dissenting;
I respectfully dissent.
The issue in this case is not whether the State must provide expensive medical facilities and equipment at the Utah State Prison, or even the number of trained medical personnel the State should employ to provide adequate medical care to prisoners. The issue is whether Utah Code Ann. § 63-30-4(3) and (4) are unconstitutionally overbroad in permitting lawsuits against government employees for tortious conduct only if them acts are fraudulent and malicious.1 On the specific facts of this case, the question is whether a physician who treated an incarcerated person had a legal duty not to commit malpractice on that person. The majority holds that the physician has no legal duty to refrain from malpractice. In short, incarcerated persons are not entitled to competent medical treatment and have no legal remedy for negligent treatment that may endanger one’s health or life, unless the malpractice is either so extreme as to constitute “cruel and unusual punishment” or is fraudulent or malicious. See Bott v. DeLand, 922 P.2d 732 (Utah 1996), also issued today. In effect, prisoners are treated as a subspecies of the human race who are not entitled to reasonable, competent medical care. I find no justification either as a practical or as a legal matter for allowing prison physicians to commit malpractice with impunity. The majority’s ruling is repugnant to fundamental legal precepts and contrary to the dictates of stare decisis.
Article I, section 11 of the Utah Constitution declares that every person has a right to *1169a “remedy by due course of law” for an injury to “person, property or reputation.” By virtue of Utah Code Aim. § 63-30-4(3) and (4), the Legislature has abolished an individual’s right to a “remedy by due course of law” for an injury inflicted on his person, property, or reputation by a government employee unless the employee acts with fraud or malice. In Berry v. Beech Aircraft Corp., 717 P.2d 670, 675-76 (Utah 1985), a unanimous Court stated that one of the framers’ basic purposes in including article I, section 11 in the Declaration of Rights of the Constitution was to prevent politically powerful groups from stripping individuals of legal remedies for injuries to basic personal interests because they have no favor in the legislative halls and are subject to oppression by powerful economic forces, hostility by the majority, or prejudice. Such persons are “generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid” and therefore were guaranteed a remedy “by due course of law” for injuries to their “persons, property, or reputations.”2 Berry, 717 P.2d at 676.3 In DeBry, however, the Court held that the scope of the protections afforded by article I, section 11 had to be viewed in light of the immunities which the courts recognized when the Utah Constitution was adopted; “At the time the Constitution and article I, section 11 were adopted, most remedies for the protection of the interests and values embodied in the terms ‘person,’ ‘property,’ and ‘reputation’ were either common law or equitable remedies, but the law also recognized various tort immunities that were exceptions to those remedies.” DeBry, 889 P.2d at 435. Thus, by implication, the framers intended such immunities to be exceptions to the rights guaranteed by article I, section 11 unless those immunities became obsolete and .were abolished by the Legislature or the Court. Id. at 436.4 The question in the instant case, therefore, is what was the scope of immunity that government employees and officials had as of the time of statehood for their tortious actions?
The official immunity doctrine is a relatively recent development in the common law. As one scholar has stated:
[T]he common law traditionally did not distinguish between public officials and pri*1170vate individuals for purposes of determining the scope of personal tort liability. In fact, courts that drew such a distinction often imposed a stricter standard of care on officials than on private individuals, holding them personally liable for the consequences of simple non-negligent mistakes.
George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Co-lum.L.Rev. 1175, 1178 (1977). Indeed, early Utah cases allow an extremely narrow immunity for governmental officers which applied only when acting pursuant to judicial or legislative mandate.
Over time, however, the courts recognized that imposing tort liability on government officials for the exercise of discretionary policy making functions would “make public officials unduly fearful in their exercise of authority and discourage them from taking prompt and decisive action.” Bermann, supra, at 1178. Accordingly, courts and legislatures provided immunity for officials who exercise judicial, quasi-judicial, or legislative functions. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Bradley v. Fisher, 13 Wall.(80 U.S.) 335, 20 L.Ed. 646 (1871).
