El Paso County v. Dorado, Jessie, Individually and as Mother and Next Friend of Brianna Alexis Miranda, a Minor and on Behalf of the Estate of Eduardo Miranda a/k/a Eduardo Miranda Duarte, Deceased--Appeal from 120th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE COUNTY OF EL PASO, )

)

Appellant, )

) No. 08-01-00182-CV

v. )

) Appeal from the

JESSIE DORADO, Individually and as Mother )

and Next Friend of BRIANNA ALEXIS ) 120th District Court

MIRANDA, A Minor and on Behalf of the )

Estate of EDUARDO MIRANDA a/k/a ) of El Paso County, Texas

EDUARDO MIRANDA DUARTE, Deceased, )

) (TC# 97-2506)

Appellees. )

)

)

O P I N I O N

This is an appeal of a partial denial of a motion for summary judgment based on the official immunity status of four employees of the El Paso County Detention Facility. The individuals were all medical personnel that treated Mr. Eduardo Miranda Duarte (AMr. Miranda@).

Mr. Miranda was arrested for outstanding traffic warrants on the evening of February 27, 1997. He was booked into the El Paso County Detention Center in the early hours of February 28, 1997. At the time of his booking, Mr. Miranda informed jail personnel he had a history of convulsions. He did not inform them, however, that he was under medication for the condition.

On March 1, 1997, Mr. Miranda told Nurse Juan Carlos Dominguez that he was under physician=s orders to take two milligrams Ativan each night to control his seizures. Nurse Dominguez confirmed the prescription and contacted Doctor Harold Block for further instructions. Dr. Harold Block gave orders to give Mr. Miranda his prescribed medications, which was done. The next night, Nurse Raul Tellez was responsible for administering Mr. Miranda=s prescription. Nurse Tellez summoned Mr. Miranda around 8 p.m., but Mr. Miranda did not respond. As a result, he did not receive his prescribed medication. Around 11:30 p.m., Mr. Miranda suffered a seizure and Nurses Junette Davis and Vivian Perez responded to the medical assistance call. Nurse Davis stayed with Mr. Miranda while Nurse Perez returned to the clinic to call Dr. Block for direction. Dr. Block instructed Nurse Perez to administer a four milligram injection of Ativan and a five milligram injection of Haldol. Mr. Miranda was moved from his cell to the jail clinic for treatment. At the clinic, the medical staff realized Mr. Miranda was no longer breathing. He was transported to the hospital by EMS. He died less than an hour after his seizure.

The record contains different accounts of what occurred during the hour prior to Mr. Miranda=s death. The County contends Mr. Miranda suffered a seizure, but had recovered before medical staff arrived to assist him. He then became violent and had to be restrained. He was then carried on a stretcher to the jail clinic, handcuffed and shackled, and given an injection of Ativan. After the injection was given, the staff noticed Mr. Miranda was no longer breathing and had turned blue. The medical staff tried to revive him and called an ambulance. All efforts to resuscitate him were unsuccessful.

The Dorado family contends that Mr. Miranda was experiencing seizures before and during the time he was restrained. Their evidence suggests that he was not violent, but rather convulsing uncontrollably at the time he was forcibly restrained. There is also evidence indicating that the restraints used, the position his body was placed in, and the time delays in treatment could have caused Mr. Miranda to stop breathing.

Mr. Miranda=s widow, Jessie Dorado, brought suit alleging wrongful death under the Texas Tort Claims Act and asserting claims under 42 U.S.C. ' 1983. The County filed a motion for summary judgment as to all claims on a variety of grounds. The motion was granted in part and denied in part. The County now brings this limited interlocutory appeal solely on the issue of whether members of the medical staff at the Detention Facility are subject to official immunity under the Texas Tort Claims Act.

