Titus Regional Medical Center and Steve Jacobson, Individually v. Joseph T. Tretta, D.O. ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00060-CV

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TITUS REGIONAL MEDICAL CENTER AND

STEVE JACOBSON, INDIVIDUALLY, Appellants

V.

JOSEPH T. TRETTA, D.O., Appellee

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On Appeal from the 276th Judicial District Court

Titus County, Texas

Trial Court No. 29692

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Before Ross, Carter, and Cornelius,* JJ.

Opinion by Justice Cornelius

*William J. Cornelius, C.J., Retired, Sitting by Assignment

O P I N I O N

          This is a suit by Joseph T. Tretta, D.O., against Titus Regional Medical Center and Steve Jacobson, individually. In his amended petition, Tretta raised numerous claims sounding in tort, breach of contract, defamation, conspiracy, and statutory violations that allegedly damaged his professional and personal reputation, his business, and his prospects for future employment. The principal basis for Tretta's suit was his allegation that, when one of his patients died after he performed endoscopic sinus surgery on her, Jacobson and the Hospital set out to damage Tretta's professional practice and reputation and force him to leave the hospital through a conspiracy to improperly investigate him for professional incompetence, and falsely report to the National Practitioner Data Bank (NPDB) that he resigned from the Hospital while he was being investigated.

          Jacobson and the Hospital filed motions to dismiss and a motion for summary judgment based on claims that Jacobson was entitled to official immunity as to all claims against him, and the Hospital was entitled to sovereign immunity from both suit and liability as to contractual claims against it. The trial court granted the motion for summary judgment and plea to dismiss sustaining Jacobson's claim of official immunity as to the tort claims, but denied the motion and plea as to all other claims. The trial court denied the Hospital's motion for summary judgment for sovereign immunity on the contract, declaratory, and injunctive relief claims. Both Jacobson and the Hospital appeal pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5), (8) (Vernon Supp. 2005).

          We reverse the trial court's order denying Jacobson's motion for summary judgment as to all claims other than tort claims, and affirm the trial court's judgment insofar as it grants Jacobson judgment on the tort claims, and we affirm the trial court's denial of the Hospital's motion for summary judgment on the contract, declaratory, and injunctive relief claims.

          When a defendant moves for summary judgment on the basis of an affirmative defense such as immunity, the defendant must prove by competent summary judgment evidence each element of the defense as a matter of law. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex. 1984).

          Official immunity is an affirmative defense that protects an officer or employee of a governmental entity from liability when that officer or employee (1) acts in the scope of his employment, (2) performs discretionary duties, and (3) acts in good faith. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000); Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); Johnson v. Campbell, 142 S.W.3d 592, 594 (Tex. App.—Texarkana 2004, pet. denied). If the officer or employee acts within the scope of his authority in the performance of discretionary duties and acts in good faith, he is entitled to official immunity even though his acts are negligent or against the governmental entity's regulations or policy. City of Lancaster v. Chambers, 883 S.W.2d at 655; Johnson v. Campbell, 142 S.W.3d at 594.

          Sovereign immunity has two components: (1) immunity from suit, and (2) immunity from liability. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853–54 (Tex. 2002); Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d 511, 513 (Tex. App.—Texarkana 2005, no pet.). Generally, the State's immunity from liability is waived when the State enters into a contract with a private party or entity. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). The State is amenable to suit if it waives its immunity from suit by giving express consent to the suit. Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d at 513.

