Kerrville State Hospital v. Clark

ABBOTT, Justice,

joined by PHILLIPS, Chief Justice, CORNYN and SPECTOR, Justices, dissenting.

I dissent because the Court incorrectly interprets the facts and abandons precedent. The Court erroneously classifies this as a “non-use” case under the Texas Tort Claims Act and concludes that sovereign immunity is not waived. In reality, this case involves a “misuse” of drugs. Evidence showed that Kerrville State Hospital (KSH) prescribed drugs which were inappropriate for the purpose intended. Under this Court’s precedent, use of an inappropriate drug constitutes misuse of tangible personal property and waives sovereign immunity.

The treatment plan KSH created for Gary Ligón required him to meet with a KSH staff member at least once a month “for delivery of medications.” KSH was aware that Ligón was not taking his medications and that he became violent when not medication-compliant. Nonetheless, KSH prescribed the oral medication, Thorazine, and released Ligón. Dr. Schultheis, a physician who treated Li-gón at KSH, and Dr. Coons, an expert for KSH, testified that Haldol and Prolixin are injectable antipsychotic medications which could be used instead of Thorazine and could be effective for up to one month. Dr. Rosen-thal, an expert for the Clarks, testified that the long lasting injections of Prolixin or Hal-dol should have been used instead of the oral form of Thorazine. Dr. Rosenthal further testified that the use of a long lasting, inject-able antipsychotic medication, rather than the inappropriate oral medication, would have kept Ligón medication-compliant and safe for release, preventing the tragic murder of Rebecca Ligón. This evidence, indicating misuse of Thorazine, waived sovereign immunity. Similarly, the condition of the medication — oral rather than injectable— causes a waiver of sovereign immunity.

I.

The Texas Tort Claims Act (Act) waives sovereign immunity for “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.” Tex.Civ.PRAC. & Rem.Code § 101.021(2). The “use” of tangible personal property occurs when the property is brought into action or is employed for a given purpose. Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 211 (Tex. 1989).

Clearly, prescription drugs are tangible personal property. See Kassen v. Hatley, 887 S.W.2d 4, 15 (Tex.1994) (Phillips, C.J., dissenting). Sovereign immunity was waived when KSH used drugs to treat Ligon’s psychotic behavior. See Quinn v. Memorial Medical Ctr., 764 S.W.2d 915, 917 (Tex. App.— Corpus Christi 1989, no writ); see also Kassen, 887 S.W.2d at 15 (Phillips, C.J., dissenting). In Quinn , the court held that the dispensing of a drug is the use of tangible personal property and waives immunity un *587 der the Act. 764 S.W.2d at 917 . In this case, the delivery of medications by a KSH staff member likewise constitutes use of medications, waiving immunity under the Act. The Court’s reliance on the majority in Kassen is misplaced since, in that ease, the hospital took medicine away from a patient rather than misusing medicine it was prescribing to a patient.

“Liability has been imposed when the injuries are alleged to have proximately resulted from the negligent use of property in some respect deficient or inappropriate for the purpose for which it was used.” Hopkins v. Spring Indep. Sch. Dist., 706 S.W.2d 325, 327 (Tex.App.— Houston [14th Dist.] 1986), aff'd, 736 S.W.2d 617 (Tex.1987); see also LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992) (stating that use means to bring into action or to apply for a given purpose). In this case, there is evidence that the use of Thorazine by KSH was both deficient and inappropriate for the purpose of safely releasing Ligon, triggering a waiver of immunity. See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex.1976) (deficient football uniform); Overton Memorial Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975) (deficient hospital bed); Texas Dep’t of Corrections v. Jackson, 661 S.W.2d 154, 158 (Tex.App.— Houston [1st Dist.] 1983, writ refd n.r.e.); see also Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 174 (Tex. 1989) (Heeht, J., dissenting) (agreeing that “a governmental unit may be liable for furnishing defective property.”). The jury was presented evidence that the drug KSH furnished to Ligón was defective because KSH knew Ligón was not taking his medication.

Admittedly, non-use or failure to use an available drug is not, standing alone, a use of tangible personal property sufficient to waive immunity under the Act. Kassen, 887 S.W.2d at 14 . This case, however, does not involve the mere failure to provide necessary medicine. Rather, it involves the prescription of a drug which KSH knew Ligón had not taken in the past and probably would not take in the future. Non-use of an available drug is not the proper focus when there is also misuse of prescription medication.

