Present: All the Justices
TRINICA ANN LEE, AN INFANT, WHO
SUES BY EARTHA K. LEE, HER MOTHER
AND NEXT FRIEND
v. Record No. 952317 OPINION BY JUSTICE ELIZABETH B. LACY
November 1, 1996
F. JOHN BOURGEOIS, M.D.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
In this case we consider whether an attending physician
employed by the state is entitled to sovereign immunity for
alleged acts of simple negligence.
Eartha K. Lee was admitted to the high risk pregnancy
service at the University of Virginia Hospital (University
Hospital) on September 23, 1985, when she was approximately 28
weeks pregnant. Dr. Siva Thiagarajah, Lee's attending physician,
prescribed a management plan for her medical treatment. Dr.
Thiagarajah's plan was to stop preterm labor with drugs and to
monitor Lee for infection. When Dr. Thiagarajah went off duty on
the afternoon of September 27, 1985, Dr. Francis John Bourgeois
took over as Lee's attending physician.
Around five o'clock on the evening of September 27, 1985,
Dr. Julie L. Blommel, a first year resident, was notified by
nurses that Lee was having contractions. Dr. Blommel visited Lee
45 minutes later and determined that she needed to be moved
across the hall to the labor and delivery room for assessment of
whether she was in labor. Around 6:45 p.m., Dr. John Donnelly,
the chief resident of the high risk pregnancy service, performed
a pelvic examination on Lee. Although delivery by cesarean
section was the preferred form of delivery for Lee's condition,
Lee's labor had progressed too far and a cesarean section was no
longer a viable option. Therefore, Dr. Donnelly performed an
emergency vaginal delivery. The baby was in a breech position
and during delivery its head was entrapped when the cervix
constricted upon the baby's neck and head after the delivery of
the legs. In the course of the delivery, Dr. Donnelly applied
traction. The baby's spinal cord was traumatically injured and
she is permanently paralyzed.
The infant, Trinica Ann Lee, filed a motion for judgment by
her mother and next friend, Lee, naming the Commonwealth and
seven doctors, including Drs. Thiagarajah and Bourgeois as
defendants, alleging that they negligently provided medical
treatment to her. The plaintiff nonsuited five of the doctors
and the Commonwealth. One of the remaining doctors, Dr.
Bourgeois, filed a plea of sovereign immunity and a motion for
summary judgment based on that plea. The trial court held that
Dr. Bourgeois was entitled to sovereign immunity and dismissed
Dr. Bourgeois from the case with prejudice. Dr. Thiagarajah was
subsequently nonsuited. We awarded the plaintiff an appeal to
review the trial court's determination that Dr. Bourgeois was
entitled to sovereign immunity.
In determining whether a state employee is entitled to
sovereign immunity in an action alleging acts of simple
negligence, we apply the four-part test set out in James v. Jane,
221 Va. 43, 267 S.E.2d 108 (1980), and Messina v. Burden, 228 Va.
301, 321 S.E.2d 657 (1984). The four factors are: the nature of
the function performed by the employee, the extent of the state's
interest and involvement in that function, the degree of control
exercised by the state over the employee, and whether the alleged
negligent act involved the use of judgment and discretion. Id.
at 313, 321 S.E.2d at 663.
In this case, the trial court focused its analysis on the
first two factors, the function of the employee and the state's
interest in that function. These two factors have previously
been addressed in the context of state-employed physicians. In
James v. Jane, we determined that three physicians employed by
the Commonwealth as faculty members at the Medical School of the
University of Virginia were not entitled to sovereign immunity in
actions for negligence based on allegations that they failed to
exercise reasonable care in attending a patient. 221 Va. at 55,
267 S.E.2d at 114. The rationale of the decision was two-fold.
First, the Commonwealth's paramount interest was that the
University of Virginia operate a good medical school staffed with
competent professors. The Commonwealth's interest in quality
patient care was the same whether that patient was being treated
in a public teaching hospital or in a private medical
institution. Since the actions complained of related to the
provision of patient care, not the educational function of the
faculty members, the state's interest was slight. Second, a
physician's exercise of professional skill and judgment in
treating a patient is not subject to the control of the
Commonwealth. 221 Va. at 54-55, 267 S.E.2d at 114; Lohr v.
