, the use of the extractor would have been properly within the standard of care. The extractor was not defective. The nature of the injury was such that it would not have occurred had a cesarean section been used. There was summary judgment evidence that the decision to perform a cesarean section should have been made initially, but failing that it should have been made during labor, and, failing that, it should have been made prior to delivery, which is when the extractor was used. There is some summary judgment evidence that the injury was proximately caused by the use of the vacuum extractor in the sense that the use of the vacuum extractor moved the child from a position at which a cesarean section could have been performed to a position where it could no longer reasonably be performed. The appellants’ contention is that the shoulder injury was proximately caused by the improper use of the vacuum extraction equipment to perform a vaginal delivery, improper in the sense that it should never have been used at all since a cesarean section should have been performed instead. We hold this summary judgment evidence is sufficient to raise a fact issue as to whether Allen’s injuries were proximately caused by the negligent use of a vacuum extractor to perform a vaginal delivery, as opposed to the performance of a cesarean section. We sustain points of error numbers two and four.

The appellants contend in point of error number five that the trial court erred in granting summary judgment for Drs. Schlaudt, Garcia, and Lozano since they are not immune from liability under the terms of TEX.CIV.PRAC. & REM.CODE ANN. sec. 101.106 (Vernon 1986). This section states that “A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.” Id. In view of our determination of points of error numbers two and four, we must also sustain point of error number five.

In point of error number six, the appellants maintain that the trial court erred in granting summary judgment for the individual doctors since the doctrine of official immunity is not applicable to doctors in connection with their care of patients.

It has been held in Texas that government employees are entitled to official immunity if their position has a quasi-judicial status and if the employee is acting in good faith within his or her authority as a quasi-judicial employee. Austin v. Hale, 711 S.W.2d 64, 66 (Tex.App.-Waco 1986, no writ). See also Baker v. Story, 621 S.W.2d 639, 644 (Tex.App.-San Antonio 1981, writ ref’d n.r.e.). These same decisions state that quasi-judicial actions are those acts which are discretionary in character and require personal deliberation, decision, and judgment. Austin, 711 S.W.2d at 67; Baker, 621 S.W.2d at 645. Both of these opinions distinguish between such quasi-judicial actions, which enjoy immunity, and ministerial actions, which do not. They state that ministerial actions require only obedience to orders, or the performance of a duty as to which the actor is left no choice. Austin, 711 S.W.2d at 67; Baker, 621 S.W.2d at 645. These definitions and distinctions were taken from W. Prosser, The Law of Torts, sec. 132, p. 990 (4th ed. 1971). It is interesting to note that Baker includes the quote from that text which stated that these distinctions are for all practical purposes unworkable because almost any act involves some discretion in the manner of its performance. Baker, 621 S.W.2d at 645.

The underlying basis for the above distinctions is the purpose for official immunity. The United States Supreme Court has stated that the purpose of the immunity is so that government officials might be free to exercise their duties without fear of damage suits — suits which would consume their time and energy and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. See Barr v. Matteo, 360 U.S. 564, 571-73, 79 S.Ct. 1335, 1339-41, 3 L.Ed.2d 1434, 1441-42 (1959).

Texas courts have not previously addressed the question of whether medical doctors are entitled to official immunity. Generally, the courts of our sister states have held that medical doctors employed by government do not enjoy the protection of official immunity, even though their actions are discretionary. See Watson v. St. Annes Hospital, 68 Ill.App.3d 1048, 25 Ill. Dec. 411, 386 N.E.2d 885 (1979); Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86, 94 (1983); Davis v. Lhim, 124 Mich.App. 291, 335 N.W.2d 481 (1983); Cooper v. Bowers, 706 S.W.2d 542, 543 (Mo.App.1986); Comley v. Emanuel Luth. Charity Bd., 35 Or.App. 465, 582 P.2d 443, 452 (1978); Protic v. Castle Co., 132 Wis.2d 364, 392 N.W.2d 119 (1986). At least one federal circuit has reached the same result. Henderson v. Bluemink, 511 F.2d 399 (D.C.Cir.1974). Basically, these courts have concluded that medical doctors in medical malpractice cases are not entitled to the protection of official immunity because the basic purpose of the doctrine is not served since the duties the doctors exercise are not uniquely governmental in nature, and because the threat of a lawsuit would not deter a doctor in the fearless and vigorous exercise of medical discretion any more than it would a doctor in private practice.

