PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Stephenson, S.J.
CARL F. McCLOSKEY, ADMINISTRATOR OF
THE ESTATE OF JOHN W. McCLOSKEY
OPINION BY
v. Record No. 040264 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 5, 2004
TIMOTHY KANE, M.D.
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
In this appeal, we decide whether the trial court erred in
dismissing the plaintiff's negligence action based upon the
doctrine of sovereign immunity.
I
Carl F. McCloskey, Administrator of the Estate of John W.
McCloskey (the Plaintiff), filed a wrongful death action against
Timothy Kane, M.D. (the Defendant), alleging that John W.
McCloskey (the Decedent) died "as a result of the negligence
. . . of [the Defendant], who committed malpractice while
treating [the Decedent]." The Defendant filed a plea of
sovereign immunity. By order entered November 7, 2003, the
trial court granted the Defendant's plea and dismissed the
matter with prejudice. We awarded the Plaintiff this appeal.
II
A
We will summarize the Plaintiff's negligence claim
primarily from a reading of his motion for judgment. On
December 15, 1994, the Decedent, aged eighteen years, was
involuntarily committed to Western State Hospital (Western
State). He was suffering from clinically diagnosed bipolar
disorder. At some time during his three days as a patient at
Western State, the Decedent experienced a violent assault,
likely through his rectum. On the morning of December 18, the
Decedent was found lying on the floor, vomiting and complaining
of severe abdominal pain and of constipation. The nurse on duty
notified the Defendant, who was the physician on duty at the
time of the Decedent's complaints.
The Defendant did not examine the Decedent at that time,
but ordered a suppository. At noon that day, the Defendant was
informed that the Decedent's complaints persisted and that he
had vomited his own feces. The Defendant examined the Decedent
and ordered an x-ray.
The Defendant did not have a radiologist read the x-ray.
Instead, the Defendant read the x-ray and failed to note the
presence of free air in the Decedent's abdominal cavity. The
Defendant ordered a soapsuds enema, which worsened the
Decedent's condition.
Later that day, the Defendant was informed that the
Decedent's condition had not improved. Thereupon, the Defendant
decided to transfer the Decedent to the University of Virginia
Medical Center at Charlottesville (UVA Medical Center). The
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Decedent was transported, contrary to Western State's policy, in
a security van rather than an ambulance.
The doctors at the UVA Medical Center promptly diagnosed
the Decedent's condition, but, by that time, the Decedent's body
was so infected and weak that he could not recover. The
Decedent lapsed into a coma, struggled for 14 months, and
finally died on February 24, 1996.
B
Western State is a state mental hospital, operated under
the authority of the Department of Mental Health, Mental
Retardation and Substance Abuse Services (the Department)
pursuant to Title 37.1 of the Code of Virginia. Western State
is "operated by the Department . . . to provide mental health
care to all eligible patients regardless of [their] ability to
pay for such care."
The Defendant was a "physician extender," classified as a
"P-14" doctor, meaning he worked part-time, was paid hourly, and
received no state benefits. His job was "to help the
psychiatrists with the medical problems." He was not a
psychiatrist; rather, he was a resident in psychiatry at the
University of Virginia.
The Defendant was on duty for weekend shifts to respond to
emergent non-psychiatric medical situations. He requested the
on-call weekend shifts that suited his schedule, and he could
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choose to work between one and four 12- or 24-hour shifts a
month.
While on duty during weekend shifts, the Defendant was not
consistently engaged in treating patients, and he was permitted
to sleep when not seeing patients. Conversely, full-time, "P-3"
doctors at Western State worked a 40-hour week and were not
allowed to sleep at work.
The Defendant was not authorized to hire or fire any of
Western State's employees. He did not have access to the state
employee grievance procedure, as did the full-time, "P-3"
doctors. The details of his schedule were not dictated or
controlled by Western State, and he was not directly supervised
or controlled by anyone at Western State. Western State policy
required the Defendant to see a patient when requested to do so
by a nurse.
At the time the Defendant was treating the Decedent,
Western State "had 15 or 16 psychiatrists who would have been
responsible for overall [psychiatric] care." Western State also
"had two internists assisted by four or five physician extenders
to help the psychiatrists with the medical problems."
III
In determining whether a state-employed physician is
entitled to the protection of sovereign immunity, a court must
apply the four-factor test first set forth in James v. Jane, 221
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Va. 43, 282 S.E.2d 864 (1980). Those four factors are: (1) the
nature of the function performed by the employee, (2) the extent
of the state's interest and involvement in that function, (3)
the degree of control exercised by the state over the employee,
and (4) whether the alleged negligent act involved the use of
judgment and discretion. Id. at 53, 282 S.E.2d at 869. Accord
Lee v. Bourgeois, 252 Va. 328, 331, 477 S.E.2d 495, 497 (1996).
