Virginia Lawyers Weekly VA Lawyers Weekly
The Supreme Court of Virginia affirmed a lower court’s ruling concluding that a doctor who treated inmates in a Virginia correctional center was protected by derivative sovereign immunity.
The state’s high court also granted the doctor’s demurrer to a gross negligence claim, affirming the lower court’s judgment that the claim was “insufficiently pleaded.”
The doctor was facing medical malpractice allegations filed by the estate of a man the doctor had treated who died while an inmate at a correctional center.
Justice D. Arthur Kelsey wrote the opinion for the court in Patterson v. City of Danville (VLW 022-6-033). Chief Justice S. Bernard Goodwyn, Justices Cleo E. Powell, Stephen R. McCullough, and Teresa M. Chafin and Senior Justice Lawrence L. Koontz Jr. were noted as “present” in the opinion along with Kelsey.
Circuit opinion
The relevant events in this case began in November 2016 when the deceased, Langston Patterson, was incarcerated in the Danville Adult Detention Center, or DADC. The opinion noted the DADC is a “minimum-security detention center owned and operated by the City of Danville.”
During Patterson’s time in the DADC, he underwent numerous evaluations after exhibiting symptoms including confusion, blurred vision, shoulder pain and “an altered mental state.”
Less than one week after his initial incarceration, Patterson was transported to the Danville Regional Medical Center and treated for an array of diagnoses, including dehydration, diabetes and hyponatremia.
Dr. Laurence Shu-Chung Wang, the DADC physician, saw Patterson several times and prescribed Patterson an antipsychotic medication in December.
According to the opinion, on Feb. 15, 2017, Patterson “appeared to be anxious and mentally disturbed,” and Wang prescribed an antidepressant medication. Five days later, Patterson suffered cardiac arrest in his cell and was resuscitated. He never regained consciousness and died five months later at the Danville Regional Medical Center.
Patterson’s estate, through its personal representative, filed suit against Wang “and others” for ordinary and gross negligence, although the claims against Wang were the sole claims contested on appeal.
When the case was heard before the Danville Circuit Court, the court granted Wang’s plea in bar to the negligence claim, saying the doctor “was protected by derivative sovereign immunity.” The lower court also granted Wang’s demurrer to the gross negligence claim “because it was insufficiently pleaded.”
Appeal
“In sum, the circuit court did not err in concluding that Dr. Wang was entitled to the protection of derivative sovereign immunity and that the allegations of gross negligence were insufficient as a matter of law,” Kelsey wrote.
“While sovereign immunity has stood the test of time, the testing process seems to never end.”
— Justice D. Arthur Kelsey
To reach that conclusion, the justice reviewed the history of sovereign immunity in Virginia, beginning with the 1793 U.S. Supreme Court decision in Chisholm v. Georgia.
“While sovereign immunity has stood the test of time, the testing process seems to never end,” Kelsey noted.
He added that while claims against localities and their employers are governed by 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.”
The first step in the court’s analysis was determining the scope of the governmental entity’s immunity. Kelsey wrote that “sovereign immunity protects municipalities from tort liability arising from governmental functions but not proprietary functions.”
In the present case, Kelsey said the operation of a jail is a government function that requires providing medical care to inmates at the jail, making the providing of said care “the exercise of ‘powers and duties of government conferred by law’ on the municipality.”
The second step of the analysis states the premise that “government can function only through its servants” — and certain of those servants are entitled to the same immunity as the government.
After reviewing five other cases with similar fact patterns involving a claim of misdiagnosis and medical malpractice, Kelsey determined sovereign immunity protection extended to Wang.
“Turning to the governing line of analogous precedent … we agree with the circuit court that Dr. Wang was entitled to the protection of derivative sovereign immunity,” Kelsey wrote.
“The City chose Dr. Wang as its agent to fulfill this duty. There can be little doubt, therefore, that the first two factors of the derivative, sovereign-immunity test have been satisfied,” the justice continued.
The third factor Kelsey analyzed was “the discretionary or ministerial nature of the function.” In evaluating this factor, he pointed out that “all of the allegations involve discretionary — not ministerial — medical decisions made by Dr. Wang.”
The justice said the main point of contention in the case stemmed from the fourth factor — the degree of governmental control over the employee. In reviewing the facts, Kelsey stated that Wang “was obligated to treat inmates at the DADC, using a DADC exam room and equipment owned by the city of Danville.”
Further, medical records were kept under the control of the DADC, prescriptions ordered by Wang had to be filled by the DADC contracted pharmacy, inmates were billed to the DADC instead of Wang and “Dr. Wang was not the sole authority on questions related to his medical treatment of inmates.”
“Though Dr. Wang necessarily exercised his discretionary medical judgment, he was still subject to the direct supervision of the DADC Director, the primary author of the DADC medical guidelines governing Dr. Wang’s employment,” Kelsey wrote.
The Supreme Court of Virginia therefore affirmed the holding by the circuit court that Wang satisfied “all four of the legal factors that we traditionally apply” to derivative sovereign immunity cases.
Finally, demurrer on the gross negligence claim was the right call, as “to conclude otherwise would convert most, if not all, allegations of misdiagnosis in medical malpractice cases into claims of gross negligence,” Kelsey wrote.