The Virginia Supreme Court held that doctors treating patients at state hospitals did not enjoy such immunity because the state’s interest in the cost of medical malpractice insurance in the event the immunity were denied was not such a compelling interest so as to justify the denial of a patient the right to assert a claim against a physician for negligent treatment. James v. Jane, 221 Va. 43, 267 S.E.2d 108, 114 (1980). A Georgia Court of Appeals inexplicably held, in the case of a psychiatrist at a state hospital who was being sued for the wrongful discharge of a psychiatric patient, that the physician enjoyed such immunity in a suit by the patient’s family, but did not enjoy such immunity in a suit brought by the patient. Swofford v. Cooper, 184 Ga.App. 50, 360 S.E.2d 624 (1987). In New Hampshire, the supreme court held that the administration of testing fluids, the maintenance of a laboratory and its lab supplies, and the preparation for a routine eye examination did not call for deliberation, discretion, or a policy choice, so that those actions did not enjoy official immunity. The court declined to reach the question of whether a doctor working for the state would ever be engaged in acts which would enjoy official immunity. Tilton v. Dougherty, 126 N.H. 294, 493 A.2d 442 (1985).

In its Fifth Edition, Prosser and Keeton on Torts simply states that “In the absence of statute the officer or employee is not immune from liability ... for negligent medical treatment.” P. Keeton, Prosser and Keeton on Torts, sec. 132, at 1062 (5th ed. 1984).

The Supreme Court of Mississippi has held that physicians are entitled to official immunity because the threat of liability might deter doctors from entering government service and because immunity acts as a powerful incentive to some doctors to serve in state charitable institutions, which makes medical care available to many who might not be able to afford medical care in private facilities. Marshall v. Chawla, 520 So.2d 1374, 1377 (Miss.1988). One federal circuit held that doctors enjoyed the immunity, relying on a literal application of the discretionary-ministerial function rule, based upon the fact that a physician exercises discretion. Estate of Burks v. Ross, 438 F.2d 230 (6th Cir.1971). Another federal circuit upheld the physician’s immunity without discussion. Bates v. Carlow, 430 F.2d 1331, 1332 (10th Cir.1970).

Having reviewed all of these authorities, we hold that a medical doctor is not entitled to protection as a quasi-judicial officer, even though his or her duties literally involve the exercise of discretion, where the doctor’s duties are not uniquely different from those engaged in the same duties in the private sector or where no function unique to government is being exercised. We so hold because the purpose for official immunity is not served when an employee has the same duty and therefore no greater risk of liability than an employee performing the same duties in the private sector.

In this case, Dr. Schlaudt gave Rachel prenatal care and was one of two doctors who participated in the delivery of Allen; Dr. Lozano examined Rachel prior to delivery; and Dr. Garcia assisted Dr. Schlaudt in the delivery. All three doctors were employees of John Peter Smith Hospital, a public hospital operated by the Tarrant County Hospital District, a political subdivision of the State. Allen apparently suffered injury during the course of delivery. Allen was large at birth, weighing approximately eleven pounds at birth. Rachel was sixteen years of age at the time she first came in for prenatal care.

In a summary judgment case, we may affirm only if the record establishes that the movant has conclusively proved all essential elements of his cause of action or defense as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). There is no summary judgment proof to the effect that the duties of the doctors constituted a function unique to government or that they were uniquely different from the duties of those practicing medicine in the private sector. The summary judgment proof therefore fails to establish as a matter of law that Drs. Schlaudt, Lozano, and Garcia are entitled to official immunity.

We do not regard our opinion in this case as a departure from the established Texas rules affording the benefits of the doctrine to those who exercise quasi-judicial discretion, only a clarification that in keeping with the underlying basis of the doctrine, the discretion which must be exercised by the governmental employee or official seeking official immunity must be uniquely governmental in nature. This specific question has not previously been addressed by the Texas courts.

Since the summary judgment proof fails to establish that Drs. Schlaudt, Lozano, and Garcia are entitled to official immunity as a matter of law, we sustain point of error number six.

Appellants contend in point of error number one that the trial court erred in granting summary judgment because there are material fact issues to be determined. In view of our determination of the remaining points of error, we sustain point of error number one.

In points of error numbers seven, eight, and nine, the appellants maintain that the doctrine of government immunity should be abolished, and that the application of such doctrine or the limitation of liability under the Texas Tort Claims Act, as to the Hospital District, violates their rights under various provisions of the Constitution of the United States and of the State of Texas, including the Equal Protection, Due Process, and Privileges and Immunities Clauses of the United States Constitution, and article I, sections 3, 3a, 13, and 19 of the Texas Constitution. For the reasons stated in our previous opinion of Tarrant County Hospital District v. Ray, 712 S.W.2d 271, 273 (Tex.App.-Fort Worth 1986, writ ref’d n.r.e.), we overrule points of error numbers seven, eight, and nine.

In points of error numbers ten, eleven, and twelve the appellants assert that the trial court erred in granting summary judgment, relying on their contentions that sections 101.106 and 101.023 are unconstitutional under various articles and sections of the United States and Texas Constitutions. In view of our determination with respect to the remaining points of error, we need not consider these points of error.

The judgment is reversed and the cause remanded.

MEYERS, J., dissents.