ANALYSIS OF JULY 7, 2022 SUPREME COURT OPINION
(Posted July 7, 2022) For the first time in four weeks, we have a new published decision from the Supreme Court of Virginia. Patterson v. City of Danville is a medical negligence action, a claim for the wrongful death of an inmate at a minimum-security corrections facility. The appeal implicates derivative sovereign immunity.
The facility employed a doctor to see and treat all inmates; detailed regulations governed his actions. Today’s opinion notes that the doctor had no discretion to refuse to treat an inmate, and inmates had no choice of another doctor.
This inmate began to receive care from the staff doctor within days of his incarceration. The facts section of today’s opinion recites several instances of such treatment for conditions ranging from confusion to hyponatremia (a dangerously low level of sodium in the blood) to gastric reflux. Each time, the doctor prescribed a course of treatment, usually including medication.
Three months after his admission the inmate suffered a heart attack. He was resuscitated “but he never regained consciousness” before dying five months later in a local hospital.
His estate filed a medical-malpractice action against several defendants including the doctor. The suit alleged simple and gross negligence. The case proceeded to a bench trial on the defendants’ immunity pleas. At that trial, the circuit court sustained the pleas and dismissed the action.
The Supreme Court awarded the estate an appeal, and today it affirms the dismissal. Today’s opinion notes that “Only the claims against [the doctor] remain in contest on appeal.” In that light, I’m a bit surprised that the caption of the case lists the City as the primary appellee; but that doesn’t affect the analysis.
The court reviews sovereign-immunity jurisprudence in medical actions and concludes that this case most resembles Lohr v. Larsen, a 1993 decision involving a doctor at a public health clinic. The court today examines the four factors in the familiar James v. Jane test: the nature of the function, the government’s involvement and interest, the degree of governmental control over the employee, and the presence (or absence) of judgment and discretion by the employee.
Justice Kelsey, writing for a unanimous court, holds that the first two tests are uncontroversial and easily satisfied. The key to today’s analysis is the interplay of the third and fourth. The government exercised significant control over the doctor’s actions, and doctors necessarily exercise inherent discretion in caring for patients. This leads the court to conclude that the doctor is, indeed, immune from ordinary negligence.
The discussion of the gross-negligence claims is swift and predictable. Because gross negligence is the want of even scant care, and the estate pleaded that this doctor cared for the patient on multiple occasions during the inmate’s incarceration, the Supreme Court agrees with the circuit court’s decision to sustain a demurrer to that count. It cites a number of past decisions that honor this boundary, including one that held, “The standard is indifference, not inadequacy.”
Today’s opinion is of particular note because Justice Kelsey takes time to observe the ongoing debate over the continuation of sovereign immunity. He cites multiple Boyd Graves Conference studies that observe sharp disagreement over whether the Commonwealth’s laws should continue to honor this old principle. After all, the original basis for immunity was the concept that “you can’t sue the King in the King’s court.” We fought a revolution to rid ourselves of a king, but this vestige of royal privilege endures.
The justices today “do not contest” the assertion that the sovereign-immunity debate is “worth having in modern times.” But the court draws the line at the proper actor for any change to this judge-made doctrine, holding that the ball is in the legislature’s court to consider and adopt any needed changes. It quotes this passage from a recent SCV opinion, citing St. George Tucker, one of the early lions of Virginia jurisprudence: “In Virginia, it would be a violation of the constitution for the courts to undertake to supply all defects of the common law not already supplied by statute. That is the exclusive province of the legislature.”
If it seems incongruous to you that the courts should shrug off the need to address their own judicially created legal doctrines, placing that responsibility on another branch of government, then you’re not alone. But for now, sovereign immunity remains “alive and well” in the Commonwealth.