BEFORE WALKER, P.J., HAWKINS AND ROBERTSON, JJ., AND SUGG, RETIRED SUPREME COURT JUSTICE
SUGG, RETIRED SUPREME COURT JUSTICE, FOR THE COURT: *fn1
The questions in this case are whether, and to what extent, employees of the State Department of Health enjoy immunity to a civil action for damages arising out of the performance of their official duties. The answer to these questions ultimately turns on whether the acts complained of were discretionary acts as opposed to ministerial acts. The trial court held that at the time in question these defendants were acting in their discretionary capacity and, accordingly, enjoyed immunity in the face of this suit. We agree and affirm.
This action was instituted by Emma Hudson, widow of Earl Hudson, under the provisions of our Wrongful Death Statute (Section 11-7-13, Mississippi Code Annotated, 1972), on behalf of herself and the four children of Earl Hudson. In the amended complaint the State of Mississippi and two others were named as defendants along with Alfio Rausa and Mavis Green. All defendants except Rausa and Green were dismissed by the plaintiff. Hudson alleged her husband's death on February 23, 1981, was caused by the negligence of Rausa and Green as follows:
(a) in prescribing INH to the decedent when they knew or should have known that due to his age and other relevant factors that his taking of said drug was contra-indicated in that it created an unreasonable risk of death;
(b) in failing to properly inform the decedent of the possible consequences of his taking INH when they knew or should have known of said consequences, thereby depriving him of the opportunity to make a reasoned and voluntary decision as to whether to subject himself to the proposed course of treatment;
(c) in failing to properly diagnose the decedent's medical condition;
(d) in failing to perform tests to determine the cause of the decedent's symptoms;
(e) in failing to administer a proper course of medical treatment of the decedent's condition; and
(f) in failing to recommend that the decedent cease taking INH when they knew or should have known that his continuing to take said drug could forseeable [sic] result in his death.
In paragraphs IV and V of her complaint, Hudson alleged:
At all times hereinafter mentioned, the defendant, Alfio Rausa, was a duly licensed physician under the laws of the State of Mississippi and was acting in his individual capacity and within the scope of his employment with the Mississippi State Board of Health, an agency of the State of Mississippi, as the District Health Officer for District III of said Board and the local county health officer
for the Montgomery County Health Department, Montgomery County, Mississippi, a subdivision of said Board.
At all times hereinafter mentioned, the defendants, Mavis Green, Belinda Chambley and Gail Rogers, were employees of the Montgomery County Health Department, a subdivision of the Mississippi State Board of Health, and were acting in their individual capacities and within the scope of their employment as health nurses with said Health Department and were under the direction, supervision and control of the defendants, Alfio Rausa and the State of Mississippi.
Rausa and Green filed separate answers and in each answer the defendants as a first defense pled the complaint failed to state a claim upon which relief could be granted. Their second defense was that they were immune from suit. Both defendants fully answered the complaint and concluded with affirmative defenses.
In answer to paragraph IV of the complaint, Dr. Rausa admitted that he was a duly licensed physician acting within the scope of his employment with the Mississippi State Board of Health as District Health Officer for District III but denied he was acting in his individual capacity.
In her answer, Green admitted only that she was an employee of Montgomery County Health Department, a subdivision of the Mississippi State Board of Health, and that she was acting within the course and scope of her employment with the Health Department under the direction, supervision, and control of Dr. Rausa and the State of Mississippi. With reference to the other allegations of paragraph V, Green stated she was without sufficient information to form a belief as to the truth or correctness of the allegations. All of the parties, both complainants and defendants, filed requests for admissions and interrogatories which were answered by the respective parties.
Dr. Rausa and Green filed separate motions to dismiss under Rule 12 (b)(6), asserting the complaint failed to state a cause of action upon which relief could be granted by reason of immunity.
When the motions came on for hearing, the trial judge considered matters outside the pleadings, *fn2 and granted summary judgment for defendants dismissing the complaint with prejudice at the cost of plaintiff. In his order of dismissal ...