COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
MEMORANDUM
OPINION Bernardo Tarin-Godoy, M.D.,
appeals the trial court=s denial of his motion for
summary judgment. We
affirm. FACTUAL AND PROCEDURAL
BACKGROUND Tarin is the medical director
of Life Management Center for MH/MR Services (The Center), which operates
the El Paso Psychiatric Center (EPPC). Cristina Cruz, M.D., had courtesy
staff status at EPPC. In
August 1998, Tarin suspended Cruz pending an investigation into whether
she abandoned a patient. The
suspension was lifted the following month, and Cruz was placed on six
months=
probation. Thereafter, Cruz brought this
suit against Tarin, The Center, and two other officials. She sought a declaratory
judgment that her suspension and probation violated EPPC=s bylaws and various federal
and state statutes and she requested that the references to the suspension
and probation be removed from her record. In addition to the declaratory
judgment claim, Cruz pleaded three tort claims--defamation, invasion of
privacy, and intentional infliction of emotional distress. In the defamation claim, she
alleged that Tarin and other Center officials slandered her by stating
that she had abandoned a patient and that Tarin also slandered her by
stating that she needed to be escorted out of EPPC when he suspended
her. In the invasion of
privacy claim, she alleged that before her suspension, in April 1998, The
Center and Center officials released her confidential personnel record to
third parties. In the
intentional infliction of emotional distress claim, she alleged that the
defendants caused her severe emotional distress by stating that she had
abandoned a patient, ordering her removed from EPPC, and releasing her
confidential personnel record. Tarin filed a motion for
summary judgment, arguing that Cruz=s defamation and intentional
infliction of emotional distress claims are barred by sovereign and
official immunity. The trial
court denied the motion, and this appeal followed. See Tex. Civ. Prac. & Rem. Code
Ann. ' 51.014(a)(5) (Vernon Supp.
2004). STANDARD OF
REVIEW In reviewing the denial of a
summary judgment, we apply the same standard that we apply when a summary
judgment has been granted.
El Paso County v. Ontiveros, 36 S.W.3d 711, 714-15 (Tex.
App.--El Paso 2001, no pet.).
The movant has the burden of showing that there is no genuine issue
of material fact and that he is entitled to judgment as a matter of
law. Id. at 715. In deciding whether there is a
disputed material fact, we take as true all evidence favorable to the
nonmovant and indulge every reasonable inference in her favor. Id. SOVEREIGN
IMMUNITY Governmental employees who are
sued in their official capacity may raise the defense of sovereign
immunity. Battin v.
Samaniego, 23 S.W.3d 183, 186 (Tex. App.--El Paso 2000, pet.
denied). Sovereign immunity
is an affirmative defense.
Ontiveros, 36 S.W.3d at 715. Therefore, to prevail on this
defense at the summary judgment stage, Tarin must provide evidence that
The Center is a governmental unit that is entitled to sovereign
immunity. Id.;
Brooks v. Ctr. for Healthcare Servs., 981 S.W.2d 279, 281, 283-84
(Tex. App.--San Antonio 1998, no pet.). To establish his entitlement to
sovereign immunity, Tarin relies on Marroquin v. Life Management Center
for MH/MR Services, 927 S.W.2d 228 (Tex. App.--El Paso 1996, writ
dism=d w.o.j.). In Marroquin, the plaintiff
appealed a summary judgment granted in The Center=s favor. 927 S.W.2d at 229. We stated that ALMC is a governmental unit as
defined by Tex. Civ. Prac. &
Rem. Code Ann. ' 101.001 . . . .@ Id. But we also stated,
ABoth parties agree that LMC is
a unit of government entitled to assert the doctrine of sovereign
immunity.@ Id. at 230. Thus, LMC=s status as a governmental unit
was not an issue in that case.
