Sovereign Immunity for State Doctors: When it is Good to be the King’s Doctor

  • January 12, 2010
  • Blog

Sovereign immunity is the legal principle that the government (and its branches, departments, agencies and employees) cannot be sued or held legally responsible for their actions. This legal principle comes from the old English law that held the king was divinely chosen and therefore could do no wrong. As a result, the king could not be held accountable for his actions nor could his representatives. When the United States was founded, this principle of British law was adopted. Since early colonial times, however, the courts and congress have limited the original broad scope of this immunity, as have the individual states. However, except where limited by judicial decision or by law, the principle of sovereign immunity remains the law.

One area of sovereign immunity that has received a lot of attention by the courts in Virginia is whether, and under what circumstances, a doctor employed by the Commonwealth of Virginia is entitled to a sovereign immunity defense when sued for medical malpractice. The courts have held that whether a doctor is entitled to the sovereign immunity defense depends on the consideration of four factors. First, courts will look to the relationship between the doctor’s functions and the Commonwealth’s important governmental objectives. The stronger the relationship between the two, the more likely it is that a court will find that the doctor is protected by sovereign immunity. Second, courts look to the Commonwealth’s interest and involvement in the doctor’s function. Third, courts will consider whether the doctor’s functions involved the use of judgment and discretion. Fourth, the courts will look to the degree of control and direction exercised by the state over the doctor. Let me explain what this means in more detail.

In James v. Jane, 221 Va. 43 (1980), the Virginia Supreme Court fashioned a four part “balancing test” to determine when a doctor employed by the Commonwealth is protected from medical malpractice claims by the doctrine of sovereign immunity.

The first factor that a court will consider is the relationship between the doctor’s activities and the important governmental objectives of the Commonwealth. James, 221 Va. at 53. A strong relationship between the two will weigh in favor of sovereign immunity covering the doctor. Lohr v. Larsen, 246 Va. 81, 85 (1993). Determining the strength of this relationship will involve a fact-intensive examination of the circumstances of the doctor’s employment. For example, in James, 221 Va. at 46, the Virginia Supreme Court was confronted with the question of whether doctors employed by the University of Virginia Medical School were entitled to a sovereign immunity defense in relation to a malpractice claim brought by patients that were treated at the university hospital. The Court noted that although the Commonwealth had important governmental objectives in running the medical school, the functions that the defendant doctors were performing did not bear a strong relation to those objectives. Id. at 54. The “paramount” objective of the Commonwealth was to operate a good medical school staffed by competent professors, yet the functions the doctors were alleged to have performed negligently related to an entirely different end – the treatment of patients. Id. Because of the disconnect between the doctors’ duties in question and the Commonwealth’s objectives, the court found that the doctors’ claim for a sovereign immunity defense was weakened.

The second factor that courts consider is the Commonwealth’s interest and involvement in the doctor’s functions. Id. at 53. Courts seem to require that the Commonwealth have more than just a generalized interest in functions being performed by the doctor. Instead, the Commonwealth must have a “great” interest in the doctor’s practice and must be specifically involved therein. Lohr, 246 Va. at 85. For example, in James, 221 Va. at 53, the court noted that while the Commonwealth had some interest in the defendant doctors’ adequate treatment of their patients, it had this same concern for all doctors practicing in Virginia. The Commonwealth’s interest in what the specific doctors of the case were doing was therefore slight, weighing against their claim of sovereign immunity. Id. at 54. The situation in Lohr, however, provides an illustrative contrast. In that case, the defendant doctor worked at a state clinic which operated for the purpose of providing medical treatment for economically underprivileged patients. Lohr, 246 Va. at 86. Because the state was specifically involved in achieving this objective through the defendant doctor, the court found that this factor weighed in favor of the doctor’s claim of sovereign immunity. Id. Thus, courts look for the Commonwealth’s interest and involvement that relates to the doctor’s activities in a specific, rather than a generalized, way.

The third factor that courts will consider is the amount of judgment and discretion that the doctor’s activities involve. James, 221 Va. at 53. A doctor whose duties involve greater use of judgment and discretion is more likely to be protected by sovereign immunity because the doctor’s duties “should not be affected by threats of personal liability arising from the use of such discretion.” Lohr, 246 Va. at 87. However, the mere ability to use discretion and judgment is not the only consideration; the courts take a functional approach which examines whether that discretion is attendant to duties that are integral to the Commonwealth’s interests. Id. Thus, while the doctors in James were invested with considerable discretion in the treatment of their patients, this discretion did not bear a strong relationship to the Commonwealth’s primary interest of running an effective medical school. Lohr, 246 Va. at 87 (discussing James, 221 Va. at 53).

The fourth factor that courts look to is the level of control that the state exerts over the doctor. James, 221 Va. at 53. A high level of control over the doctor weighs in favor of immunity, while a low level of control weighs against it. Lohr, 246 at 88. As the Virginia Supreme Court itself has recognized, this rule seemingly contradicts the rule in the third prong of the James test, which holds that greater amounts of doctor discretion weigh in favor of sovereign immunity. See id. The court has not provided much guidance as to how to balance these apparently opposing factors, explaining only that “when a government employee [such as a doctor] is specially trained to make discretionary decisions, the government’s control must necessarily be limited in order to make maximum use of the employee’s special training and subsequent experience.” Id. Various cases seem to indicate that because the exercise of judgment is perhaps inherent in a doctor’s functions, the determinative element will be that of state control.

A few examples may help to illustrate the mix of control and discretion that courts will look for. In James, 221 Va. at 43, the court found that while the doctors exercised broad discretion in treating their patients, the state did not exert enough control over them for them to be protected by sovereign immunity. For example, the doctors were under no obligation to accept any individual or class of patients; their methods of treatment were not subject to the control and direction of others; they had the ability to forgive medical bills; and a portion of the fees paid by the patients went to the doctors’ retirement fund. Id. at 47-52.

By way of contrast, in Gargiulo v. Ohar, 239 Va. 209, 215 (1990), the court noted that the defendant physician was granted enough discretion and was under enough state control to be entitled to sovereign immunity. For example, the doctor received no compensation, directly or indirectly, from her patients; she was not able to choose her patients, she was subject to the supervision of her superiors; and she was required to employ state-prescribed methods and to follow state-standardized procedures. Id. This case seems to accept the idea that in a profession where some exercise of judgment and discretion is necessary, the key inquiry will be on whether the state nonetheless retains significant control over the doctor’s practice.

The later case of McCloskey v. Kane, 268 Va. 685 (2004), follows this approach as well. There, the Court noted that the physician at Western State Hospital had wide latitude to use his own discretion and judgment, but he was not subject to very much state control because he was not under anyone’s supervision and was not adequately controlled in his treatment of patients. Id. at 690. As a result, the doctor was not immune to a claim for medical malpractice, and could be held responsible for his actions.

Although a very old principle of law, sovereign immunity is very much still an important doctrine in Virginia law. This article has focused on its application in medical malpractice claims, but it applies in many other contexts as well. In subsequent articles, I will discuss how this principle applies to other types of claims and what laws have been passed that allow claims against the governments and its employees.