The courts and legislatures also created a qualified immunity for administrative officials and employees who perform discretionary functions. See, e.g., Note, The Discretionary Function Exception to Governmental Tort Liability, 61 Marq.L.Rev. 163 (1977); Ber-mann, supra, at 1178-79. The doctrine of official immunity, as contrasted with sovereign immunity, provides those persons who must exercise discretion in making policy decisions and implementing innovative programs with judgmental latitude. The considerations that support immunity for judicial and legislative acts and for discretionary acts of administrative officials do not, however, apply to governmental officials engaged in ministerial acts. The scope of the official immunity doctrine is stated in the Restatement (Second) of Torts § 895D (1975), which provides in pertinent part as follows:
(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
(a) he is immune because engaged in the exercise of a discretionary function.
Clinton v. Nelson, 2 Utah 284 (1877), was the first pre-statehood case to deal with the tort liability of a government officer. A prisoner charged a marshal with false imprisonment and tortious mistreatment. The Court held that “the doctrine is well established, we think, that a ministerial officer, in performing his duties if he acts in good faith [i.e., without malice] is only liable for compensar tory damages for injuries against law, and is not liable for exemplary damages.” Id. at 290 (emphasis added). Furthermore, the Court held, “In a ease where the officer is liable for compensatory damages, that is where no aggravation, no malice is shown— the law fixes the measure of damages at the actual pecuniary loss by reason of the tort.” Id. at 290-91 (emphasis added). By distinguishing between the tortious mistreatment and false imprisonment claims, Clinton makes clear that while the marshal could be held liable for his torts committed in performing ministerial acts, he could not be held liable for those committed while functioning in a judicial or quasi-judicial capacity. See also Snell v. Crowe, 3 Utah 26, 5 P. 522 (1881) (allowing suit against constable for wrongfully excluding property owner from his property).
The majority relies heavily on language in Garff v. Smith, 31 Utah 102, 86 P. 772 (1906), for an extraordinarily narrow definition of the term “ministerial acts.” Garff stated that “a public officer, acting judicially, or in a quasi-judicial capacity, cannot be made personally liable in a civil action, unless the act complained of be willful, corrupt, or malicious, or without the jurisdiction of the officer.” Id. at 107, 86 P. 772. In Garff, a sheep inspector, as a public officer, was statutorily authorized to enact regulations and take specific actions to protect the public health. Garff, 31 Utah at 108, 86 P. 772 (citing 1903 Utah Laws ch. 42, § 4). He was required to exercise what the Court called *1171judicial or quasi-judicial discretion in effectuating his statutory duties.5
Contrary to the majority’s reading of Garff and in accord with the Court’s ruling in Clinton, Richardson v. Capwell, 63 Utah 616, 176 P. 206 (1918), held that the issue of whether a jailer was liable for negligence for failing to provide a prisoner with food, warmth, and proper sanitary conditions was an issue for a jury. Many other courts have held jailers, sheriffs, and other such officials hable for a tortious failure to provide prisoners with such necessities. See eases collected in M.L. Schehenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353 (1950). Provision of these necessities certainly requires some amount of discretion. Yet the discretion is entirely unrelated to any government policy making function.
Clearly the essence of the ruling in Richardson is that a prisoner’s right to the necessities of life could not be tortiously withheld with impunity. Reasonable medical care is one such necessity of life. The majority’s position in the instant case is that prisoners are not entitled to reasonable medical care because of the wholly -unsupported assertion that prison discipline will somehow be harmed if a doctor is held hable for malpractice while actually treating a patient. The majority does not explain how requiring a doctor to meet accepted standards of medical care in diagnosing and treating a patient can adversely affect prison discipline. No other court that I know of has taken such an extreme position.
