October 31, 1997

Record No. 962261









Melvin R. Hughes, Jr., Judge

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Poff, Senior Justice

Eighteen-year-old Yukema Denise Benjamin went to the Emergency
Room at the Medical College of Virginia (MCV) Hospital on October
25 and 28, 1994, complaining of headaches and neck pain. On both
occasions, Yukema was directed to the Hospital’s Episodic Care
Clinic (ECC) and, after examination, was discharged with
prescriptions for medication to treat her headaches. On October
31, 1994, Yukema died from the effects of intracranial pressure
due to failure of a fluid shunt which had been placed in her head
as an infant.

Janie Mae Benjamin, administrator of Yukema’s estate, filed a
motion for judgment against Julie Ann Samuels, M.D., the medical
director of the ECC, and University Internal Medicine Foundation
(UIMF). The motion for judgment alleged that when Yukema was
treated, Dr. Samuels, as the medical director of the ECC, was in
charge of, and responsible for, the physicians in the unit and
was acting as the agent, servant, and employee of UIMF.

Dr. Samuels filed a plea of sovereign immunity. Following an
evidentiary hearing on the plea, the trial court issued an
opinion letter deciding that Dr. Samuels was acting as an
administrator of a state-run public health facility and, applying
the four-prong test enunciated in Messina v. Burden, 228
Va. 301, 313, 321 S.E.2d 657, 663 (1984), was entitled to
sovereign immunity.

UIMF then filed a motion for summary judgment based on the
trial court’s determination in its opinion letter that Dr.
Samuels was acting "for the state as an administrator"
of the ECC. This determination, UIMF asserted, eliminated any
basis upon which UIMF could be vicariously liable because Dr.
Samuels was not acting as an agent, servant, or employee of UIMF
at the time of Yukema’s treatment in the ECC. After hearing
argument of counsel on the summary judgment motion, the trial
court entered a final order sustaining Dr. Samuels’ plea of
sovereign immunity and UIMF’s motion for summary judgment.
Benjamin filed an appeal challenging both the grant of sovereign
immunity with respect to Dr. Samuels and the entry of summary
judgment in favor of UIMF.



Sovereign immunity determinations must be made on a case by
case basis, balancing factors identified in a test established in
James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980),
and further enunciated in Messina, 228 Va. at 313, 321
S.E.2d at 663. [1]

We have previously held that administrators of state-run
institutions are entitled to sovereign immunity for actions taken
in their administrative capacities because the state has a
substantial interest in the efficient management of its entities
and facilities, and administrators must exercise discretion in
the performance of those duties. Id. at 310-11, 321 S.E.2d
at 662; Banks v. Sellers, 224 Va. 168, 173, 294 S.E.2d
862, 865 (1982); Lawhorne v. Harlan, 214 Va. 405, 407, 200
S.E.2d 569, 571-72 (1973). The trial court reached the same
conclusion in this case. Applying the Messina test,
the trial court determined that the ECC is a state-run facility,
that there is "a heavy state interest and involvement"
in its administration, and that the administrator of the ECC is
required to exercise "a considerable amount of judgment and
discretion." The trial court sustained Dr. Samuels’
sovereign immunity plea because, during the events in question,
she was acting as the administrative director for the ECC rather
than as an attending medical staff member of MCV Hospital to whom
the physicians in the ECC were responsible and accountable.

Benjamin assigns error to the trial court’s factual
determination that Dr. Samuels was acting as an administrative
director of the ECC. In reviewing this determination, we will not
disturb the trial court’s findings unless they are plainly wrong
or without evidence to support them. Code ? 8.01-680; Norfolk
Airport Authority v. Nordwall
, 246 Va. 391, 393, 436 S.E.2d
436, 437 (1993).

The testimony established that Dr. Samuels was a physician,
board-certified in internal medicine, and a full-time faculty
member with an appointment as an Assistant Professor at MCV. In
1991, she was asked to assume the position of medical director of
the ECC in addition to her teaching responsibilities. She
received $35,000 annually for her work as medical director. These
funds came from the state. [2]

Dr. Samuels’ duties as medical director included arranging for
physician coverage of the ECC, responding to complaints with
respect to the operation of the ECC, and reviewing patient charts
in connection with the administrative management of the ECC. She
did not hire or fire the physicians or any other personnel in the
ECC and was not designated as an attending or admitting physician
for ECC patients. There was no requirement that Dr. Samuels
approve or be consulted about treatment decisions for the
patients in the ECC. The ECC was not part of any training program
or residency rotation for medical students at MCV. Thus, even
though the title "medical director" implies
responsibility for the medical care of patients, the record
supports the trial court’s determination that Dr. Samuels, as
medical director of the ECC, performed administrative functions
for the state in the operation of the ECC and was not performing
the duties of an attending physician in that capacity.

Accordingly, we will affirm the trial court’s determination
that Dr. Samuels was an administrative agent for a state
institution, exercising substantial discretion in carrying out
her administrative duties, and was, therefore, entitled to
sovereign immunity. [3]



Benjamin also assigns error to the entry of summary judgment
in favor of UIMF, arguing that whether Dr. Samuels was UIMF’s
agent in the operation of the ECC was a material fact in issue
and, therefore, summary judgment was inappropriate. We disagree.

Resolution of Benjamin’s challenge to the summary judgment
order requires a review of the procedural development of the
case. An evidentiary hearing was held on the sovereign immunity
plea. At that hearing, ore tenus testimony was
presented by both Dr. Samuels and Benjamin. Benjamin also
introduced deposition testimony. Dr. Samuels produced evidence
showing that UIMF is a private, non-profit corporation, tax
exempt under ? 501(c)(3) of the Internal Revenue Code and
organized for the private practice of medicine by faculty in the
Internal Medicine Department of the Medical College of Virginia.
The members of the corporation are those physicians on the
faculty of the Department who also engage in private practice.
UIMF bills the private patients of members for services received
and pays the members for services they render to the private
patients. Dr. Samuels was a member of UIMF and was paid for her
services to private patients by UIMF. This payment was separate
from the compensation she received from the Department.