In this case, unlike in Marroquin, the plaintiff does not
agree that The Center is a governmental unit entitled to sovereign
immunity. Therefore,
Marroquin is not controlling. Tarin also relies on his own
affidavit and an affidavit by Jonathan Lucas. Tarin=s affidavit states that he is
Athe Medical Director of Life
Management Center for MH/MR Services (hereinafter >LMC=)@ and that ALMC was operating or in charge
of the El Paso Psychiatric Center@ when the events giving rise to
this suit occurred. (Emphasis
added.) Lucas=s affidavit
states: I am the Interim Chief Executive Officer of
Life Management Center for MH/MR Services. Life Management Center is a
governmental entity. It was
created by an interlocal agreement between and among other governmental
entities. A true and correct
copy of the interlocal agreement establishing Life Management
Center is attached to this instrument. (Emphasis
added.) The attached interlocal
agreement between the City of El Paso, the County of El Paso, and
ALife Management
Center@ notes that the City and County
previously established the El Paso Center for Mental Health and Mental
Retardation, which later changed its name to ALife Management
Center.@ The agreement provides, pursuant
to statutory authority, that A[t]he City and the County
hereby mutually establish a community mental health and mental retardation
center, which will provide mental health and mental retardation services,
to be known as Life Management Center.@ The statutory authority for
establishing a community mental health and mental retardation center is
currently found in Chapter 534 of the Health and Safety Code, which
provides that such a center is a governmental unit as defined by the Texas
Tort Claims Act. See
Tex. Civ. Prac. & Rem.
Code Ann. ' 101.002 (Vernon 1997); Tex. Health & Safety Code
Ann. ' 534.001(c)(1) (Vernon
2003). The record thus contains
uncontroverted evidence that EPPC was operated by ALife Management Center for
MH/MR Services@ and that ALife Management
Center@ is a governmental unit that is
entitled to sovereign immunity.
But there is no summary judgment evidence that ALife Management Center for
MH/MR Services@ and ALife Management
Center@ are one and the same. Given our standard of review at
the summary judgment stage, we cannot infer that the two entities are one
and the same. Because Tarin
thus did not prove that The Center is a governmental unit that is entitled
to sovereign immunity, the trial court did not err in denying his motion
for summary judgment based on sovereign immunity. OFFICIAL
IMMUNITY Governmental employees are
entitled to official immunity for acts that are: (1) discretionary; (2) performed
in good faith; and (3) within the scope of their official duties. City of Lancaster v.
Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Like sovereign immunity, official
immunity is an affirmative defense.
Id.; Ontiveros, 36 S.W.3d at 715. Therefore, Tarin
had the burden of establishing all the elements of official immunity. Ontiveros, 36 S.W.3d at
715; City of El Paso v. Higginbotham, 993 S.W.2d 819, 822 (Tex.
App.--El Paso 1999, no pet.). To establish good faith, the
summary judgment evidence must show that a reasonably prudent official,
under the same or similar circumstances, could have believed that the
action taken was justified in light of a clear risk of harm. Chambers, 883 S.W.2d at
656; Ontiveros, 36 S.W.3d at 715; Higginbotham, 993 S.W.2d
at 825. The official does not
have to prove either that it would have been unreasonable to take a
different course of action or that all reasonably prudent officials would
have acted as he did.
Chambers, 883 S.W.2d at 657; Higginbotham, 993 S.W.2d
at 825. To evaluate whether
an official has established good faith, we consider whether a reasonable
official could have believed that the challenged conduct was lawful in
light of clearly established law and the information possessed by the
official at the time of the conduct.
Chambers, 883 S.W.2d at 656. Thus, the good faith standard
protects all but the plainly incompetent or those who knowingly violate
the law. Id.;
Colbert v. Hollis, 102 S.W.3d 445, 448 (Tex. App.--Dallas 2003, no
pet.). If the government official
produces evidence to show that he met the good faith standard, the
plaintiff faces an elevated standard of proof to defeat summary
judgment. Chambers,
883 S.W.2d at 656. The
plaintiff must do more than show that a reasonably prudent official could
have taken a different action; she must show that no reasonable person in
the official=s position could have thought
the facts were such that they justified his acts. Chambers, 883 S.W.2d at
657. Tarin=s Summary Judgment
Proof With these principles in mind,
we will examine Tarin=s summary judgment proof on the
issue of good faith. We will
also keep in mind that the only claims at issue in this appeal are
Cruz=s claims of defamation and
intentional infliction of emotional distress. Thus, we must evaluate
Tarin=s proof to determine whether he
satisfied the good-faith standard with regard to his statements that Cruz
had abandoned her patient and his decision to have Cruz escorted out of
EPPC. Tarin=s summary judgment proof
consisted of his two affidavits and Lucas=s affidavit. Lucas=s affidavit does not touch on
the good faith issue. Tarin=s First
Affidavit In his first affidavit, Tarin
states that he has been the medical director of The Center since
approximately June 1998. As
medical director, he is a member of its medical peer review
committee. That committee
Aevaluated the merits of
complaints levied against Dr. Cruz regarding patient care and made
determinations and recommendations regarding those complaints.@ Tarin suspended Cruz in accordance
with The Center=s bylaws, pending an
investigation of her alleged abandonment of a patient. The committee subsequently placed
Cruz on probationary status without affecting her
privileges. Tarin=s Second
Affidavit In his second affidavit, Tarin
states: In August, 1998, a series of events or
circumstances . . . created concerns as to whether or not Dr. Cruz had
abandoned a particular patient for a number of days between August 1-20,
1998. Specifically, there
were concerns whether Dr. Cruz had failed to attend to her patient during
all or a portion of the time between August 1-20, 1998, and whether or not
Dr. Cruz had failed to secure a Abackup@ physician to attend to the patient during her
absence. Tarin further states that the
Aconcerns of abandonment were
brought to [his] attention@ by other physicians. He suspended Cruz on August 20,
1998 Abecause of these concerns of
abandonment, and based on the conversations with physicians who ultimately
attended to the patient in Dr. Cruz=s absence, and based on a
review of the particular patient=s medical records . . .
