Present: All the Justices
THOMAS EDWARD PATTEN, III, ADMINISTRATOR
OF THE ESTATE OF MAURA K. PATTEN
v. Record No. 002865 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Humes J. Franklin, Jr., Judge
In this appeal, we consider an issue of sovereign immunity
arising from the trial court's dismissal of a wrongful death
action under an exception in the Virginia Tort Claims Act, Code
§§ 8.01-195.1 through -195.9 (the Act).
Thomas E. Patten, III, administrator of the estate of Maura
K. Patten (the decedent), filed a motion for judgment against
the Commonwealth and certain of its employees alleging, among
other things, that based on their negligence, the decedent died
while she was a patient at Western State Hospital (Western
State). 1 Western State is a residential psychiatric facility
operated by the Virginia Department of Mental Health, Mental
Retardation and Substance Abuse Services, an agency of the
Commonwealth.
Patten alleged that employees of Western State failed to
provide adequate medical treatment to the decedent, which
1
The individual defendants were later dismissed from the
action without prejudice by an order of nonsuit.
resulted in her death. On the date of her death, the decedent
was being held at Western State pursuant to an April 1997
"Certification and Order for Involuntary Admission to a Public
or Licensed Private Facility" (the commitment order). The
commitment order, issued by a special justice for the City of
Staunton, stated in relevant part:
To the sheriff or other authorized officer of said
county or city and to the director of Western State
Hospital . . . [The decedent] [h]as . . . proved to be
so seriously mentally ill as to be substantially
unable to care for [her]self. . . . The alternatives
to involuntary hospitalization and treatment were
investigated and were deemed unsuitable. I have found
that there is no less restrictive alternative to
involuntary hospitalization and treatment in this
case. I therefore, command you, the said sheriff,
other authorized officer or responsible person, to
make provision for the suitable and proper care of the
person named in the foregoing petition and to deliver
such person to the director of Western State Hospital
. . . for involuntary hospitalization and treatment
not to exceed 180 days from this date. Furthermore,
if admission is denied pursuant to §§ 37.1-68 or 37.1-
70, you are hereby authorized to return [the decedent]
to this jurisdiction.
According to the motion for judgment, the decedent suffered
from chronic undifferentiated schizophrenia and had been
involuntarily committed to Western State on a continuous basis
from February 1991 until her death in July 1997. In addition to
schizophrenia, the decedent had a known history of obesity and
chronic obstructive pulmonary disease. As a result of changes
in the decedent's anti-psychotic medication, she experienced a
large increase in weight, which adversely affected her
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cardiovascular system. In November 1996, a medical evaluation
determined that the decedent had an "above average" risk for
cardiac disease associated with her use of one of her
medications.
The decedent's dosage of this drug was later reduced and an
additional drug was added to her daily medications. About a
month later, the decedent informed her physicians at Western
State that she "did not feel well" when taking her medications.
On July 2, 1997, the decedent called some family members
and friends and complained that she "felt like" she was dying.
The next day, Margaret Keller, the decedent's sister, called
officials at Western State to discuss various concerns regarding
the decedent's worsening condition. An employee of Western
State indicated that she would request a full medical evaluation
of the decedent after the July 4th holiday weekend. The
decedent died on July 7, 1997. From July 3, 1997 to July 7,
1997, the only information entered in the decedent's medical
chart were notations of medications administered to her. An
autopsy report stated that the cause of her death was "coronary
insufficiency due to coronary atherosclerosis and cardiomegaly
due to hypertension."
In response to Patten's motion for judgment, the
Commonwealth filed a plea of sovereign immunity. The
Commonwealth relied on Code § 8.01-195.3(4), which provides an
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exception to the Commonwealth's limited waiver of immunity for
tort claims "based upon an act or omission of an officer, agent
or employee of any agency of government in the execution of a
lawful order of any court." The Commonwealth asserted that the
acts alleged in Patten's motion for judgment were taken in the
execution of such an order.
The trial court sustained the Commonwealth's plea of
sovereign immunity and dismissed Patten's motion for judgment
with prejudice. Patten appeals from the trial court's judgment.
Patten argues that the employees of Western State were not
acting pursuant to the execution of a lawful court order when
they treated the decedent. Patten contends that the commitment
order did not require Western State to admit the decedent, and
that its only mandate was directed to the sheriff of the City of
Staunton. According to Patten, the director of Western State
was not ordered to take any action, but had discretion to decide
whether to admit the decedent to that facility.
In response, the Commonwealth asserts that this appeal is
controlled by our decision in Baumgardner v. Southwestern
Virginia Mental Health Institute, 247 Va. 486, 442 S.E.2d 400
(1994), and contends that the acts and omissions of the Western
State employees occurred during the execution of a lawful court
order. Thus, the Commonwealth asserts that under Code § 8.01-
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195.3(4), it is immune from liability for the alleged conduct of
its employees. We agree with the Commonwealth.
In the absence of express statutory or constitutional
provisions waiving the Commonwealth's immunity, the Commonwealth
and its agencies are immune from liability for the tortious acts
or omissions of their agents and employees. Melanson v.