          In considering whether Jacobson's summary judgment evidence conclusively proved he is entitled to official immunity, we first determine if he, as chief executive officer (CEO) and administrator of the Hospital, is entitled to official immunity if he is otherwise qualified. The summary judgment evidence shows that the Hospital is a governmental entity, but it also shows that Jacobson was not an employee of the Hospital. Instead, he was an employee of Quorum, a hospital staffing company that by contract provided him to the Hospital as CEO and administrator. Tretta contends that, because Jacobson was not an employee of the Hospital, he is not entitled to official immunity. We disagree. The majority rule, and we think the better rule, is that official immunity does extend to a private party acting pursuant to a contract with a governmental entity as an official fulfilling statutorily mandated functions. Guerrero v. Tarrant County Mortician Servs., 977 S.W.2d 829, 832 (Tex. App.—Fort Worth 1998, pet. denied); Knowles v. City of Granbury, 953 S.W.2d 19, 24 (Tex. App.—Fort Worth 1997, writ denied); Putthoff v. Ancrum, 934 S.W.2d 164, 169–73 (Tex. App.—Fort Worth 1996, writ denied). To deny official immunity to a person in such circumstances would, in the words of the court in De Vargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 722 (10th Cir. 1988), place defendants "between Scylla and Charybdis—potentially liable either to plaintiffs for obeying the contract, or to governmental bodies for breaching it." Other federal cases support this majority rule. See Eagon v. City of Elk City, Okla., 72 F.3d 1480, 1489–90 (10th Cir. 1996); Williams v. O'Leary, 55 F.3d 320, 323–24 (7th Cir. 1995); Sherman v. Four County Counseling Ctr., 987 F.2d 397 (7th Cir. 1993); Frazier v. Bailey, 957 F.2d 920, 928–29 (1st Cir. 1992); Citrano v. Allen Correctional Ctr., 891 F. Supp. 312, 315–20 (W.D. La. 1995). Tretta relies on our case of GAB Bus. Servs. v. Moore, 829 S.W.2d 345 (Tex. App.—Texarkana 1992, no writ), for a contrary holding. That case, however, is distinguishable. As we noted in our opinion in that case, GAB was a private company providing insurance adjusting services to the State Risk Pool. We noted that GAB was not the agent of the Risk Pool; GAB was not performing uniquely governmental services, but was merely acting as a private adjuster would; and GAB did not act in good faith. The summary judgment evidence here conclusively shows that Jacobson, as the duly appointed CEO and administrator for the Hospital, is entitled to official immunity if his acts meet the other criteria for official immunity.

          We now determine if the summary judgment evidence conclusively shows that Jacobson was acting within the scope of his authority and performing discretionary duties in good faith.

          A person acts within the scope of his authority if he is discharging the duties assigned to him. The fact that an act that forms the basis of a suit was performed improperly or negligently does not take it outside the actor's scope of authority. City of Lancaster v. Chambers, 883 S.W.2d at 658 & n.9.

          If a duty involves personal deliberation, decision, and judgment, it is a discretionary duty. Acts that require specific obedience to orders that must be performed with such precision and certainty that nothing is left to the exercise of discretion or judgment, are ministerial. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); City of Lancaster v. Chambers, 883 S.W.2d at 653–54; Putthoff v. Ancrum, 934 S.W.2d at 170. Mandatory language in a statute or policy does not, of itself, make an act ministerial. Eakle v. Tex. Dep't of Human Servs., 815 S.W.2d 869, 876 (Tex. App.—Austin 1991, writ denied); Austin v. Hale, 711 S.W.2d 64 (Tex. App.—Waco 1986, no pet.). Executives and supervisors of State entities have uniquely discretionary authority. Lowrey v. Univ. of Tex. Med. Branch, 837 S.W.2d 171, 176 (Tex. App.—El Paso 1992, writ denied); Lazaro v. Univ. of Tex. Health Sci. Ctr., 830 S.W.2d 330, 332 (Tex. App.—Houston [14th Dist.] 1992, writ denied). Professionals who conduct or supervise investigations for State entities are performing discretionary acts. Heikkila v. Harris County, 973 S.W.2d 333, 336 (Tex. App.—Tyler 1998, pet. denied).

