Wendy Kinchen v. Gateway Community Svc. Board , 215 F. App'x 782 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 28, 2006
No. 06-13675 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00115-CV-2
WENDY KINCHEN, individually and as
Personal Representative of Shellie Lee Kinchen Wood,
Plaintiff-Appellant,
versus
GATEWAY COMMUNITY SERVICE BOARD,
GLYNN BRUNSWICK MEMORIAL HOSPITAL
AUTHORITY, d.b.a Camden Medical Center,
JARRETT B. BOLIN, MARGRET HURLEY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 28, 2006)
Before TJOFLAT, HULL and HILL, Circuit Judges.
PER CURIAM:
Wendy Kinchen, as personal representative of her daughter Shellie Lee
Kinchen Wood, sued Gateway Community Service Board (“Gateway”), Glynn-
Brunswick Memorial Hospital Authority, doing business as Camden Medical
Center (“CMC”), Jarrett B. Bolin, and Margaret Hurley alleging negligence in the
treatment of Wood.1 The claim is that the defendants failed to properly diagnose
and treat Wood on the night of May 9, 2002, when she was taken there after her
boyfriend called 911 and reported that she was violent and had threatened suicide.
The district court granted summary judgment to the defendants and this appeal
followed.
I.
Wood and her boyfriend Robert Sovilla were arguing the night of May 9,
2002. Sovilla claims that Wood had his pistol, placed the gun in her mouth and
pulled the trigger, but the gun misfired. After Sovilla took the weapon from her,
Wood grabbed a knife from the kitchen in an attempt to harm herself. Sovilla
called 911 and informed the dispatcher that Wood had attempted suicide.
The police took Wood to CMC for evaluation. Upon her arrival at the
hospital, Nurse Margaret Hurley performed a triage to assess the urgency of
1
Jurisdiction is predicated upon diversity as Kinchen is a Florida resident and the
defendants are citizens of Georgia.
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Wood’s medical condition. Hurley took her vital signs and noted Wood’s allergies
and medications, but Wood denied any suicidal behavior.
Hurley called Dr. Hal London, an independent contractor at CMC, who
ordered Wood to be evaluated by a licensed mental health provider. Jarrett Bolin,
a licensed counselor employed by Gateway was called around 1:00 a.m. and he
arrived for the evaluation about 2:00 a.m. He evaluated Wood for about an hour.
Wood persisted in her denial of any suicidal behavior. Bolin reported that her risk
of harm was low, but that she was depressed and sad due to her breakup with her
boyfriend. He concluded that she seemed calm, fully oriented, cooperative, and
that she had good impulse control and was not likely to commit suicide. He
recommended that she not be kept under observation at the hospital against her
will. Based upon Bolin’s recommendation, Dr. London ordered Wood released.
Two days later, Wood committed suicide by shooting herself in the head.
Kinchen’s complaint alleges that Wood should have been committed to
CMC involuntarily for further evaluation on the night of May 9 and that defendants
were negligent in their failure to do so. Defendants assert various defenses. The
district court granted summary judgment to each of them.
We have reviewed the record and the argument of counsel de novo. Nat’l
Fire Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260, 1268 (11 th Cir.
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2003). For the following reasons, we shall affirm.
II.
1. Gateway enjoys sovereign immunity from this lawsuit.
Gateway is a community service board created under state law, which makes
it a Georgia state agency. Ga. Code Ann. § 37-26 (2005 Supp.). In 1981, the
Georgia constitution was amended to provide sovereign immunity to all state
agencies. Donaldson v. Dep’t of Transp., 262 Ga. 49, 49-50 (1992). Since
Georgia has not waived its immunity in this lawsuit, Gateway is immune from this
lawsuit.
2. Bolin has qualified official from this lawsuit.
Official immunity offers “limited protection from suit to governmental
officers and employees.” Gilbert v. Richardson, 264 Ga. 744, 750 (1994). In
1990, the Georgia Constitution was amended to provide that state employees may
not be sued for negligence in the performance of their official functions unless they
act with actual malice. Ga. Const., Art., I & II, ¶ IX(d) (1998).
The evaluation of Wood for suicidal tendencies, and the decision whether to
commit her for involuntary treatment are covered by this provision because Bolin
is a state employee and his evaluation of Wood was an official function.2 Since
2
The evaluation was not a “ministerial” function, for which actual malice is not required,
because medical evaluation clearly calls for the exercise of judgment.
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there is no record evidence of malice, Bolin is entitled to official immunity from
this lawsuit.
3. CMC is not liable for the actions of its independent contractors.
Neither London nor Bolin is an employee of CMC. Both are independent
contractors, hired to perform certain functions as needed. CMC has no liability for
independent contractors’ actions. Hosp. Auth. of Hall County v. Adams, 110 Ga.
App. 848, 853 (1964). Nor was either man the ostensible agent of CMC, for the
purposes of this lawsuit. In order for CMC to be liable under such an agency
theory, it must have represented to Wood that London and Bolin were its
employees and she must have justifiably relied on the skill of the putative
employee. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 510 (1987).
Kinchen cannot establish that Wood justifiably relied upon the professional
skill of either London or Bolin. She neither went to CMC voluntarily, nor sought
out the assistance of London or Bolin. On the contrary, she repeatedly and
unambiguously denied being suicidal or having any other medical problem for
which she sought their assistance. She did not accept treatment from either of
them. In sum, she did not rely upon their professional skill in any way. Under
these circumstances, CMC is not liable on a theory of ostensible agency.
4. Hurley is not liable for negligence upon the undisputed record facts.
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Kinchen has pointed to no facts nor suggested any theory on which Nurse
Hurley may be held liable for negligence in her care of Wood. Hurley performed
the triage – vital signs and medical history – on Wood, but that was the extent of
her involvement with Wood. Furthermore, the only evidence in the record – the
affidavit of expert nurse Donna Lee Bledsoe, a board-certified adult psychiatric
registered nurse – is that Hurley’s actions conformed to the standard of care.
Because there is no evidence of negligence in the record to support Kinchen’s
claim, and the evidence there is that Hurley was not negligent, Hurley is entitled to
summary judgment.
III.
The defendants are entitled to summary judgment and the judgment of the
district court is hereby
AFFIRMED.
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