Medical Malpractice – Sovereign Immunity – NICU Nurses

A Charlottesville Circuit Court denies pleas of sovereign immunity by defendant nurses on a med-mal claim alleging one nurse negligently placed a peripherally inserted catheter central line in the premature infant plaintiff’s right arm, and another nurse failed to notice signs and symptoms indicating the line had been negligently placed, which later led to surgical amputation of the affected arm; defendant nurses are not immune, even if the neonatology fellow, a physician in training who allegedly repeatedly confirmed placement of the line, may have immunity.

The question here is whether defendant registered nurses and employees of the University of Virginia Medical Center are entitled to sovereign immunity from liability for medical malpractice related to care they dispensed under the general supervision of a licensed physician engaged as a fellow in the neonatology department.

In this case, because defendants were involved purely in providing healthcare, the court agrees they are not immune. Defendants primarily performed a function of providing direct patient care, rather than a student or teaching function. Their function in providing treatment to the infant was not oriented towards research, as in Gargiulo v. Ohar, 239 Va. 209 (1990), or education and training, as in Lawthorne v. Harlan, 214 Va. 405 (1973). Their function was to provide medical nursing care to patients admitted to the NICU unit.

The distinction between providing direct patient care and performing a training or teaching function was recognized in this court by Judge Swett in Houchens v. Rector & Visitors of U.Va., No. 4598, Charlottesville Cir.Ct., July 11, 1991. Although defendants argue to the contrary, Judge Swett’s opinion in Houchens was not negated by the Supreme Court of Virginia’s later decision in Lohr v. Larsen, 246 Va. 81 (1993).

Although defendants argue it would be incongruous if the individual who repeatedly confirmed placement of the PICC line, Dr. Naylor, a neonatology fellow in training, would be immune from liability under Gargiulo while defendant nurses in this case would not, the Supreme Court of Virginia has clearly stated the commonwealth’s general interest in its citizens receiving adequate medical care is slight in the context of a state’s interest as sovereign. By contrast, the commonwealth has a significant interests in providing medical education of the University of Virginia Medical Center.

Without further guidance from the Supreme Court, it is difficult to see how providing immunity to nurses assigned to the NICU unit for acts of negligence would further the commonwealth’s interest in providing medical education.

In the treatment of plaintiff, defendants served as caregivers; they were not involved in any state-sponsored research; they were not students or interns trying to pursue further training; they were not primarily engaged in teaching; nor were they primarily engaged in administrative work.

Neither the nature of the function performed by the nurses assigned to the NICU nor the commonwealth’s interest in that function are sufficient to warrant immunity from acts of simple negligence. Defendants primarily served the function of providing patient care to plaintiff, and the commonwealth has little interest – in its sovereign capacity – in individual patient care as provided at the U.Va. Medical Center.

Gaines v. Health Services Foundation (Hogshire, J.) No. CL 08-147, April 30, 2010; Charlottesville Cir.Ct.; Edward J. McNelis III, William H. Archembault, Matthew B. Murray for the parties. VLW 010-8-084, 7 pp.