Both parties in the present case agree that James is
controlling. They disagree, however, with respect to its
application to the facts presented.
The Plaintiff contends that Western State's primary
function is to provide psychiatric care to its patients and that
the Commonwealth's interest therein is great. The Plaintiff
further contends that the Defendant's primary function was to
provide limited medical care, as opposed to psychiatric care, to
Western State's patients. This function, the Plaintiff asserts,
is only incidental to Western State's primary function, and,
therefore, the Commonwealth's interest and involvement therein
is slight. Additionally, according to the Plaintiff, the
Commonwealth exerted little control over the Defendant.
On the other hand, the Defendant contends that Western
State's psychiatric and medical functions are inextricably
linked, and, therefore, the Commonwealth had a substantial
interest in the Defendant's actions. Further, the Defendant
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asserts that Western State had substantial control over the
Defendant.
IV
We limit our discussion of James to the factor involving
the degree of control because we find it dispositive in the
present case. In James, the defendant-physicians were employed
by the University of Virginia to teach in the Medical School and
to practice their specialties as attending physicians at the
University Hospital. Their duties were two-fold: to teach and
to attend patients. 221 Va. at 50, 282 S.E.2d at 867. With
regard to the physician-patient relationship, we said that,
when the physician agrees to treat or operate on a
certain patient, although his employment by the
University makes possible the arrangement, the
relationship becomes the personal and confidential one
of doctor and patient, not the Commonwealth of
Virginia and patient. The physician owes his best
professional efforts on behalf of the patient, and the
patient expects, and has a right to expect, the same
care and attention from the physician that he would
receive if he were in a private hospital and the
physician in private practice. The exercise by the
attending physician of his professional skill and
judgment in treating his patient, and the means and
methods used, from the very nature of things, are not
subject to the control and direction of others.
Id. at 50-51, 282 S.E.2d at 867-68. We have also said that the
greater the control of an employee's actions by the
Commonwealth, the greater the likelihood of immunity. Lohr v.
Larsen, 246 Va. 81, 88, 431 S.E.2d 642, 646 (1993).
V
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In the present case, the record does reveal that Western
State exercised some control over which patients the Defendant
would see because the Defendant was expected to see patients
that the nurses requested him to see. Otherwise, however, the
Defendant was free to exercise his judgment and discretion about
seeing patients, and he was not under anyone's supervision.
Indeed, as we said in James, "[t]he exercise by the attending
physician of his professional skill and judgment in treating his
patient, and the means and methods used, from the very nature of
things, are not subject to the control and direction of others."
221 Va. at 50-51, 282 S.E.2d at 867-68. We conclude, therefore,
that the Commonwealth's control over the Defendant was, at best,
slight.1
VI
We hold, therefore, that the Defendant is not entitled to
the protection of the doctrine of sovereign immunity from
liability for his alleged negligent acts in treating the
1
In Lohr v. Larsen, we found a state-employed public-health
physician entitled to the protection of the doctrine of
sovereign immunity. 246 Va. at 88, 431 S.E.2d at 646. In doing
so, however, we said that the Commonwealth's paramount interest
was the provision of quality medical care to economically
disadvantaged citizens, and we held that the physician's
function as a public-health physician and his exercise of
discretion were essential to the Commonwealth's objective of
preserving the public health. Id. at 86, 431 S.E.2d at 645. We
further held that the Commonwealth's control and direction of
the physician was great. Id. at 88, 431 S.E.2d at 646. Lohr,
therefore, is distinguishable from the present case.
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Decedent, and the trial court erred in sustaining the
Defendant's plea of sovereign immunity.2 Accordingly, we will
reverse the trial court's judgment and remand the case for
further proceedings.
Reversed and remanded.
2
The Plaintiff also claims that the trial court "erred in
determining that [the Defendant] was a state employee as a
matter of law rather than sending the issue to a jury." If the
Defendant were an independent contractor, he would not be
entitled to sovereign immunity. See Atkinson v. Sachno, 261 Va.
278, 283-84, 541 S.E.2d 902, 905 (2001). For the purpose of
this opinion, however, we have accepted the Defendant's
contention that he was an employee of the Commonwealth and
assumed, without deciding, that he was not an independent
contractor.
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