Texas Department of Mental Health & Mental Retardation v. Petty

848 S.W.2d 680, 36 Tex. Sup. Ct. J. 421, 1992 Tex. LEXIS 185

• Court: Texas Supreme Court
• Decided: December 31, 1992
• Docket: No. D-1939
• Status: Published

Opinions

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. 817 S.W.2d 707. We conclude that the State is not immune from such an action and affirm the judgment of the court of appeals.

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 1985 that she was furloughed to a foster 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. & Rem.Code § 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 immunity contained in the Texas Tort Claims Act. See Tex.Civ.PRác. & 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., 659 S.W.2d 30 (Tex.1983), by holding that the negligent conduct of its personnel need only involve the use of property, rather than requiring that the property be the instrumentality of harm. The Department goes so far as to suggest that the only way Ms. Petty could have been injured by the treatment records was if a large stack of them had fallen on her head.

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., 780 S.W.2d 169, 170 (Tex.1989). In Salcedo, we permitted an action to be maintained for a government doctor’s alleged misreading and misinterpretation of graphs produced by electrocardiograph equipment. Reversing the lower courts’ dismissal of the action, we stated:

[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, 659 S.W.2d at 33 (emphasis added). This court was well aware that the exercise of judgment based on medical records was required: “Reading and interpreting are purposes for which an electrocardiogram graph is used or employed in diagnosing myocardial infarction.” Id. We certainly did not impose upon Ms. Salcedo the burden of proving that her husband died as a result of physical injury from the graph itself, rather than from the diagnosis premised on that record. See also Huckabay v. Irving Hosp. Found., 802 S.W.2d 758 (Tex.App.—Dallas 1990, writ denied) (rejecting argument that x-ray machine itself must cause injury, as opposed to its misuse by a technician). Nor should we impose any such burden on Opal Petty.

Here, the jury explicitly found that Ms. Petty was injured by negligence in the use or misuse of property. Jury Question 2 inquired whether “[f]rom 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

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 same — for 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, 659 S.W.2d at 32 (discussing Lowe v. Texas Tech Univ., 540 S.W.2d 297, 303 (Tex.1976) (Greenhill, C.J., concurring)). That call was recently renewed in Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 170 (Tex.1989). It has now been sixteen years and nine regular legislative sessions since our decision in Lowe and nine years since Salcedo, and despite amendment and recodification of the Act,⁵ and yet another legislative session after Robinson, the Legislature has not even attempted to alter our prior holdings. We recognize the doctrine of stare decisis has its greatest force when applied to cases of statutory construction, and we have acknowledged statutory reenactment without material change as an indication of legislative intent to adopt existing interpretations of this court. See, e.g., Wich v. Fleming, 652 S.W.2d 353, 355 (Tex.1983); Coastal Indus. Water Auth. v. Trinity Portland Cement Div., 563 S.W.2d 916, 918 (Tex.1978). Today, we follow our unanimous decision in Salcedo and hold that Ms. Petty’s treatment records, as used and relied on here, are tangible property, the misuse of which will subject the government to liability just as if it were a “private person ... in accordance with the law of this state.” See Rawlings v. Angelo State Univ., 648 S.W.2d 430, 433 (Tex.App.—Austin 1983, writ ref d n.r.e.) (quoting Tort Claims Act).

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. & Rem.Code Ann. § 101.057(2) (Vernon 1986 & Supp.1992) (excluding intentional torts — including 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, 693 S.W.2d 374, 375 (Tex.1985). Although Ms. Petty did allege her confinement was willful, involuntary, and unlawful, she did not plead false imprisonment. Rather, she pleaded that she was injured because of her confinement and the negligent care she received while institutionalized. The trial court did not submit a question on false imprisonment to the jury, nor did the jury’s verdict or the trial court’s judgment rest on any such theory. That Ms. Petty’s injury occurred during the time she was institutionalized does not make her claim one of false imprisonment barring suit under the Tort Claims Act. See Young v. City of Dimmitt, 787 S.W.2d 50, 51 (Tex.1990) (per curiam) (recognizing recovery available under Act for negligent conduct even though accompanied by intentional tort); cf. Cuddy v. Texas Dep’t of Corrections, 578 S.W.2d 522, 524 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref d n.r.e.) (court held Act did not shield government from liability for injuries arising from failure to provide adequate services incidental to rehabilitation of inmates); Jenkins v. State, 570 S.W.2d 175, 178 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ) (court permitted suit for negligent provision of medical treatment to prison inmate).

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

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 years — she 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, 373 F.2d 451, 452 (D.C.Cir.1967). Involuntary commitment is permissible only because of its “humane therapeutic goals.” Id. When the State negligently fails to pursue the goals, as here, liability may attach.

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.

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., 802 S.W.2d 647 (Tex.1990).

3 . See Department’s Application for Writ of Error at 23-24 n. 6 (“mental status exams" are 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, 66 Misc.2d 936, 323 N.Y.S.2d 56, 60 (N.Y.Ct.Cl.1971) (court held state hospital not relieved of duty to exercise requisite care and skill consistent with accepted medical testing and procedure in treating institutionalized patients); Whitree v. State, 56 Misc.2d 693, 290 N.Y.S.2d 486, 489 (N.Y.Ct.Cl.1968) (court distinguished between false imprisonment and negligence where claim was based on state’s failure to provide adequate psychiatric treatment and medical care during plaintiff's 12-year stay in state hospital); Hale v. Portsmith Receiving Hosp. of the Dep't. of Mental Hygiene, 44 Ohio Misc. 90, 338 N.E.2d 371 (1975) (court overruled state’s motion to dismiss claim against state mental hospital for negligent treatment of patient). Cf. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (Supreme Court held institutionalized patients possess constitutional right to adequate treatment); O'Connor v. Donaldson, 422 U.S. 563, 567, 95 S.Ct. 2486, 2489, 45 L.Ed.2d 396 (1975) (in Title 42 suit where plaintiff was held in state hospital against his will for 15 years, Court noted that matters of initial commitment were "irrelevant” and focused on care and assistance provided during confinement).