Benally v. Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962), is in accord with Clinton and Richardson and provides even stronger support for the position that officers owe a duty of reasonable care to prisoners. In Benally, this Court held an officer negligent for failing to protect an intoxicated arrestee from harm caused by his intoxication. The Court stated that the law required the officer to exercise “the degree of care and caution which an ordinary reasonable and prudent person would use under the circumstances” and that an officer was not immune for his negligent ministerial conduct. 14 Utah 2d at 9, 376 P.2d 388 (emphasis added). The case is in accord with a number of official immunity eases from other jurisdictions. See generally M.L. Schellenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353 (1950).
Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367 (1968), does not support the position that ah prison officers and employees have total immunity from civil tort actions. That position is contrary to a vast number of cases from other states and this state. Sheffield rests on the traditional distinction between discretionary and ministerial functions and correctly held that administrative level officials, such as a prison warden, were immune from a suit alleging inadequate supervision of inmates when one inmate stabbed another and there was no foreknowledge of the alleged assault. The decision itself makes clear that its holding pertains only to those in a supervisory capacity. Id. at 317, 445 P.2d *1172367. Clinton, Richardson, and Benally are consistent with Sheffield.
In the instant case, Dr. Schackel was not sued for negligence in performing a supervisory function but for failing to exercise reasonable medical care in the actual diagnosis of a patient’s broken leg. The majority argues that Dr. Schackel’s position cannot be distinguished from other supervisory personnel at the prison who admittedly are immune under Sheffield. Equating the nature of a prison warden’s duties and responsibilities with the duties and responsibilities of a treating physician makes no sense at all for purposes of the ministerial/discretionary distinction under the law of official immunity. With respect to the official immunity doctrine and the purpose that doctrine was intended to promote, supervisory acts of prison administrative and prison medical personnel and a practicing doctor who actually renders allegedly incompetent medical services to an incarcerated patient are simply not comparable.
Indeed, the majority goes so far as to state that any actions involving deliberation or judgment are discretionary. For that extreme proposition, the majority cites Garff v. Smith, 31 Utah 102, 86 P. 772 (1906). As explained above, Garff certainly does not provide a precedent for the Court’s extraordinary, indeed eccentric, definition of a ministerial act as one involving no discretion of any kind. First, that position is plainly contrary to Clinton, Richardson, Benally, and a whole host of other Utah cases, and as far as I know to the rule in every other state in the Union. Second, it is inimical to the policies supporting the doctrine of official immunity. Prosser and Keeton classify discretionary acts that are immune from suit as “in-volv[ing] some fairly high level of policy making.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 132, at 1060 (5th ed. 1984). The purpose behind official immunity is to avoid the chilling effect that liability can have on a public official who must make critical policy decisions. George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.L.Rev. 1175, 1178 (1977). The majority’s definition of ministerial acts far exceeds what is necessary or reasonable to further that policy. A physician treating a patient is not involved in making public policy decisions of any kind.
We explicitly made this point in Frank v. State, 613 P.2d 517 (Utah 1980), which concerned a state-employed health care provider’s liability for malpractice. The Court held that the health care provider acted in a ministerial capacity and was not entitled to immunity for providing negligent medical care. The action against the State was brought under the waiver of immunity provision in the Governmental Immunity Act; the action against the health care provider was a common law tort action in which the health care provider claimed official immunity as a defense. At that time, the Immunity Act had no provision dealing with official immunity of government employees. The Court stated, “The Utah Governmental Immunity Act has no application to individuals; its function is confined to governmental ‘entities.’ ” Id. at 520. In discussing the liability of the State under sovereign immunity, we stated:
The Court recognizes the high degree of careful observation, evaluation, and educated judgment reflected in any modem prognosis, and makes no suggestion that a large measure of “discretion, ” as commonly defined, is not involved. The exception to the statutory waiver here under consideration, however, was intended to shield those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseeable ways from individual and class legal actions, the continual threat of which would make public administration all but impossible. The one-to-one dealings of physician and patient in no way reflect this public policy-making posture, and should not be given shelter under the Act.