Larsen, 246 Va. 81, 85-86, 431 S.E.2d 642, 644-45 (1993).
Since James v. Jane, we have considered other cases
involving allegations of negligence against physicians who were
employed by the Commonwealth. In Gargiulo v. Ohar, 239 Va. 209,
387 S.E.2d 787 (1990), a board-certified physician was employed
by a state hospital as a fellow in a medical research and
training program run by the hospital. We held the employee was
entitled to immunity in an action alleging that she negligently
treated a patient participating in the research program. In
discussing the nature of the employee's function, we concluded
that the alleged negligent acts were performed by the employee in
her capacity as a student which was a function "essential to
achievement of the Commonwealth's goal . . . of training and
maintaining a pool of specialists skilled in a particular
discipline." Id. at 213, 387 S.E.2d at 790.
Subsequently in Lohr, we concluded that a physician treating
a patient for breast cancer in a public health clinic was
entitled to sovereign immunity for alleged acts of simple
negligence. Analyzing the function of the physician employee and
the state's interest, we concluded that treating the patient was
"an essential part of the clinic's delivery of its health care
services" and that the state had a substantial interest in
providing quality medical care for citizens in certain areas of
the state who are economically unable to secure such services
from the private sector. 246 Va. at 86, 431 S.E.2d at 644-45.
In analyzing the employee's function and the Commonwealth's
interest and involvement in that function in this case, the trial
court found that Dr. Bourgeois' function at the time of the
alleged negligent acts was to be "available for consultation by
any member of the obstetrical house staff." Because no member of
the house staff consulted Dr. Bourgeois concerning Lee's
pregnancy and delivery and he had no other personal contact with
her, the trial court concluded that Dr. Bourgeois' function was
that of "a teacher and consultant to residents, as opposed to a
treating physician administering medical care to patients." The
trial court held that in this role Dr. Bourgeois was furthering
the paramount interest of the University Hospital as set out in
James v. Jane, that is, operating a good medical school staffed
with competent professors.
Our review of the record, however, indicates that Dr.
Bourgeois' function at the time of the alleged negligent acts was
more than simply being available to consult with residents or
other members of the obstetrical staff. In his role as attending
physician, his primary function related to the treatment of
patients and is analogous to that of Dr. Hakala, the attending
physician in James v. Jane. We conclude that Dr. Bourgeois, like
Dr. Hakala, is not entitled to sovereign immunity under the
circumstances of this case.
The physicians at the University Hospital are divided into
two categories. The "house staff" category includes interns,
residents, and fellows. The house staff does not have hospital
admitting privileges. The "medical staff" category is comprised
of fully-licensed physicians who have completed their training
and are full-time faculty members in the Department of the School
of Medicine. The medical staff supervises the house staff.
The University Hospital requires that all patients in the
hospital be assigned an attending physician who is a member of
the medical staff. The attending physician is responsible for
determining a treatment plan for the patient and for making
decisions regarding the medical care of the patient. The
attending physician is also responsible for supervising the
patient care administered by the house staff. The house staff
may not undertake certain procedures, such as performing a
delivery by cesarean section, without consulting the attending
physician.
If the attending physician for a patient goes off duty,
another member of the medical staff of the hospital must be
designated as the attending physician for that patient. The
subsequent attending physician has the same responsibilities
regarding the medical care of the patient as the previous
attending physician. *
In this case, Lee arrived at the emergency room with
pregnancy complications. Dr. Allen Hogge admitted her to the
high risk pregnancy service and later Dr. Thiagarajah became her
attending physician. Both Dr. Hogge and Dr. Thiagarajah were
members of the medical staff and the Maternal Fetal Medicine
division of the Department of Obstetrics and Gynecology at the
University Medical School. Dr. Thiagarajah devised a treatment
*
The trial court and Dr. Bourgeois refer to the doctor's
role as an "on call attending" or an "on call faculty member."
