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MD with dual role claims immunity

cville_mainAn anesthesiologist at the University of Virginia Medical Center who allegedly mismanaged a patient’s intubation says he is immune from a medical malpractice suit filed by the patient’s estate.

Relying on a Supreme Court of Virginia decision issued a year after the plaintiff filed suit, the doctor is invoking the defense of sovereign immunity. The judge has ruled that the jury should determine the question.

The estate first filed suit in state court in 2013, but nonsuited that action. It refiled on June 26, 2015, in Charlottesville federal court.

Three weeks before discovery closed, the defendant first notified the plaintiff that the defendant doctor intended to raise the defense of sovereign immunity, based on the Supreme Court’s June 2016 decision in Pike v. Hagaman (VLW 016-6-043).

In Pike, a divided high court upheld, on sovereign immunity grounds, a court’s dismissal of a med-mal suit against a nurse at Virginia Commonwealth University who allegedly failed to properly position a patient’s head after complicated oral surgery.

After allowing additional discovery related to the sovereign immunity defense in the Charlottesville case, the district court denied the doctor’s motion for summary judgment.

Under the agreements among the doctor, his UVA-affiliated practice group and the UVA Medical Center, the threshold issue of the doctor’s status as a state employee became a question for the jury.

There are too many factual issues regarding the nature and scope of the UVA doctor’s employment to decide the immunity issue on summary judgment, said Chief U.S. District Judge Glen E. Conrad.

Emergency surgery

Joy Anne Thomas underwent aortic valve replacement surgery at the University of Virginia Medical Center in January 2013. Following the procedure, she was transferred to the Medical Center’s Thoracic Cardiovascular Post-Operative Unit. A few hours after her arrival, she had emergency surgery, and she died several days later due to neurological complications.

Thomas’ death certificate identified the cause of death as “anoxic brain injury” due to “esophageal intubation.” Defendant Dr. Robert H. Thiele was the attending physician responsible for intubating Thomas before the emergency surgery; he was not assisted by any residents.

When Thomas’ estate sued Thiele for negligence in performing the intubation, causing her death, Thiele responded with a claim to sovereign immunity.

Thiele is board certified in anesthesiology, critical care and advanced perioperative transesophageal echocardiography, according to the summary judgment record. He is employed by both the UVA School of Medicine and the UVA Physicians Group, a nonprofit corporation organized to coordinate and deliver patient care at the Medical Center.

As a UVA Medical School faculty member, Thiele primarily engaged in teaching, research and scholarly activities; as an employee of the UVA Physicians Group, he provided professional health care services to Medical Center patients.

Agreements between the Physicians Group and the Medical Center expressly stated that the group and its physician employees are “independent contractors” with respect to the Medical Center, that there is no employer/employee relationship and that the Medical Center does not control the practice group doctors’ professional judgment.

Impact of dual role

Thiele’s court filings assumed that the standard test for sovereign immunity, from the 1980 Virginia Supreme Court case James v. Jane, controlled. But Conrad said he first had to examine whether the doctor was an employee of the commonwealth operating within the scope of state employment during treatment of Thomas.

The question of “whether Dr. Thiele was acting as an employee of the state at the time he treated Thomas” is “generally a question of fact for a jury,” Conrad wrote.

Thiele was employed by both the medical school and the Physicians Group, which provided patient care to Medical Center patients. The medical school and Medical Center are both state agencies.

A reasonable jury, however, “could find that the Physicians Group and its employees are independent contractors for which the doctrine of sovereign immunity is unavailable,” the court said. Or a jury could find that the doctor’s alleged acts of negligence were performed outside the scope of his employment with the Medical School.

“The mere fact that one of Dr. Thiele’s employers is a state agency is not dispositive,” the judge said. The evidence on summary judgment created a triable issue as to whether the doctor was acting within the scope of his state employment at the time he performed the acts complained of by the plaintiff, he concluded.

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