In Lowe , this Court held that the failure to include a knee brace when providing a football uniform was a condition or use of tangible personal property. Lowe, 540 S.W.2d at 300 . Similarly, this Court held that the failure to furnish an available life preserver, as part of a swimming uniform, to an MHMR patient waived sovereign immunity when the staff knew the patient suffered from epileptic seizures which caused him to pass out. Robinson, 780 S.W.2d at 171 . The circumstances supporting a waiver of immunity here are even stronger than in Lowe and Robinson , as KSH furnished drugs specifically to treat Ligon’s psychotic behavior. It would be as if the State furnished an inappropriate knee brace in Lowe , or an inappropriate life preserver in Robinson . Even the dissenting justices in Robinson recognized this would constitute misuse of tangible personal property. 780 S.W.2d at 175 (Hecht, J., dissenting) (“[H]ad the state mental health center ... negligently supplied Robinson’s grandson with a defective life preserver, resulting in his death, its liability would be beyond question.”). Precedent thus mandates a decision denying sovereign immunity to KSH.

The Court struggles to distinguish Lowe and Robinson and says that the “difficulty of interpreting the Act’s waiver provisions has led this Court on several occasions to request guidance from the Legislature in interpreting these provisions.” Ante at 584. The Court ignores, however, its previous and consistent proclamation that legislative inaction following judicial interpretation evidences legislative adoption of such interpretation. See Robinson, 780 S.W.2d at 170 n. 4; Allen Sales and Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975); Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 186 (Tex.1968); Moss v. Gibbs, 370 S.W.2d 452, 458-59 (Tex.1963). The Legislature’s refusal to revise the waiver provisions of the Act following Lowe and Robinson implies that it has adopted those decisions.

II.

KSH also claims that it had no duty to Rebecca. Relying on Bird v. W.C.W., 868 S.W.2d 767 (Tex.1994), KSH argues that a *588 mental health professional owes a duty of care only to his or her patient. Alternatively, KSH insists that a duty to a non-patient arises only if there are specific threats against specific persons. Williams v. Sun Valley Hosp., 723 S.W.2d 783 (Tex.App.— El Paso 1987, writ ref d n.r.e.).

The Clarks concede that health care professionals owe no blanket duty to the public. But, they disagree with the assertion that a specific threat against a specific person is required to establish a duty to a non-patient. Instead, the Clarks argue that KSH had a duty because KSH had control over Ligón and knew or reasonably should have known that he posed a serious danger to a readily identifiable person or class of persons. I agree.

At the outset, I conclude that Bird does not control this case. In Bird , we held that a mental health professional who negligently misdiagnoses sexual abuse of a child owes no duty of care to the child’s parent who may suffer false accusations and adverse legal consequences from the misdiagnosis. In reaching that decision, we relied on factors unique to that factual setting, such as the inherent difficulty in diagnosing sexual abuse of a child and the social utility in encouraging a full investigation of sexual abuse claims. Bird, 868 S.W.2d at 769 . Because those factors have no bearing on a mental health professional’s duty of care to third persons who may be harmed by a violent, psychotic patient, Bird is not controlling.

More analogous to this case is Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983). In that case we held that employers who exercise control over incapacitated employees owe a duty of reasonable care to third parties who risk injury from that employee. Otis Eng’g, 668 S.W.2d at 311 . “Such a duty may be analogized to cases in which a defendant can exercise some measure of reasonable control over a dangerous person when there is a recognizable great danger of harm to third persons.” Id.; see also Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993) (stating that the right to control is a factor in determining duty).

In recognizing this duty, we have relied in part on section 319 of the Restatement (Second) of Torts which provides:

§ 319. Duty of Those in Charge of Person Having Dangerous Propensities

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

Restatement (Second) of ToRts § 319 (1965); see Otis Eng’g, 668 S.W.2d at 311 .

Section 319 establishes a duty of care in this case. Following Ligon’s release from KSH in August 1989, he remained under a court-ordered out-patient commitment. In the out-patient commitment order, the court rendered findings that Ligón is “mentally ill,” that as a result of that mental illness he is “likely ... [t]o cause serious harm to self and/or others,” and that, if not treated, he will “continue to suffer severe and abnormal mental, emotional or physical distress....” The court designated Lois Hutson, a clinical social worker with KSH, as the individual responsible for Ligon’s out-patient care, directing her to submit a treatment program to be incorporated into the commitment order. See TexHealth & Safety Code § 574.037. This treatment program recognized that Li-gón had a long history of “assaultive and aggressive behaviors” and was “potentially very dangerous.” It called for treatment through a drug regimen to control Ligon’s physical aggression and to alleviate his psychotic symptomatology, and it required Li-gón to return to the hospital for periodic examinations to monitor his compliance. Hutson was required by statute to inform the court if Ligón failed to comply with the treatment program. See TexHealth & Safety Code § 574.037(c)(1). Under these circumstances, KSH was in “charge” of Ligón for purposes of section 319 of the Restatement.