A trial court=s denial of a motion for summary judgment based on an assertion of official immunity by an officer or employee of the state or a political subdivision of the state may be immediately appealed. Tex.Civ.Prac.&Rem.Code Ann. ' 51.014(a)(5)(Vernon Supp. 2002). In reviewing the denial, the appellate court applies the general standard of review for summary judgments. El Paso County v. Ontiveros, 36 S.W.3d 711, 714-15 (Tex.App.--El Paso 2001, no pet.). That is, the summary judgment movant has the burden of proving there is no genuine issue of material fact and it is entitled to judgment as a matter of law. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); City of El Paso v. Higginbotham, 993 S.W.2d 819, 822 (Tex.App.--El Paso 1999, no pet.). In determining whether there is a disputed material fact issue precluding summary judgment, the reviewing court will take as true any evidence favorable to the non-movant. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference is indulged in favor of the non-movant and any doubts are also resolved to the benefit of the non-moving party. Id. The issue on appeal is not whether the non-movant raised a material issue of fact precluding summary judgment, but whether the movant proved it was entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-29 (Tex. 1970). Official immunity is an affirmative defense under Texas law. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Ontiveros, 36 S.W.3d at 715. Where a motion for summary judgment is based upon this affirmative defense, the trial court should grant the motion only if the defendant establishes all elements of the defense as a matter of law. Ontiveros, 36 S.W.3d at 715.

To prove the employees were entitled to official immunity under the Tort Claims Act, the County was required to establish by competent summary judgment evidence that the acts complained of were: (1) discretionary; (2) performed in good faith; and (3) within the scope of the employees= official duties. Chambers, 883 S.W.2d at 653; Ontiveros, 36 S.W.3d at 715. Here, the only issue in dispute is good faith. The County was required to prove that a reasonably prudent official, under the same or similar circumstances, could have believed the actions taken were necessary. Chambers, 883 S.W.2d at 655-56. To successfully negate the defendant=s summary judgment evidence, a plaintiff must do more than show a reasonably prudent official could have decided to take a different action. Chambers, 883 S.W.2d at 657; Higginbotham, 993 S.W.2d at 825. Instead, a plaintiff must provide evidence that no reasonable person in the official=s position could have thought that the facts were such that they justified the official=s actions. Id.

The County argues it met the good faith prong of the Chambers test by providing evidence that the medical personnel involved in the treatment of Mr. Miranda acted in the same manner as a reasonable doctor or nurse would have acted under the same or similar circumstances. The Dorado family contends the County failed to prove the good faith of each employee as a matter of law.

Nurse Vivian Perez and Nurse Junette Davis

With regard to Nurses Vivian Perez and Junette Davis, there exists a critical fact issue which precludes a finding of objective good faith as a matter of law. The affidavits of both nurses assert Mr. Miranda suffered a single seizure, recovered, became combative, and had to be restrained to be moved from his cell to the jail clinic. However, the deposition testimony and affidavits of Jessie Dorado and Dr. Glenn Johnson provide evidence that Mr. Miranda suffered multiple seizures and likely experienced a prolonged seizure with uncontrolled convulsions. Rather than being combative, Appellees contend Mr. Miranda was experiencing a serious medical condition that required immediate and appropriate attention. The nurses= affidavits address the reasonableness of their conduct in handling an uncooperative patient. However, the County fails to address the reasonableness of the nurses= conduct in handling a patient experiencing a serious seizure.

A claim of good faith cannot be predicated on the correctness of a disputed set of facts. Kistener v. Pfannstiel, No. 2002 WL 384149, at *4 (Tex.App.--San Antonio March 13, 2002, no pet.). Further, as we have observed before, summary judgment is not the appropriate means for resolving squarely-presented factual conflicts. Ontiveros, 36 S.W.3d at 715. As we must take the Dorado family=s explanation of events as true, we find that the County has failed to provide evidence of the good faith of Nurses Perez and Davis under this scenario. The County=s issue as it pertains to Nurse Vivian Perez and Nurse Junette Davis is overruled.

Nurse Raul Tellez and Dr. Harold Block

In its motion for summary judgment, the County asserted that Nurse Raul Tellez and Dr. Harold Block were independent contractors and not County employees. The trial court found both individuals to be employees. The court dealt with the issue of official immunity for medical personnel in a separate section of the order. It appears that the court=s ruling on official immunity wrongly encompassed the actions of Nurse Tellez and Dr. Block. Whether Nurse Tellez and Dr. Block enjoyed official immunity was not raised by the County in its motion. Thus, the issue was not properly before the trial court or before this Court now. Further, the trial court=s ruling that these individuals are employees rather than independent contractors is not subject to interlocutory appeal. Accordingly, our decision is limited to the application of official immunity to Nurses Vivian Perez and Junette Davis.

We affirm the trial court=s judgment.

July 25, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)