Lohr v. Larsen , 246 Va. 81 ( 1993 )

JUSTICE HASSELL,

with whom JUSTICE KEENAN joins, dissenting.

Today the majority expands the scope of sovereign immunity to include licensed physicians who practice in state health clinics. As a result of the majority’s decision, indigent persons who receive negligent health care from such physicians have no remedy in tort against them. Yet, in cases involving identical acts of medical negligence, people who have health insurance or sufficient wealth to retain the services of private physicians are permitted to recover damages against those physicians. I believe that if the cloak of sovereign immunity is to be extended, in effect, to permit this disparity, the General Assembly, and not judges, should do so.

In James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980), which is controlling here, we held that certain defendants who were licensed to practice medicine at a state agency were not immune for their acts of medical negligence. The defendants’ primary responsibilities, as faculty members of the University of Virginia Medical Center, were teaching, research, and patient care. The defendants’ only compensation was a fixed annual salary. The compensation was paid to each faculty member regardless of the amount of money the physician earned for his particular department or the amount of money earned by his department through fees for patient care. Once a patient was admitted to the hospital, whether private or staff, the patient received identical treatment and services. No member of the medical staff could refuse to treat a patient because of the patient’s classification.

In James, just as here, the physicians argued that they enjoyed the cloak of sovereign immunity and, thus, were immune from a lawsuit because they were salaried employees of a state agency and as part of their duties, they attended and treated patients in a state agency. The physicians relied strongly upon the fact that they did not receive compensation from patients whom they treated. There, we stated:

The only issue we decide here is whether a physician, employed by an agency of the Commonwealth of Virginia and practicing in a hospital operated by such an agency, should be immune from an action for negligence, i.e., for his failure to exercise reasonable care in attending a patient.

Id. at 55, 282 S.E.2d at 870.

We fashioned a four-part test to determine whether the physicians were entitled to the immunity accorded the sovereign:

Under such circumstances we examine the function [the] employee was performing and the extent of the state’s interest and involvement in that function. Whether the act performed involves the use of judgment and discretion is a consideration, but it is not always determinative. ... Of equal importance is the degree of control and direction exercised by the state over the employee whose negligence is involved.

221 Va. at 53, 282 S.E.2d at 869. Applying this test, we stated:

In the case under review the paramount interest of the Commonwealth of Virginia is that the University of Virginia operate a good medical school and -that it be staffed with efficient and competent administrators and professors. The state is of course interested and concerned that patients who are treated at the University Hospital receive proper medical care. However, the state has this same concern for every patient who is treated in any private hospital or by any doctor throughout the Commonwealth. This is evidenced by the numerous statutes enacted by the General Assembly of Virginia designed to assure adequate medical care and medical facilities for the people of the state. The state’s interest and the state’s involvement, in its sovereign capacity, in the treatment of a specific patient by an attending physician in the University Hospital are slight; equally slight is the control exercised by the state over the physician in the treatment accorded that patient. This interest and involvement is not of such moment and value to the Commonwealth as to entitle [the defendant doctors] ... to the immunity enjoyed by the state.

While diere may have been a time when a physician was attracted to teach in a state medical school, and to serve as an attending physician on the staff of its hospital, because of the cloak of immunity afforded him as an employee of the sovereign state, we think that time is past. We cannot conceive of any physician, regardless of his status, practicing medicine in this era without the protection of liability insurance, which he purchases for himself or which is provided for him by his employer. Realistically, the only interest the state has in affording immunity to the physicians practicing in state hospitals is the probability of an increase in the cost of medical malpractice insurance if such immunity is denied. We do not find this to be such a compelling state interest as to justify the denial of a patient the right to assert a claim against a physician for negligent treatment.

Id. at 54, 282 S.E.2d at 870.

Today, the majority apparently abandons the rationale and holding in James v. Jane, which should be controlling here. The facts in this case are indistinguishable from those in James. Dr. Larsen is a public health clinician employed by an agency of the Commonwealth to supply medical services for the central Shenandoah health district. He receives a fixed salary. He is board-certified in obstetrics and gynecology. His duties do not involve research or training. He stated, in his job description, which is a part of the record, and which he signed, that he makes “all patient medical decisions” without supervisory advice, guidance, or prior approval. When Dr. Larsen examined Ms. Lohr, he did not follow any state-established rules, protocol, or procedure. Rather, he relied upon his own experience.

I see no reason to ignore the test that we enunciated in James v. Jane, which was restated, recently, in Gargiulo v. Ohar, 239 Va. 209, 387 S.E.2d 787 (1990). The only reason that the majority has chosen not to adhere to James v. Jane is because it is concerned that physicians might not participate in public health programs unless they are immune for their negligent acts. However, this is a policy decision that should be made by the General Assembly, not this Court. Furthermore, the majority’s concern is ill founded because the record reveals that the Commonwealth has liability insurance to cover any acts of medical negligence committed by Dr. Larsen.

Finally, as we observed in James v. Jane, the grant of sovereign immunity to physicians only promotes substandard health care. Thus, not only does the majority deprive persons who are injured by physicians who practice at a state clinic of a tort remedy against those physicians, but those patients are relegated to a system which promotes the delivery of inadequate medical care.

For these reasons, I would deny Larsen’s plea of sovereign immunity.