The evidence also established that the ECC is a non-acute care
facility maintained by MCV Hospital for the treatment of
non-emergency, walk-in patients, many of whom are indigent. In
1994, the ECC was staffed by two full-time physicians and by
physicians who worked in the ECC at night or on weekends,
generally referred to as "moonlighting" physicians.
Moonlighting physicians were paid directly by the Hospital.

John C. Girtman, III, Executive Director of UIMF, testified
that UIMF receives no benefit from Dr. Samuels’ service as
medical director of the ECC, does not bill for patients seen in
the ECC, receives no financial benefit from the ECC, and is not
involved in any way in the daily operation of the ECC.

Benjamin introduced two letters which she argued contradicted
this evidence and supported the conclusion that Dr. Samuels was
acting as an agent for UIMF, not for the state, in her capacity
as medical director of the ECC. Both letters were written by a
Hospital administrator to Girtman. The first letter, dated April
8, 1992, stated that two full-time physician positions in the ECC
"will be set up and recruited for by U.I.M.F." and
stated that the positions were being "created through
UIMF." The second, dated January 29, 1993, recited
"commitments" of the Hospital for staffing and
direction of the ECC: $35,000 annual salary support for the
medical director of the ECC, a sum of $125,000 annually for
salaries for two full-time physicians in the ECC, and the
continuation of hourly pay for the moonlighting "senior
residents, fellows and attendings" who worked in the ECC at
nights and on weekends. The letter went on to state that billing
for the medical director position and full-time positions would
be "through memo to me," but the moonlighting
physicians would be paid directly at the hourly rate.

Girtman testified that, although these letters were written to
him in his capacity as the executive director of UIMF, he was
negotiating on behalf of the Internal Medicine Department to
insure that sufficient funds were budgeted for the positions.

After considering this evidence and argument of counsel, the
trial court resolved any conflicts in the evidence in favor of
Dr. Samuels and found that Dr. Samuels was acting in an
administrative capacity as the medical director of a state-run
medical facility, the ECC. This determination was made in a June
4, 1996 opinion letter. Six days later, UIMF filed its motion for
summary judgment, asserting that this determination eliminated
any factual dispute regarding whether Dr. Samuels was the agent,
servant, or employee of UIMF while acting as the medical director
of the ECC. Thus, UIMF concluded, there was no basis for imposing
vicarious liability on UIMF for Dr. Samuels’ actions.

At the hearing on the motion for summary judgment, the trial
court read portions of Girtman’s ore tenus
testimony from the evidentiary hearing on the sovereign immunity
plea concerning the lack of UIMF’s involvement, financially or
otherwise, in the "operations, upkeep or fundings of the
ECC." The trial court specifically asked Benjamin’s counsel
if he had any evidence to "counter" Girtman’s
testimony. Benjamin’s counsel did not identify any such evidence,
but argued only that he was not prepared to put on evidence that
day. The trial court subsequently entered the order sustaining
UIMF’s motion for summary judgment.

Under these circumstances, we conclude that the trial court
did not err in entering summary judgment in favor of UIMF. It is
true that, during the consideration of the sovereign immunity
plea, no issue or finding specifically addressed whether an
agency relationship existed between Dr. Samuels acting as medical
director of the ECC and UIMF. Nevertheless, one of the theories
offered by Benjamin to defeat the sovereign immunity plea was
that UIMF was directly involved in the ECC by setting up the ECC,
recruiting physicians for the ECC, and billing MCV Hospital for
the physician and medical director positions in the ECC. The
letters written by the Hospital administrator to Girtman were
introduced to support this theory. Benjamin’s counsel also argued
that a contract existed between the Hospital and UIMF relating to
the payment of Dr. Samuels’ salary as medical director. The trial
court’s determination that Dr. Samuels was acting for the state
in administering the ECC and that the ECC was a state-run health
facility necessarily rejected Benjamin’s theory, evidence, and
argument that UIMF had a connection or contract with the ECC or
with Dr. Samuels, as medical director of the ECC. While Benjamin
may not have agreed, she was not entitled to a relitigation of
that determination, especially given her inability to suggest
additional evidence that could place a material fact in dispute. [4]

Accordingly, for the reasons cited above, we will affirm the
judgment of the trial court.





[1] The four factors of the test
are: (1) the nature of the function performed by the employee;
(2) the extent of the state’s interest and involvement in the
function; (3) the degree of control and direction exercised by
the state over the employee; and (4) whether the act complained
of involved the use of judgment and discretion. Messina,
228 Va. at 313, 321 S.E.2d at 663.

[2] This amount was included in MCV
Hospital’s budget, but it was delivered to Dr. Samuels as part of
the compensation she received from the Department of Internal

[3] We do not address Benjamin’s
argument that the trial court erred in finding that no
doctor-patient relationship existed between Dr. Samuels and
Yukema because that argument is also based on Benjamin’s theory
that Dr. Samuels was acting in the capacity of an attending
physician, like Dr. Hakala in James and Dr. Bourgeois in Lee
v. Bourgeois
, 252 Va. 328, 477 S.E.2d 495 (1996).

[4] Benjamin also assigned as error
the use of the depositions she introduced in the sovereign
immunity hearing to decide the motion for summary judgment,
absent her agreement. Rule 3:18. The ore tenus
evidence cited above, however, supports the trial court’s
conclusions and there is nothing in the record to indicate the
trial court used the depositions in deciding the summary judgment
motion. Therefore, this assignment of error is without merit.