.@ After the suspension,
Aan investigation was
conducted,@ and the medical staff
executive committee held a special meeting to conduct a peer review of the
abandonment allegation.
AThe results of the
investigation were reported at the special meeting.@ Then, A[a]s a result of the peer
review meeting, a decision was made to recommend that . . . Cruz retain
her privileges, but that she be placed on probation for a six-month
period.@ On September 4, 1998,
Tarin informed Cruz that her suspension was lifted, effective at 6 p.m. on
the previous day. Cruz was
later informed of the terms of her probation. We will quote the last
paragraphs of the affidavit in full: At all times in question, my actions, including
suspending Dr. Cruz and investigating the complaint of abandonment, were
done while acting within the course and scope of my employment as Medical
Director of LMC. I took such
action (suspended Dr. Cruz and conducted an investigation) because, in my
judgment, it was in the best interest of patient health and safety and the
continued operation of LMC, since there had been an apparent violation of
the bylaws, rules and regulations and policies of LMC or the medical
staff. More specifically,
based on information before me, I had cause to question the care or
treatment of one of Dr. Cruz=s patients and the management of the
patient=s case.
I also had cause to question whether or not there had been
violations of the bylaws or policies of LMC, and/or the bylaws, rules and
regulations of the medical staff relating to medical activity. I also had cause to question
certain actions or omissions of Dr. Cruz which could be detrimental to the
health or welfare of the patient.
I, in conjunction with the Medical Staff Executive Committee,
suspended Dr. Cruz=s privileges, pending an investigation, based on
the information obtained and my judgment that there may have been patient
abandonment, and that a suspension was necessary for the protection of LMC
and EPPC patients. All statements made and questions asked by me
occurred within the context and confines of the suspension and
investigation, and were made in my best judgment as to what was
appropriate based on my personal observations, review of the medical
records, and on reports received from other doctors or medical
personnel.
I have been a medical director for 13 years. From my experience as a Medical
Director, I have become aware of how medical directors in general would
have proceeded under the same or similar circumstances. At all times in question, I
conducted myself as a reasonable, prudent medical director in charge of a
psychiatric medical facility such as LMC. Under the same or similar
circumstances, a reasonable and prudent medical director could have
believed the actions taken by me, and the statements made and questions
asked by me, were lawful, reasonable and prudent based on the information
possessed at the time. Any
and all statements, questions or actions made by me were discretionary
functions, were performed in good faith, and were within my scope and
authority as Medical Director of LMC. Analysis In her summary judgment
response, Cruz argued that Tarin=s affidavits are conclusory and
are not clear, positive, direct, credible, and free from contradictions
and inconsistencies. We
agree. A summary judgment may
not be based on affidavits of interested or expert witnesses unless the
witnesses= testimony is Aclear, positive and direct,
otherwise credible and free from contradictions and inconsistences, and
could have been readily controverted.@ Tex. R. Civ. P. 166a(c);
Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.
App.--Texarkana 2000, no pet.).
Moreover, conclusory statements in affidavits are not competent
evidence to support a summary judgment. Haynes, 35 S.W.3d at
178. A conclusory statement
is one that does not provide the underlying facts to support the
conclusion. Id.;
see also Hess v. McLean Feedyard, Inc., 59 S.W.3d 679, 686 (Tex.
