Patient Claims Podiatrist Acted as Psychiatrist

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A woman who alleges she received treat­ment for physical and mental illness, in­cluding bipolar disorder, from the Hamp­ton-Newport News Community Services Board healthcare provider who represented that he was a psychiatrist, but who was a po­diatrist subject to disciplinary action in Cal­ifornia, may sue the defendant provider and the CSB for gross negligence; however, the Norfolk Circuit Court dismisses plaintiff’s claims for punitive damages and for negli­gent supervision, and dismisses her claims against the cities of Hampton and Newport News.

The cities of Hampton and Newport News are entitled to sovereign immunity. Cities and counties are statutorily required to es­tablish community services boards under Va. Code § 37.2-500. Virginia courts have held that the operation of government-run medical facilities, including hospitals, is a governmental function. As the establish­ment of the CSB is clearly an exercise of legislative authority, and because it was created to enhance the welfare of the peo­ple residing within Hampton and Newport News, the court finds that the CSB serves a governmental function for which the cities are entitled to immunity from tort liability.

Although a municipal employee may per­sonally be held liable for his own gross negli­gence, Hampton and Newport News are not vicariously liable for such negligence. The cities also are immune from punitive dam­ages. The court sustains the cities’ pleas in bar.

The CSB also is entitled to sovereign im­munity for simple negligence. Just as the creation and funding of the CSB is a govern­mental function of Hampton and Newport News, the operation of the CSB likewise is a governmental function, as it provides ser­vices for the general benefit and well-being of the citizens of those cities. This court finds that the providing of mental health services by the CSB is not a ministerial act of a pro­prietary nature but an exercise of the power delegated to the CSB for the general benefit and well-being of the population it serves and therefore is governmental in nature. The court sustains the CSB’s plea of sover­eign immunity.

The defendant healthcare provider is en­titled to sovereign immunity for simple neg­ligence under the test in Lohr v. Larsen, 246 Va. 81 (1993). The court finds his service as a CSB employee was essential to a govern­mental objective and the government had a great interest and involvement in that func­tion.

Gross negligence

Plaintiff has stated a claim for gross neg­ligence. She alleged defendant provider pre­scribed medications to her, failed to monitor her, failed to warn her of the medications’ ef­fects and failed to discontinue her medication in light of her complaints of known adverse side effects. Assuming these allegations are true, the court finds a reasonable jury could find that the provider and the CSB, as his employer, committed gross negligence in plaintiff’s treatment. The demurrers to the gross negligence claim are overruled.

Plaintiff has not stated a claim for punitive damages. Her allegations that he continued to prescribe the drug Geodon for her despite her complaints and adverse symptoms, and that he committed battery by having unpriv­ileged physical contact with her and did not obtain her informed consent, do not allege wanton and reckless disregard of her rights.

Negligent supervision

Finally, this court holds that Virginia does not recognize the tort of negligent supervi­sion. The viability of this claim in Virginia is unclear despite being addressed by the Su­preme Court of Virginia in C&P Telephone Co. v. Dowdy, which did not recognize the tort under the circumstances of that case. Although no case of precedential value has emerged clarifying the holding in Dowdy and thereby settling the question of whether negligent supervision is actionable in Vir­ginia, the Supreme Court of Virginia issued an unpublished order in 2013, in Williams v. Shall, stating simply that Virginia does not recognize a claim for negligent supervision, and citing Dowdy. The court finds the Su­preme Court’s interpretation of its own case law highly persuasive and indicative that in the future it likely will formally declare that negligent supervision claims are not cognizable in Virginia. The court therefore agrees with the majority of Virginia circuit courts and holds that negligent supervision is not a recognized cause of action in Virgin­ia.

Cleaves-McClellan v. Shah (Lannetti) No. CL 15-1918, June 30, 2016; Norfolk Cir.Ct.; Edward F. Halloran, Edward J. McNelis III; Everett L. Bensten, Sr. Ass’t City Att’y Hamp­ton; Darlene P. Bradberry, Dep. City Attorney Newport News; Mark R. Herring, AG. VLW 016-8-080, 16 pp.