          Jacobson was the CEO and administrator of the Hospital. The Texas Legislature's Act creating the Titus Regional Hospital District provides that the CEO and administrator shall perform all duties required of him by the Board and "shall supervise all of the work and activities of the district, and have general direction of the affairs of the District, within such limitations as may be prescribed by the Board." The Board of Managers' By-Laws contain exactly the same language defining the CEO's authority. The CEO is an ex-officio member of all medical committees of the Hospital. He is responsible for preparing the agenda for the committee meetings, giving notice to all persons who may be asked or permitted to appear at such meetings, and providing the committee members with whatever evidence and records they may need in their meetings. The CEO attends most committee meetings, but does not vote. He makes periodic reports to the Board and prepares the budget for the District. He is the supervisor of all of the Hospital's employees, and has the authority to hire and terminate any employee for good cause, reporting such action to the Board. Jacobson had the authority and duty to make, and did make, all reports to federal and state authorities, including the NPDB, about the medical services and affairs of the Hospital, and was the Hospital's official representative for that purpose. Tretta testified in his deposition that "everything" had to "go through" Jacobson, and that Jacobson sat in on every committee meeting and he made all the decisions. The By-Laws of the Board of Managers provides that no information relating to a "sentinel event" may be released by anyone except the CEO following consultation with the Board. One of Jacobson's acts that Tretta alleges as a part of Jacobson's conspiracy to damage him is Jacobson's unilateral action in suspending all endoscopic sinus surgeries at the Hospital after Ms. Mary Woods died following surgery performed by Tretta. Jacobson, in his deposition, stated he made the decision to suspend all of those surgeries in order to ensure patient safety until a thorough investigation could be made. This decision by Jacobson obviously was a discretionary act in connection with his general supervisory authority over all of the operations and activities of the Hospital.

          The summary judgment evidence conclusively proves that Jacobson was acting in the scope of his authority and was performing discretionary duties at the time and on the occasions relevant to this action.

          The summary judgment evidence also conclusively proves that Jacobson was acting in good faith when he took the actions on which this suit is based. There is competent summary judgment evidence that other reasonable hospital administrators in Jacobson's position could have reasonably believed that the actions, reports, and statements made by Jacobson were justified. That is the test for good faith in the context of an official immunity claim. City of Lancaster v. Chambers, 883 S.W.2d at 657; Johnson v. Campbell, 142 S.W.3d at 594. The test is an objective one. To avoid summary judgment on the issue of good faith, Tretta must have produced objective summary judgment evidence from a qualified witness who, after reviewing the facts, concludes that no reasonable person in Jacobson's position could have believed Jacobson's actions were justified. There is no summary judgment evidence to that effect in this record.

          Tretta argues there is summary judgment evidence that Jacobson disliked him and deliberately tried to prejudice his position and future at the Hospital. But probative evidence on good faith is limited to objective evidence. Good faith in official immunity cases must be measured against a standard of objective legal reasonableness, without regard to the official's subjective state of mind. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 427 (Tex. 2004); Wadewitz v. Montgomery, 951 S.W.2d at 466.

          The trial court properly denied the Hospital's motion for summary judgment on the basis of sovereign immunity. When a governmental entity enters into a contract with a private person or private entity, it waives its immunity from liability as to claims arising under or pertaining to that contract. Fed. Sign v. Tex. S. Univ., 951 S.W.2d at 405. The Hospital here contracted with Tretta with respect to his services at the Hospital, so it has no sovereign immunity from claims pertaining to that contract. See Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d at 513. The Hospital is not entitled to immunity from suit, because the Legislature's Act creating the Hospital District provides that the Hospital's Board of Managers shall have the power and authority to "sue and be sued." Immunity from suit against a State entity may be waived only if the State has expressly given its consent to be sued. The Texas Supreme Court held in Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970), that statutory language providing that a State entity may "sue and be sued" gives consent to suit and expressly waives the State's immunity from suit. We have followed the Missouri Pacific case in Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d 511; S. Disposal, Inc. v. City of Blossom, 165 S.W.3d 887, 892 n.4 (Tex. App.—Texarkana 2005, no pet.); and City of Texarkana v. City of New Boston, 141 S.W.3d 778, 786–87 (Tex. App.—Texarkana 2004, pet. filed). Some courts have held otherwise, but we choose to continue to follow the Texas Supreme Court decision in Missouri Pacific. We therefore conclude that the summary judgment evidence here shows that the Hospital is not entitled to sovereign immunity either from suit or liability as to claims pertaining to its contract with Tretta.

          Jacobson and the Hospital also contend the trial court erred in overruling their objections numbers 12 and 13 to Tretta's summary judgment evidence. The objections were to allegedly hearsay statements made by Carol Ann Robinson that were repeated by Tretta in his deposition. Robinson was Chief of Medical Records at the Hospital. Consequently, her statements were not hearsay. Tex. R. Evid. 801(e)(2)(D).

