Interesting Case for Custody Evaluator Lawsuit / Immunity Rebuttal

Davis v Medical Evaluation Specialists  

(I’m only going to copy over the relevant parts – see the bold / underlined parts of what I have copied)
Appellant pleaded that local plaintiffs attorneys had detected a bias against claimants by doctors affiliated with MES. For example, appellant’s pleadings alleged that when MES physicians were involved, the reports allegedly all read the same, and the result was allegedly almost always a 0% impairment rating. Appellant thus alleged that MES and its physicians were not participating in good faith in evaluating workers’ compensation claims.(FN2) Appellant contends that MES was subverting the TWCA by recruiting physicians who would ignore the American Medical Association (AMA) guidelines and knowingly assign false and fraudulent impairment ratingsthat would attract insurance company business.  

The TWCC then designated another doctor to evaluate appellant (A Second Opinion). The new designated doctor examined appellant and assigned an impairment rating of 21% under the AMA guides.  (second opinion was in disagreement with the bias doctor)  

(The bias doctors) moved for summary judgment, claiming absolute derived judicial immunity and qualified “good faith” immunity.   ( The trial court granted immunity) 

In point of error one, appellant contends it was error for the trial court to grant the summary judgment motions of MES, Dr. DeFrancesco, and Dr. Dozier based upon either absolute derived judicial immunity or qualified “good faith” immunity.    These appellees rely heavily on Delcourt v. Silverman (which Sherry relies heavily on)

(The second opinion) affidavit created a fact issue as to whether Dr. DeFrancesco and Dr. Dozier acted in bad faith when they assessed appellant
These appellees rely on Putthoff v. Ancrum, 934 S.W.2d 164, 166-67 (Tex. App.–Fort Worth 1996, writ denied), in which the plaintiffs complained that a negligent autopsy prevented them from proving their daughter was murdered. The pathologists claimed qualified judicial immunity, and their motion for summary judgment was denied.  

In City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994), the supreme court adopted a good faith test consisting of “objective legal reasonableness.” This standard applies in all qualified or official immunity cases. Murillo v. Garza, 881 S.W.2d 199, 202 (Tex. App.–San Antonio 1994, no writ). The element of good faith is satisfied when it is shown that a reasonably prudent person in the same or similar circumstances would have taken the same actions. City of Houston v. Newsom, 858 S.W.2d 14, 18 (Tex. App.–Houston [14th Dist.] 1993, no writ). To controvert summary judgment proof on good faith, the plaintiff must do more than show a reasonably prudent person would not have taken the same action; “the plaintiff must show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.‘” City of Lancaster, 883 S.W.2d at 657 (emphasis added).  (No reasonable person like the list of a dozen experts that have come in behind Sherry with second opinion reports??)
plaintiffs did not lose because the defendants’ affidavits were unassailable. They lost because their own controverting affidavit was inadequate. All it stated was that the defendant doctors were negligent; it wholly failed to say that they acted in bad faith. See id. at 173.  

“We must also bear in mind that it is not appellees’ burden to disprove good faith, but merely to raise a fact issue.” Murillo v. Garza, 904 S.W.2d 688, 692 (Tex. App.–San Antonio 1995, writ denied).  

The appellees claim that (the second opinion) affidavit was conclusory and unsupported by any medical or other objective data. We (the appellate court) disagree.  We sustain the first point of error.

Delcourt, 919 S.W.2d at 787. This argument must fail because we have found above that the physicians in question are not immune if they acted in bad faith, and a fact issue was raised on this question. Unlike the court-appointed psychiatrist and the attorney ad litem defendants in Delcourt, and unlike the corrupt judge in the Delcourt hypothetical, appellees are not entitled to common-law absolute derived judicial immunity. They are immune by statute only for their acts “in good faith.” For acts in bad faith, they have no immunity. Tex. Lab. Code Ann. §§ 413.054(a), 402.010(b). These appellees’ contention that they derive immunity from Dr. Dozier and Dr. DeFranceso fails for the same reason.  
We sustain the second point of error.

We reverse the judgment and remand the cause.