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.