These terms are not defined in the record and the record
speaks only of an "attending physician" in terms of the
requirements for patient care.
management plan for Lee. Dr. Thiagarajah and various interns and
residents, under Dr. Thiagarajah's supervision and direction,
attended to the care of Lee.
On September 27th, Dr. Bourgeois became the attending
physician for Dr. Thiagarajah's patients. As part of the
transfer of patients from one attending physician to another, Dr.
Thiagarajah reviewed the condition and status of his patients
with Dr. Bourgeois. According to Dr. Bourgeois, the patients
were not identified by name, but their conditions were summarized
in general categories. In accepting this assignment as attending
physician, Dr. Bourgeois testified that he assumed the same
responsibilities for Lee's care as those borne by Dr.
Thiagarajah. He acknowledged that, as attending physician, he
became responsible for making the final decisions on Lee's care.
He could examine Lee, review her chart, change Dr. Thiagarajah's
treatment plan, and alter instructions to the residents regarding
notification of labor or the method of delivery. As attending
physician, Dr. Bourgeois was also obligated to respond to
inquires from the residents regarding the care of the patients.
As the trial court noted, the role of the attending
physician includes teaching responsibilities, particularly when
responding to questions raised by residents or other members of
the house staff. However, the hospital policy requiring an
attending physician for each patient at all times is not
primarily directed to the goal of good teaching practices, but to
insuring that patients receive competent care. Furthermore, the
General Assembly has required that all persons in the category of
house staff be responsible and accountable to a licensed member
of the hospital staff. Code §§ 54.1-2960, -2961. The care of
the patient could not be, and was not, left solely to the house
staff. Thus, the function of Dr. Bourgeois as attending
physician was directly related to assuring that the patient, in
this case Lee, received the proper care, whether delivered
directly by him or indirectly through a member of the house
staff.
The trial court and Dr. Bourgeois put significant emphasis
on the fact that Dr. Bourgeois did not engage in any direct
treatment of Lee and was not consulted by a member of the house
staff regarding her treatment. The argument that the absence of
action by the attending physician or the failure of a resident to
call on the attending physician makes the attending physician's
function solely a teaching function is not persuasive. Dr.
Bourgeois accepted Lee as a patient for whose care he was
responsible when he agreed to replace Dr. Thiagarajah as Lee's
attending physician. Dr. Bourgeois used his professional medical
judgment when he determined that the medical treatment plan
devised for Lee by Dr. Thiagarajah was proper and would remain in
place during Dr. Bourgeois' time as attending physician. As
noted above, Dr. Bourgeois also used his professional judgment
regarding Lee's treatment when he decided that he did not need to
examine her or her charts or engage in any other clinical
evaluation of her at the time he became her attending physician.
The responsibility of an attending physician and the decisions
incumbent upon one in that position are directly aimed at
insuring quality care for the patient. While the acts which Dr.
Bourgeois did, or did not do, may be relevant to issues of
liability, his acts or omissions are not dispositive on the issue
of sovereign immunity in this case.
The only difference between Dr. Bourgeois and Dr. Hakala, an
attending physician in James v. Jane, is that Dr. Hakala was
consulted as to the need for surgery and was present in the room
while the surgery was performed by another. 221 Va. at 49, 267
S.E.2d at 111. Dr. Hakala did not render any direct treatment to
the patient. Nevertheless, we held he was not entitled to
sovereign immunity because the alleged acts of negligence
occurred as part of patient care, not as part of maintaining a
good medical school, and the acts involved the exercise of
professional medical judgment, a function beyond the control of
the Commonwealth. Id. at 54-55, 267 S.E.2d at 114.
Because we find that Dr. Bourgeois' function as an attending
physician in this case was related to patient care and that acts
taken regarding patient care are within the professional medical
judgment of the physician, we conclude that the state's interest
and degree of involvement are slight. Id. Therefore, Dr.
Bourgeois is not entitled to sovereign immunity for the alleged
negligent acts raised in this action.
Accordingly, the judgment of the trial court will be
reversed and the case remanded for further proceedings.
Reversed and remanded.