          For the reasons stated, we affirm the trial court's order granting Jacobson and the Hospital's motion for summary judgment as to Tretta's tort claims, and we affirm the trial court's order denying the Hospital's motion for summary judgment as to contract, declaratory, and injunctive relief. We reverse the trial court's order denying Jacobson and the Hospital's motion for summary judgment on all remaining claims, and here render summary judgment for Jacobson and the Hospital on all claims based on Jacobson's individual liability.

                                                                           William J. Cornelius

                                                                           Justice*

Date Submitted:      October 19, 2005

Date Decided:         November 21, 2005

*Chief Justice, Retired, Sitting by Assignment

by the child on the tape, of her unusual behavior in trying to encourage Griffith to participate with her in a sexual demonstration, of her actions clearly describing and demonstrating on a couch what happened to her and of knowing it felt good.

An expert witness may not testify that a witness is truthful, but an expert may testify that the child exhibits symptoms consistent with sexual abuse.  Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). The witness may not "cross the line" and testify directly as to the victim's truthfulness, as it does not concern a subject matter on which the testimony of an expert witness could assist the trier of fact. Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993).

To be admissible, expert testimony must "assist" the trier of fact. Tex. R. Evid. 702; Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990). Expert testimony assists the trier of fact when the jury is not qualified to "the best possible degree" to determine intelligently the particular issue without the help of the testimony. Duckett, 797 S.W.2d at 914. But, the expert testimony must aid--not supplant--the jury's decision. Id. Expert testimony does not assist the jury if it constitutes "a direct opinion on the truthfulness" of a child complainant's allegations. Yount, 872 S.W.2d at 708.

The evidence here does more than describe characteristics common among sexually abused children. Wagoner was asked about factors to determine if a child was "telling the truth." After describing the factors for truthfulness, the witness was asked, "How does [the victim] fit . . . into what those factors are?" The witness then testified she exhibited such factors. McCarty likewise testified over objection as to factors that indicated to her the child exhibited some indicia of truthfulness in the interview.

The witnesses here were asked to comment directly on factors to determine if the child was telling the truth. These observations, such as age, level of development, sexual knowledge, opportunity, and access, may all be judged and determined by a jury without the help of an expert.

We find that the testimony regarding the factors for truthfulness observed by the experts directly comment as to the truthfulness of the child. As such, it does not assist the jury and is inadmissible. Tex. R. Evid. 702.

IV. Medical History Testimony

Edwards further urges that the trial court erred by allowing the testimony of Geri Lawson, the sexual assault nurse examiner, concerning statements the child made to her during a medical examination.

The evidence shows the child was taken to the nurse for a medical examination at the hospital. Rule 803(4) of the Texas Rules of Evidence provides an exception to the hearsay rule for "statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Tex. R. Evid. 803(4); Mendoza v. State, 69 S.W.3d 628, 633 (Tex. App.-Corpus Christi 2002, pet. ref'd); Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.-Fort Worth 1999, pet. ref'd); Torres v. State, 807 S.W.2d 884, 886-87 (Tex. App.-Corpus Christi 1991, pet. ref'd) (finding emergency room nurse could testify as to victim's statement under Rule 803(4) even though nurse was also collecting evidence).

Edwards challenges this evidence on the basis that it violates her right of confrontation under the Sixth Amendment to the United States Constitution. She cites Lopez v. State, 18 S.W.3d 220 (Tex. Crim. App. 2000), for the proposition that the Confrontation Clause will prevail if there is a conflict between it and the Rules of Evidence. In Lopez, the defendant was attempting to present evidence that the victim had previously made false accusations of sexual assault against other individuals. The State objected under Rule 608(b) of the Texas Rules of Evidence. The issue was whether the Confrontation Clause demanded that the evidence of the complainant's prior false allegations of abuse against a person other than the defendant was admissible despite Rule 608(b)'s proscription against admitting specific instances of conduct. Id. at 222-23. The Texas Court of Criminal Appeals stated that "the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude." Id. at 225. The final conclusion of the court was that such evidence was inadmissible and the Confrontation Clause did not mandate its admissibility. Id. at 226.

