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Doctor treating inmates has sovereign immunity

Virginia Lawyers Weekly//July 20, 2022

Doctor treating inmates has sovereign immunity

Virginia Lawyers Weekly//July 20, 2022

Where a city hired a doctor to provide medical care to inmates in the city’s detention center, the doctor has derivative sovereign immunity and cannot be sued for malpractice by a deceased inmate’s estate.


Patterson was an inmate in the city of Danville’s adult detention center (DADC). The city hired Dr. Laurence Shu-Chung Wang to provide medical care. Shortly after Patterson was lodged in the DADC on Nov. 4, 2016, the correctional health assistant prepared Patterson’s medical assessment.

The assessment noted “Patterson’s various medical and psychiatric conditions, including Patterson’s medical history of diabetes, hypertension, depression, and schizoaffective disorder.”

On Nov. 10, Wang and the health assistant met with Patterson, who was exhibiting signs of confusion. Wang treated him for high blood pressure. The next day, DADC took Patterson to the Danville Regional Medical Center. He was treated for many conditions.

Patterson responded favorably and “returned to the DADC the next day[.]”

On Nov. 16, Dr. Wang noted that “Patterson’s symptoms included gastric reflux syndrome, blurred vision, and shoulder pain.” Wang prescribed medications to address Patterson’s symptoms.

Over the next several months, Patterson reported other symptoms. Wang began treating Patterson for depression on Feb. 15, 2017. Five days later, Patterson had a cardiac arrest. Medical personnel revived Patterson but he never regained consciousness. He died on July 31.

Patterson’s estate sued Wang and others This appeal deals with claims against Wang.

At an evidentiary hearing, “the evidence showed that the City owned and operated the DADC as well as all medical equipment and supplies within it.”

Wang’s “salary was paid by the City, calculated on an hourly basis. And unlike a private physician treating patients, Dr. Wang served as an agent of the City, charged with a constitutional and statutory duty to provide medical care to a specific class of patients.”

The trial court concluded Wang had derivative sovereign immunity and was not grossly negligent when treating Patterson. We affirm.


“Claims against localities and their employees … continue to be governed by the common-law principles. … One of the more difficult principles – the derivative sovereign immunity of a municipal employee – must be examined in the case now before us.

Scope of immunity

The first step is to determine the scope of immunity.

“Sovereign immunity protects municipalities from tort liability arising from governmental functions but not proprietary functions. … A municipality engages in a governmental function when it exercises powers and duties exclusively for the public welfare, effectively acting ‘as an agency of the state to enable it to better govern that portion of its people residing within its corporate limits.’ …

“Just as ‘maintenance of a police force is a governmental function,’ … operating a jail is also a governmental function[.] …It necessarily follows that providing constitutionally and statutorily required medical care to inmates at a municipal jail involves the exercise of ‘powers and duties of government conferred by law’ on the municipality[.]”

Immunity and employees

“The second step … engages the premise that ‘government can function only through its servants,’ and thus, ‘certain of those servants must enjoy the same immunity in the performance of their discretionary duties as the government enjoys.’ …

“To determine whether derivative sovereign immunity applies to an employee, we focus on four, non-exclusive factors: ‘(i) the nature of the function performed by the employee; (ii) the extent of the [governmental employer’s] interest and involvement in the function; (iii) the degree of control and direction exercised by the [governmental employer] over the employee; and (iv) whether the act complained of involved the use of judgment and discretion.’”

After reviewing the authorities, ‘we agree with the circuit court that Dr. Wang was entitled to the protection of derivative sovereign immunity. His employer had a constitutional and statutory duty to provide medical care to incarcerated patients. …

“This medical care … was a constitutional requirement backed by a statutory imperative. …

“The City chose Dr. Wang as its agent to fulfill this duty. [T]he first two factors of the derivative, sovereign-immunity test have been satisfied.”

Discretion and control

“As for the third factor— the discretionary or ministerial nature of the function – our cases uniformly emphasize the highly discretionary character of professional medical care. …

“Most of the debate in this case … centers on the fourth factor – the degree of governmental control over the employee.”

Wang had no control over the patients he treated. While working for the DADC, he was required to treat DADC inmates and could not refuse to do so. Wang did not bill inmates for his services. He was paid on an hourly basis.

Wang was obligated to treat inmates at the DADC, using a DADC exam room and equipment owned by the city of Danville. He did not keep the inmates’ medical records. When Wang prescribed medication, the prescriptions were filled by a pharmacy of DADC’s choosing.

Wang was not the “sole authority” on questions concerning his medical treatments. “He was governed by medical policies and procedures promulgated by the Virginia Board of Corrections as well as an additional set of medical policies and procedures mandated by the DADC.”

Wang had discretion to use his medical judgment but he was supervised directly by the DADC director. Finally, Wang treated only inmates, so DADC security personnel made decisions whether precautions were needed.

We affirmed the trial court’s conclusion that Wang had derivative sovereign immunity.

Gross negligence

“The complaint … alleges that Dr. Wang was grossly negligent by failing to properly diagnose and treat Patterson. …

“[T]he complaint claims that Dr. Wang misdiagnosed Patterson and should have found, using ‘differential diagnosis’ techniques, that Patterson was suffering from a reoccurrence of hyponatremia and treated him for it. …

“This alleged misdiagnosis, the complaint concludes, was not just negligent but grossly negligent. We disagree. …

“[T]hese allegations do not show a ‘heedless and palpable violation of legal duty’ by a physician who refused to show even ‘slight diligence’ or ‘scant care,’ … for his patient’s medical needs. Dr. Wang’s multiple efforts to treat Patterson … demonstrate that Dr. Wang was exercising ‘some degree of care’ in his capacity as a physician.”

The trial court correctly granted Wang’s demurrer to the gross negligence claims.

Patterson v. City of Danville, Record No. 210509 (Kelsey) July 7, 2022. From the Circuit Court of the City of Danville (Reynolds). John P. Fishwick Jr., Carol M. Ching, Daniel J. Martin for appellant. James A. L. Daniel, Martha White Medley, Stanley P. Wellman, Julie S. Palmer for appellees. VLW 022-6-033, 18 pp.

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