Further, there is evidence that KSH knew or should have known that Ligón posed a likely threat to Rebecca if he was not properly medicated. In addition to the findings in the commitment order and treatment program, Ligon’s medical records indicated that he was the “most dangerous [type of] patient *589 seen in a psychiatric practice.” “He is potentially suicidal and/or homicidal.” “Patient is violent when intoxicated, has attempted suicide several times, has been assaultive towards family and police.” “Patient is potentially suicidal and/or homicidal and is alcohol dependent and non-compliant in taking anti-manic meds.” “This patient can become extremely dangerous to self or others if not medication-compliant and abstinent from alcohol.” Under these circumstances, KSH clearly owed a duty to Rebecca to exercise reasonable care in treating Ligón for his psychotic behavior.

III.

KSH next argues that there is no evidence that any action on its part caused Rebecca’s death. When deciding a no evidence point we must consider only the evidence and all reasonable inferences which support the jury finding. See Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992). If there is more than a scintilla of evidence to support the finding, the no evidence challenge must fail. Id.

Proximate cause has two elements, foreseeability and cause-in-fact. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Foreseeability is satisfied if a person of ordinary intelligence should have anticipated the danger caused by his negligent act. Id. The particular manner of the injury need not be foreseeable to establish this element. Id. “Although the criminal conduct of a third party may be a superseding cause which relieves the negligent actor from liability, the actor’s negligence is not superseded and will not be excused when the criminal conduct is a foreseeable result of such negligence.” Id.

As discussed earlier, there are notes in Ligon’s medical file discussing his homicidal tendencies, his assaultive behavior towards his family, his failure to remain medication-compliant, and his violent behavior when not medication-compliant. Further, Ligón was originally committed to KSH for assaulting his wife. This is some evidence that KSH knew or should have known that Ligón would assault Rebecca if released without being properly medicated. As such, the foreseeability prong is satisfied.

Cause-in-fact may be proven by circumstantial evidence. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992). Cause-in-fact is established if the negligent act “was a substantial factor in bringing about the injury, and without it harm would not have occurred.” Travis, 830 S.W.2d at 98 ; see also Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988).

Experts for both the Clarks and KSH testified that Ligon’s medical records indicated that he had been violent towards Rebecca when not medication-compliant and that if released without being properly medicated he would likely be violent towards Rebecca again, especially considering his ongoing separation and divorce. Ligón admitted to the KSH doctors that he was not taking his medication. Dr. Rosenthal, an expert for the Clarks, testified that KSH could have assured Ligon’s compliance with his treatment plan by administering long-acting forms of antipsychotic medication by injection, and that the absence of such injections was a “real deficiency” in his treatment plan. This, coupled with the evidence of Ligon’s history of violent behavior when off antipsychotic medication, and Ligon’s violent murder of Rebecca only seven days after being discharged, is some evidence from which the jury could infer that the hospital’s misuse of medication caused Rebecca’s death.

IV.

While I conclude that there is some evidence that KSH misused tangible personal property within the meaning of the Tort Claims Act, KSH correctly contends that the trial court erred in submitting the liability issue to the jury. Question 1, which the jury answered affirmatively, provided as follows:

Was Kerrville State Hospital negligent in discharging Gary Ligón on May 24, 1990?

You are instructed that in determining the negligence, if any, of the officers and employees of Kerrville State Hospital, consider only their use or misuse of medical records, admission and discharge documents, and/or medications of Gary Ligón,

(emphasis added). KSH objected to this question, arguing to the trial court that “the *590 particular properties that are attempted to be listed [in question 1] do not come within the definition of tangible personal property, with the exception of medications.” The court overruled this objection.

KSH argues that the jury should not have been permitted to consider the use or misuse of medical records or other documents, over its timely objection. I agree. While the paper on which medical records and other documents are printed constitutes tangible personal property, the information contained in the records and documents is intangible. See University of Texas Med. Branch v. York, 871 S.W.2d 175, 179 (Tex.1994). The Tort Claims Act does not waive immunity for misuse of intangible information, even if the information is reduced to writing. Id. Because question 1 .erroneously allowed the jury to consider the hospital’s misuse of the information contained in Ligon’s medical records, KSH is entitled to a new trial. See Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994).

For the foregoing reasons, I would reverse the judgment of the court of appeals and remand this cause to the trial court for a new trial.