In this case, Edwards is arguing for the exclusion of evidence rather than its admissibility, as in Lopez.

As we have previously discussed, not all out-of-court statements are prohibited by the Confrontation Clause. Wright, 497 U.S. 805. If the statement does fall within a firmly rooted hearsay exception, then reliability can be inferred without more. There is no doubt the exception for statements made for purposes of medical diagnosis or treatment is firmly rooted. White, 502 U.S. at 356 n.8; United States v. Sumner, 204 F.3d 1182 (8th Cir. 2000).

As the medical diagnosis hearsay exception is well established as a firmly rooted exception to the hearsay rule, admission of this evidence does not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. The testimony of the sexual assault nurse examiner was properly admitted.

We reverse the judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

Jack Carter

Justice

Date Submitted: March 26, 2003

Date Decided: April 22, 2003

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OPINION ON MOTION FOR REHEARING

The State urges this Court to remand the case to the trial court for a hearing on the unavailability of the child complainant and to reconsider our finding that the expert witness testimony was inadmissible or, alternatively, to conduct a harm analysis concerning the expert witness testimony.

The State cites the cases of Hightower v. State, 822 S.W.2d 48 (Tex. Crim. App. 1991), and Driggers v. State, 940 S.W.2d 699 (Tex. App.-Texarkana 1996, pet. ref'd), in support of its motion to remand to the trial court for a hearing on the issue of the unavailability of the child complainant to testify.

In Hightower, the issue was whether the trial court had complied with the constitutional requirements of Maryland v. Craig, 497 U.S. 836 (1990), requiring a court to hear evidence and make specific findings to authorize closed-circuit television testimony by a child. The Texas Court of Criminal Appeals stated the trial court had not complied with these requirements, but also noted the trial court did not have the benefit of the Craig opinion before it proceeded.  Hightower, 822 S.W.2d at 51. Therefore, the Texas Court of Criminal Appeals abated the appeal and authorized the trial court to conduct such a hearing and enter findings and conclusions.

In Driggers, the trial court had conducted an evidentiary hearing to determine whether to allow closed-circuit testimony of a child. The trial court granted the motion. This Court concluded such oral finding by the court was inadequate and abated the case for more specific findings.

We find those two cases altogether different from the case at bar. Unlike Hightower, the law did not change in this case after trial. The statutory requirement for the court to make a determination of unavailability of a child before allowing an alternate method for the child's testimony has been in effect in this state for many years. This statutory requirement has not been fulfilled, and the trial court abused its discretion by admitting evidence without complying with the statute.

In Driggers, the trial court had conducted an evidentiary hearing and made a determination. This is also different from the present case, where no evidence was presented to the court and no hearing was conducted. Here, there is nothing on which to base a determination by the trial court that the child was unavailable.

As we do not believe it is appropriate at this late date to abate this appeal, it is unnecessary to conduct a harm analysis concerning the expert testimony. We have specified the inadmissible portions of the testimony of the expert witnesses to assist in any further proceedings.

The State's motion for rehearing is denied.

Jack Carter

Justice

Date: May 14, 2003

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1. Tex. Code Crim. Proc. Ann. art. 38.071 (Vernon Supp. 2003).

2. In Idaho v. Wright, the Court determined that it was appropriate to apply the same analysis to such evidence as to other types of hearsay and applied the "indicia of reliability" requirement to determine whether a firmly rooted hearsay exception allowed its admission, or alternatively, if the evidence was supported by a showing of particularized guarantees of trustworthiness. 497 U.S. 805, 816 (1990).

3. The analysis of procedures for in-court testimony such as closed circuit television should be conducted in accordance with Maryland v. Craig, 497 U.S. 836, 845 (1990), and Coy v. Iowa, 487 U.S. 1012, 1019 (1988), requiring the witness to be unavailable to authorize such modified in-court testimony; whereas, in White v. Illinois, the court determined it is not necessary to prove a child needs protection of his or her physical or psychological well-being as a prerequisite to introducing statements the child made out of court. 502 U.S. 346, 358-59 (1992).