Roberts v. Grigsby

Banke, Chief Judge.

On December 12, 1979, Otis Reed, Jr., was charged with 2 counts of aggravated assault after he stabbed another individual several times and then attempted to kill a police officer called to the scene of the stabbing. He was adjudicated not guilty by reason of insanity at the time of the assaults and was involuntarily committed at Central State Hospital in Milledgeville, Georgia, from January 17, 1980, until September 12, 1980, when he was transferred to West Georgia Regional Hospital in Columbus, Georgia. '

On December 17, 1980, Donald P. Grigsby, Ph.D., Chief of the Psychological Section and the Forensic Services at West Georgia Regional Hospital, recommended that Reed be discharged, stating that he found Reed to be free of mental disorder, posing no danger to himself or others, and able to care for himself. Although initially opposed to the release of Reed, the district attorney eventually acquiesced in the discharge. On March 11, 1981, the superior court accepted Grigsby’s recommendation and ordered Reed’s release.

Following his release, Reed attended one session at a mental health outpatient clinic, at which time he indicated that he felt no need for medication or other services. On February 24, 1982, more than 11 months after his release, Reed’s sister and mother contacted Carl Dunlap, a social worker with the adult mental health clinic operated by the Columbus-Muscogee County Health Department, and requested treatment for Reed, reporting that his behavior once again had become aberrant. Reed’s sister and mother further reported that *378Reed had purchased a handgun from a pawn shop and that the pawnbroker had returned the money seeking “to get back the gun.” Dunlap, by deposition, recalled (1) explaining what the procedures for involuntary commitment were and that treatment generally could not be forced upon Reed unless he presented an imminent danger to himself or others and (2) offering to arrange an appointment. (Reed’s mother denied that Dunlap so advised her.) The following day, Reed’s mother and father asked Reverend Barto Roberts to accompany them to Reed’s apartment to help persuade Reed to seek treatment. During that visit, Reed became agitated and shot and killed the Reverend Mr. Roberts.

The appellant, Roberts’ widow, subsequently commenced this action against Dr. Grigsby, Dr. Sadi Oguz (a staff psychiatrist at West Georgia Regional Hospital), Dunlap, Paul Crofford (a mental retardation service coordinator with the adult mental health clinic at the Columbus-Muscogee County Health Department), and several other employees of West Georgia Regional Hospital, alleging that they had been negligent in treating Reed, in recommending his release from involuntary commitment, and in failing to monitor him on a regular basis following his release. This appeal is from the trial court’s grant of summary judgment to all the defendants. Held:

1. Each of the defendants must be considered immune from liability pursuant to the Supreme Court’s decision in Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), wherein it was held that, in the absence of a lawful waiver of such immunity or a showing of wilful, wanton, or malicious misconduct, governmental officers or agents are exempt from liability for actions undertaken in their official capacity and within the scope of their official duties. This court’s recent decision in Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985) (cert. den.), is neither in conflict with Hennessy nor authority for a contrary ruling in the present case. There, we held that the Hennessy doctrine does not insulate physicians employed by public clinics from liability to their patients for professional malpractice. The defendants in the present case are not sought to be held liable for the death or injury of a patient resulting from the provision of negligent medical care. Rather, they are charged with the breach of an alleged duty owed to the public in general, arising from the performance of official governmental functions respecting the confinement of individuals who present a substantial risk of imminent harm to themselves or others. See generally OCGA §§ 17-7-131 (a); 37-3-1 (12); Moses v. State, 167 Ga. App. 556 (307 SE2d 35) (1983). Like prison officials or probation officers, they clearly enjoy a qualified immunity from such liability under Hennessy.

2. With respect to the West Georgia Regional defendants, at least, the statutory immunity provided by former Code Ann. § 88-*379502.23 (currently OCGA § 37-3-4) is also applicable. That code section, as it existed during the period of time relevant to this case, provided as follows: “Any physician, peace officer, attorney, health official, or hospital official, agent, or employee, whether employed by a private hospital or at facilities operated by the state, a political subdivision of the state, or by a hospital authority created pursuant to the Hospital Authorities Law of Georgia, Chapter 88-18 of the Georgia Code, who acts in good faith in compliance with the admission and discharge provisions of this chapter, shall be immune from civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.” Ga. L. 1978, pp. 1789, 1806.

3. In ruling that the defendants are protected from liability by the doctrine of governmental immunity, we express no opinion as to whether a fact issue would otherwise exist with respect to the merits of the appellant’s claim.

Judgment affirmed.

McMurray, P. J., Sognier, Pope and Ben-ham, JJ., concur. Pope, J., also concurs specially. Been, P. J., Birdsong, P. J., and Beasley, J., concur specially. Carley, J., concurs in Divisions 1 and 3 and in the judgment.