Hatley v. Kassen

CARVER, Justice, Assigned

dissenting.

I respectfully disagree with my colleagues and dissent to their opinion and judgment reversing the trial court’s summary judgment as to some defendants and its instructed verdict as to the remaining defendants.

This dissent does not rest upon factual premises, and I do not dispute, but rely upon, the facts set out in the opinion of my colleagues.

As the majority opinion states, Pennie Johnson had been a chronic mental patient for ten years. Repeatedly, she had threatened suicide, seeking to compel medical professionals to disregard their medical judgments and to obey Pennie’s contrary personal wishes. On February 14, 1988, Pennie yet again threatened suicide when she was refused admission to the hospital and her abused prescription medication was taken from her possession. About thirty minutes after this last threat, Pennie stepped into traffic on an interstate highway, was hit by a truck, and died.

No medical professional seen by Pennie had ever submitted to her threats. Pennie had not pursued her threats beyond verbal *381 izing them; consequently, empty threats were the only “foreseeable” types of threats from her. The record is silent as to events or expressions involving Pennie in the time between when she left Parkland Hospital and when she was struck by the truck, and it is only speculation that Pen-nie’s death was anything but an accidental misjudgment by a pedestrian as to the risk posed by an oncoming vehicle.

While no direct precedent has been found by my brothers, or counsel, or me, there is a line of cases that persuades me to conclude that the trial court correctly concluded that the claim asserted is patently without merit and subject to summary, or directed, disposition.

In Weeks v. Harris County Hosp. Dist., 785 S.W.2d 169 (Tex.App.—Houston [14th Dist.] 1990, writ denied), a court warrant ordered a person to be detained as an inpatient in a mental health facility. The person was brought to the defendant hospital, which had no such facilities. The person was neither registered nor admitted but was waiting to be transported to another hospital with the required facilities when she left the hospital, went home, and killed herself with a gun. The husband’s and children’s suit against the hospital was concluded by summary judgment on the grounds that the hospital was immune as a governmental entity under the Texas Constitution 1 and that such immunity was not waived under the Texas Tort Claims Act. 2 In short, Weeks holds that the hospital has no duty prior to accepting a patient and that, after admission, the “injury must be foreseeable” and the hospital’s “conduct must be the proximate cause.” Weeks also holds “that hospital officials were neither negligent nor could they have reasonably anticipated Mrs. Weeks’ self-destructive acts.”

In Williams v. Sun Valley Hosp., 723 S.W.2d 783 (Tex.App.—El Paso 1987, writ ref’d n.r.e.), an admitted mental patient escaped and jumped in front of a car which killed him. The driver sued the hospital for negligence in failing to control a mental patient. The court rejected the existence of a legal “duty to control” upon counsel-ling professions because “human behavior is simply too unpredictable ... to so greatly expand the scope of the therapist liability.” Williams, 723 S.W.2d at 786 .

In Harris Hosp. v. Pope, 520 S.W.2d 813 (Tex.App.—Fort Worth 1975, writ ref’d n.r.e.), an admitted patient crawled onto an outside building ledge and fell or jumped to her injury. Negligence was asserted as a failure to keep a watch on the patient. Judgment for the Popes was reversed holding that the trial court erred in failing to grant both directed verdict and judgment N.O.Y. The opinion relies upon and quotes Bornmann v. Great Southwest Hosp., Inc., 453 F.2d 616 (5th Cir.1971), wherein the court stated:

Simply stated, a hospital is under a duty to exercise reasonable care to safeguard the patient from any known or reasonable apprehensible danger from himself and to exercise such reasonable care for his safety as his mental and physical condition, if known, may require. Liability exists only if the suicide proximately results from the negligence of the hospital or its employees. The most important single factor in determining the liability of a hospital for failing to prevent the suicide of a patient is whether the hospital authorities in the circumstances, could reasonably have anticipated that the patient might harm himself.

Id. at 621 (emphasis added).

These authorities compel me to question whether there is any legal duty imposed upon the hospital and its staff prior to admission of a person as a patient. If such a duty does exist, the risk from breach of that duty must, under these authorities, be foreseéable. If the threat of suicide has been made for more than ten years, emptily, can one more threat, under these authorities, make actual suicide reasonably foreseeable this time? I am compelled to conclude that after ten years of threats of *382 suicide, the act of suicide cannot be said to have been reasonably foreseeable.

Likewise, these authorities compel me to question whether the hospital’s or the staff’s conduct of refusing admission and access to abused prescription drugs can be said to be the proximate cause of Pennie’s injury. Pennie’s empty threats for ten years would only support nonsuieide. While the gun in one case above, or crawling out on a window ledge in another case, might equate to suicide, a pedestrian-vehicle collision would support equally other inconsistent conclusions; consequently, it supports none. See Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984); Texas Sling Co. v. Emanuel, 431 S.W.2d 538, 541 (Tex.1968). I am compelled to conclude that there can be no proof showing the conduct of the hospital or staff was the “proximate cause” of any injuries to Pennie.

Pennie Johnson’s parents assert damage claims against the professionals involved on the ground that they should have allowed Pennie to intimidate them into acting contrary to their medical opinions; that is, the intended victim of intimidation by threat of suicide must either accept being a victim or pay damages when the threat may merely seem (but cannot be known) to have been carried out. I would hold that threats of suicide cannot enslave the intended victim to either submission or damages — especially threats that have been “empty” for ten years. I would affirm the trial court’s conclusion that the asserted claim is patently without merit.

. Tex. Const, art. 1, § 17.

. Tex.Civ.Prac. & Rem.Code Ann. § 101.021(a) (Vernon 1986).