Id. Here, the Court defined the terms “discretionary” and “ministerial” under the provision in the Governmental Immunity Act that waives sovereign immunity for negligent acts of government employees.
Later in the opinion, however, the Court held that the same analysis applied in characterizing the nature of the function performed by a government employee for the purpose of deciding whether the employee was engaged *1173in a discretionary act and therefore entitled to official immunity or whether he was not so entitled because he engaged in a ministerial act. “There thus appears no reason to apply a different legal standard to the individual than that applied to the government employer, even though the latter is governed by the statute and the former by common law principles. For this reason, we hold that defendant’s] ... acts in this case were not legally discretionary, but ministerial.” Frank v. State, 613 P.2d 517, 520 (Utah 1980) (emphasis added). Accordingly, the defendant was held liable under the common law because official immunity did not apply. As to the doctrine of official immunity, the Court stated: 6
[C]ommon-law principles of sovereign [sic, i.e., “official”] immunity have been developed, however, which offer protection to the individual under certain circumstances. The ease of Cornwall v. Larsen stands for the proposition that a governmental agent performing a discretionary function is immune from suit for injury arising therefrom, whereas an employee acting in a ministerial capacity, even though his acts may involve some decision-making, is not so protected.
Id. at 520.
Subsequently in Payne v. Myers, 743 P.2d 186, 188 (Utah 1987), this Court stated, “Pri- or to the 1978 amendment [to the Governmental Immunity Act, which for the first time included a provision on official immunity], the doctors, as governmental employees, had no immunity from suit for their simple negligence.” (Emphasis added.) The position in Payne is consistent with sound authority from other states and Utah precedent going back to Clinton, Richardson, and Pe-nally.
A principal rationale for official immunity is the protection of governmental decision making, whether it be at the top level or at some level below, from second-guessing by the courts. There is nothing whatsoever about the rendition of medical treatment that involves governmental decision making. As the court in Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179 (3d Cir.1980), stated:
Reviewing the allegations of the complaint in this ease, it is evident that plaintiff complains of negligent medical treatment by Dr. Coulam. Such allegations are generally agreed to implicate ministerial rather than discretionary conduct, which does not render the government doctor immune from liability. Jackson v. Kelly, 557 F.2d 735, 738 (10th Cir.1977); Henderson v. Bluemink, 511 F.2d 399, 402-03 (D.C.Cir.1974); Spencer v. General Hospital of the District of Columbia, 425 F.2d 479, 489 (D.C.Cir.1969) (en banc) (Wright, J., concurring). The distinction was aptly noted in the latter ease, where it was observed, “This is not to say that the performance of an operation does not involve judgment and discretion. The point is that medical, not governmental, judgment and discretion are involved.” Id.
Id. at 186.
In short, the discretion a doctor employs is not in any way “governmental” discretion, and his acts for purposes of official immunity are ministerial even though they involve some amount of discretion. This Court made that point explicit in Frank v. State, 613 P.2d 517 (Utah 1980), and it is entirely consistent with the principles stated in the early Utah eases of Clinton and Richardson.