Commonwealth, 261 Va. 178, 181, 539 S.E.2d 433, 434 (2001);
Baumgardner, 247 Va. at 489, 442 S.E.2d at 401; VEPCO v. Hampton
Red. Authority, 217 Va. 30, 32, 225 S.E.2d 364, 367 (1976). In
1981, the General Assembly stated in the Act an express, limited
waiver of the Commonwealth's immunity from tort claims.
Melanson, 261 Va. at 181, 539 S.E.2d at 434; Baumgardner, 247
Va. at 489, 442 S.E.2d at 402; see Commonwealth v. Coolidge, 237
Va. 621, 623, 379 S.E.2d 338, 340 (1989). Because the Act is a
statute in derogation of the common law, its limited waiver of
immunity must be strictly construed. Melanson, 261 Va. at 181,
539 S.E.2d at 434; Halberstam v. Commonwealth, 251 Va. 248, 250-
51, 467 S.E.2d 783, 784 (1996); Baumgardner, 247 Va. at 489, 442
S.E.2d at 402.
The present appeal, which requires us to apply the
provisions of Code § 8.01-195.3(4), is controlled by our
decision in Baumgardner. There, we held that the "court order"
exception of Code § 8.01-195.3(4) applied to a wrongful death
action against the Commonwealth in which the plaintiff's
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decedent was admitted to a mental health institute operated by
an agency of the Commonwealth. She was placed in "isolation" in
a holding cell in the mental health institute and later died
from a cardiac arrhythmia. Id. at 488, 442 S.E.2d at 401. The
plaintiff alleged that the decedent's death was caused by the
negligence of certain employees acting within the scope of their
employment.
The admission order, issued by a general district court,
ordered the director of the mental health institute:
[T]o detain said patient for a maximum of 48 hours
from time of admission to his/her hearing . . . . The
[patient] may also be transported to such other
facility as may be necessary to obtain emergency
medical evaluation or treatment prior to placement in
the hospital. The institution and examining physician
may provide (only emergency) medical and psychiatric
services pursuant to this order. The patient may not
be released prior to the expiration of such period
except by order of court.
Id.
We held that the plain language of Code § 8.01-195.3(4)
barred the plaintiff's tort claim because the alleged acts and
omissions of the institute's employees occurred in the execution
of a lawful court order. Id. at 489, 442 S.E.2d at 402. Under
the present facts, we likewise conclude that Patten's motion for
judgment is barred under Code § 8.01-195.3(4). The decedent was
involuntarily admitted to Western State pursuant to the
commitment order, which authorized "the director of Western
6
State" to admit the decedent for the purpose of "involuntary
hospitalization and treatment" for a period "not to exceed 180
days."
All the acts or omissions alleged by Patten occurred while
the employees of Western State were engaged in the execution of
this order for the involuntary hospitalization and treatment of
the decedent. 2 The term "court order," within the meaning of
Code § 8.01-195.3(4), includes both mandatory and discretionary
acts authorized by that order. As we explained in Baumgardner,
"Code § 8.01-195.3(4) does not exclude discretionary acts from
its scope; instead, it specifically encompasses any claim that
is based upon acts or omissions occurring in the execution of a
lawful court order." Id. at 490, 442 S.E.2d at 402. Thus, to
the extent that Patten's motion for judgment is based on the
performance or omission of discretionary acts, those acts are
not removed from the scope of Code § 8.01-195.3(4).
We also find no merit in Patten's argument that the
commitment order did not require that the director of Western
2
The commitment order directed this involuntary
hospitalization and treatment, subject to two exceptions that
are not relevant here. The order provided that the director of
Western State may deny admission pursuant to Code §§ 37.1-68 and
–70. However, Patten does not claim that the decedent's
admission papers did not substantially conform to the law, as
required by Code § 37.1-68. Likewise, Patten does not allege
that the decedent was not mentally ill. Therefore, the
director's discretion under Code § 37.1-70 to deny admission to
such a person has no bearing on our analysis.
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State take any action regarding the decedent. Such a
construction would render meaningless the order's language
directing the "involuntary hospitalization and treatment [of the
decedent] not to exceed 180 days."
Finally, our conclusion that Code § 8.01-195.3(4) bars the
present action is not affected by our decision in Whitley v.
Commonwealth, 260 Va. 482, 538 S.E.2d 296 (2000). There, we
considered whether the "court order" exception in Code § 8.01-
195.3(4) barred a wrongful death action against the Commonwealth
and certain of its employees based on a claim that the decedent
received inadequate medical treatment while incarcerated at a
state correctional facility. Id. at 486, 538 S.E.2d at 297-98.
The order at issue directed that the decedent be incarcerated,
and did not provide that he be given medical care. Id. at 495,
538 S.E.2d at 303.
We held that the employees giving medical care to the
decedent were not performing acts "in the execution of a lawful
order of any court," as contemplated by Code § 8.01-195.3(4),
but merely were providing medical care to the decedent because
he was an inmate at the correctional facility. Id. at 495-96,
538 S.E.2d at 303. Thus, unlike the acts alleged by Patten, the
acts alleged in Whitley were outside the scope of the statutory
exception.
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For these reasons, we will affirm the trial court's
judgment.
Affirmed.
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