App.--Amarillo 2000, pet. denied) (stating that when an expert=s affidavit fails to provide
supporting facts, his bare conclusion is not
evidence). Tarin=s affidavits are replete with
broad, general, and conclusory statements with no specifics or factual
detail. Examples are: Aa series of events or
circumstances . . . created concerns;@ Aan investigation was
conducted;@ AI had cause to question the
care or treatment of one of Dr. Cruz=s patients and the management
of the patient=s case;@ AI . . . had cause to question
certain actions or omissions of Dr. Cruz which could be detrimental to the
health or welfare of the patient;@ and AI . . . suspended Dr.
Cruz=s privileges, pending an
investigation, based on the information obtained and my judgment that
there may have been patient abandonment, and that a suspension was
necessary for the protection of LMC and EPPC patients.@ Furthermore, Tarin states that his
investigation uncovered possible violations of LMC=s bylaws, policies, rules, and
regulations, but does not identify the provisions that were violated. These statements are insufficient
to establish good faith.
Cf. Haynes, 35 S.W.3d at 178 (defendant=s statements that she decided
to fire plaintiff Abecause of her poor and
unacceptable behavior@ and that she based her
decision on another employee=s recommendation and her own
observations of plaintiff were not readily
controvertible). Although the last paragraph of
the second affidavit contains language that tracks the good-faith standard, such
language is conclusory and insufficient to establish good faith unless
substantiated by supporting facts.
See Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex.
1997); Vela v. Rocha, 52 S.W.3d 398, 405 (Tex. App.--Corpus Christi
2001, no pet.). The preceding
paragraph, in which Tarin states that he used his Abest judgment,@ is likewise conclusory. See Perry v. Greanias, 95
S.W.3d 683, 697 n.5 (Tex. App.--Houston [1st Dist.] 2002, pet.
denied). We therefore conclude that
Tarin=s summary judgment proof failed
to establish good faith as a matter of law. Thus, the burden never shifted to
Cruz to present controverting proof.
See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678 (Tex. 1979); Colbert, 102 S.W.3d at 449;
Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 213 (Tex.
App.--Houston [14th Dist.] 1986, no writ). Further, for the reasons explained
below, even if the burden did shift to Cruz, we conclude that her proof
created a fact question on good faith. Cruz=s summary judgment proof
included Tarin=s deposition and her own
affidavit. Cruz=s Summary Judgment
Proof Tarin=s Deposition Tarin testified that he was on
vacation during the first part of August 1998. On August 20, about a week after
he returned from vacation, Dr. Wilcox informed him that Cruz had left on
vacation without securing a backup physician to continue the
patient=s care. The term Asecuring backup@ means having an order entered
into the record indicating the physician who is going to continue a
patient=s care while the
patient=s physician is
unavailable. To secure a
backup, a physician must first find another physician to agree to be
backup and then leave an order in the chart reflecting the backup
physician=s name. Tarin investigated the matter
by talking to Dr. Wilcox and Dr. Ramirez. He did not speak with the patient
or Cruz. Tarin also reviewed
the patient=s medical record, including the
physician=s notes, the progress notes,
the nurses= notes, the
physician=s orders, documents filed
regarding the involuntary commitment of the patient, and some of the
patient=s psychological tests and
assessments. The patient=s record reflected that Ramirez
covered for Cruz between August 1 and August 3. But Ramirez told Tarin that he was
Aforced@ to cover for Cruz because Cruz
left. Tarin testified that
Wilcox also covered for Cruz Aunwillingly.@ The record revealed that Cruz was
in court with the patient on August 17 and that she participated in a
treatment team meeting on August 19.
But according to Tarin, treatment must be done on a one-to-one
basis and must be reflected in a progress note in the records. There was no such progress note
for August 19. Tarin
acknowledged that it was permissible to write a progress note a day after
the physician provides treatment to a patient. When Tarin informed Cruz of her
suspension, only he and Cruz were present. Although he did not give her
an opportunity to see the patient, he did not remember her asking to see
the patient or his record. He
also did not remember asking anyone to escort her out of the unit, and he
was not aware that she was escorted out. He did not allow her to access the
patient=s medical record because he was
concerned that she might attempt to alter the record. He later informed the review
committee that Cruz abandoned her patient from August 1 to August 19. But Tarin acknowledged that the
patient=s medical record reflected that
Cruz saw the patient on August 1. Tarin testified that he
suspended Cruz because he was concerned with patient care and safety. He explained that if a physician
abandons a patient without securing a backup or informing the patient, the
patient=s treatment will
suffer. A substantial part of
Tarin=s deposition was devoted to the
question of whether the patient was competent and whether he or his
parents could terminate the physician-patient relationship between the
patient and Cruz. Tarin was
Anot sure@ if the patient had a guardian,
but he believed that the patient did not and that he was consenting for
his own treatment. Tarin
recalled a note by Dr. Cruz in the patient=s records, stating that the
patient had Aborderline intellectual
functioning,@ which means that he was not
mentally retarded. Tarin
remembered another note in the record stating that the patient=s father had terminated the
physician-patient relationship.
But Tarin believed that the patient was an adult and was not
declared incompetent:
AAs far as I understand, he did
not have a guardian, and so the relationship can only be terminated by the
patient.@ His parents could not terminate
the relationship unless the patient had been declared incompetent in a
court of law. Cruz=s Affidavit[1] In her affidavit, Cruz states
that she treated the patient through August 2. On that
date: I was advised by the nursing staff . . . that the
father of the patient had instructed the staff that my services were no
longer required. I asked the
staff to document the Father=s wishes and asked that Dr. Arturo Ramirez . . .
be notified. I later called
the Center to confirm that another physician would be caring for the
patient and learned that Dr. James Wilcox would be caring for the
patient. Cruz also states that the
patient is Abelow the 1st percentile in
functional domains [and that] [t]his means that 99% of the population
processes data better than the patient.@ The patient=s mental age using Bender
Gestalt was less than seven, even though his chronological age was over
eighteen. From these facts,
Cruz concludes, based on reasonable medical probability, that the patient
is retarded and not capable of giving informed consent. On August 17, she and the patient
attended a court hearing at which Wilcox testified that the patient was
incompetent. On the same day,
Wilcox asked Cruz to resume the patient=s care, and she agreed to do
so. The court appointed a
guardian for the patient. On
August 18, Cruz attended a treatment care conference with the patient and
his parents. On August 19,
she saw the patient and made a notation in his medical record. On August 20, Tarin advised
her that her privileges were being immediately suspended. Tarin prevented her
from seeing the patient or his medical record. He asked Aa staff member@ to escort her from the
facility and the staff member did so. She was not interviewed or
permitted to participate in the investigation into the alleged
abandonment. Cruz was not aware of any
problems in getting another physician to take over the patient=s care. The patient=s medical record shows that the
patient=s condition did not change
between August 1 and August 20.
Cruz concludes, AI did not abandon the patient
in question as the patient-physician relationship had been terminated by
the patient=s father.@ Analysis Summary judgment is
inappropriate if the material facts relied upon to support good faith are
in dispute. See Kistner v.
Pfannstiel, 107 S.W.3d 7, 12 (Tex. App.--San Antonio 2002, no pet.);
Victory v. Bills, 897 S.W.2d 506, 509 (Tex. App.--El Paso 1995, no
writ). Cruz=s summary judgment evidence
reveals a dispute regarding whether Tarin instructed the staff to escort
Cruz out of EPPC. Whereas
Tarin testified that he did not remember asking anyone to escort Cruz out
and that he was not aware that she was escorted out, Cruz testified that
Tarin asked a staff member to escort her out and the staff member did
so. This dispute is material
because Cruz=s claims for defamation and
intentional infliction of emotional distress are based in part on the
allegation that Tarin instructed the staff to escort her out. There is no evidence regarding the
reasonableness of this instruction.
This deficiency is sufficient to support the trial
court=s denial of summary judgment.[2] CONCLUSION For the reasons stated herein,
Tarin=s issue on appeal is overruled,
and the trial court=s order denying
Tarin=s motion for summary judgment
is affirmed. SUSAN LARSEN, Justice December 11,
2003 Before Panel No.
3 Barajas, C.J., Larsen,
and Chew, JJ. [1]Because Tarin did not file any objections to Cruz=s affidavit, any formal defects in the affidavit are waived. See Tex. R. Civ. P. 166a(f). [2]Cruz=s summary judgment evidence also reveals factual disputes regarding whether the patient was retarded and whether he was capable of consenting for his own treatment, whether Cruz secured a backup, whether she had a physician-patient relationship with the patient, and whether she treated the patient during part of the time that she was alleged to have abandoned him. |