This Court’s holding in Frank and its dictum in Payne as to the inapplicability of official immunity to the actions of state-employed health care providers in the actual rendition of medical services accords with the vast weight of judicial authority: actual medical treatment is not entitled to immunity under the official immunity doctrine. A number of cases from other state and federal courts hold that a doctor’s conduct in treating or diagnosing patients is ministerial and is not protected by official immunity. See, e.g., Spencer v. General Hosp. of Dist. of Columbia, 425 F.2d 479, 484 (1969) (Wright, *1174J., concurring); Davis v. Knud-Hansen Memorial Hosp., 635 F.2d 179, 186 (3d Cir.1980); Jackson v. Kelly, 557 F.2d 735, 739-40 (10th Cir.1977); Moss v. Miller, 254 Ill.App.3d 174,192 Ill.Dec. 889, 625 N.E.2d 1044 (1993); Kiersch v. Ogena, 230 Ill.App.3d 57, 172 Ill.Dec. 335, 595 N.E.2d 696, appeal denied, 147 Ill.2d 627, 180 Ill.Dec. 150, 606 N.E.2d 1227 (1992); Watson v. St. Annes Hosp., 68 Ill.App.3d 1048, 25 Ill.Dec. 411, 386 N.E.2d 885 (1979); Gould v. O’Bannon, 770 S.W.2d 220 (Ky.1989); Kelley v. Rossi 395 Mass. 659, 481 N.E.2d 1340, 1344 n. 6 (1985); Cooper v. Bowers, 706 S.W.2d 542 (Mo.Ct.App.1986); Kassen v. Hatley, 887 S.W.2d 4 (Tex.1994); James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980).
It is, of course, inconsistent to hold, as the majority does, that a physician’s treatment of a patient in a state hospital is ministerial but that when a physician treats a prisoner, that treatment is discretionary. There is no analytical basis, in my view, that justifies this inconsistency. Cases from other jurisdictions adhere to logic and consistency and hold that a prison doctor’s treatment of a prisoner is ministerial and that the doctor is not entitled to official immunity for malpractice committed on a prisoner. Moss v. Miller, 254 Ill.App.3d 174, 192 Ill.Dec. 889, 625 N.E.2d 1044 (1993), for example, held that a prison physician was not protected from a malpractice action by official immunity because “[t]he duties the State-employed physicians allegedly breached were those every physician owes one’s patient, rather than ob-Ugations incurred solely by virtue of holding a pubhc office.” Id., 192 Ill.Dec. at 894, 625 N.E.2d at 1049. Likewise, Cooper v. Bowers, 706 S.W.2d 542, 542-43 (Mo.Ct.App.1986), held that because the treatment of patients in a government faeiUty does not involve a governing function, a prison physician had no immunity from a malpractice suit. See also State ex rel. Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975) (fafiure to provide medical aid to prisoner held actionable); Neal v. Donahue, 611 P.2d 1125 (Okla.1980) (doctor held Uable for release of dangerous juvenñe; superintendent of facüity, i.e., supervisory official, held not Uable).
The majority places great rebanee on Schmidt v. Adams, 211 Ga.App. 156, 438 S.E.2d 659 (1993), which I submit rests on a serious confusion of the doctrines of sovereign immunity and official immunity. The majority quotes extensively from the opinion: the physician’s assistant’s “primary concern and duty is the governmental junction of caring for persons confined in jail”; his actions “clearly were undertaken in his official capacity and as part of a governmental function.” (Emphasis added.) Schmidt focused on the nature of a defendant’s activity as being a governmental function, while neglecting the discretionary or ministerial nature of the act.. A governmental function analysis is simply not the correct analytical model to resolve questions of official immunity.7 For example, Connell v. Tooele City, 572 P.2d 697 (Utah 1977), held that a court clerk was Uable for failing to docket the payment of a fine, and because the activity was a ministerial function, albeit a governmental function also, the clerk had no immunity.
On the broader but closely related issue of immunity for physicians employed by state faciüties other than prisons, the Supreme Court of Texas held that “government-employed medical personnel are not immune from tort UabiUty if the character of the discretion they exercise is medical and not governmental.” Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex.1994). The court stated that while the aUocation of medical resources is a discretionary act, actual treatment is ministerial, and once treatment is undertaken, state health care professionals owe their *1175patients the same duty that private medical professionals owe theirs. Id. at 10. The Supreme Court of Virginia reached the same result and held that attending staff at a state hospital were not immune from a negligence suit. James v. Jane, 221 Va. 48, 282 S.E.2d 864, 870 (1980).
The fact is that the law in almost every other jurisdiction is to the same effect. See, e.g., Davis v. Knud-Hansen Memorial Hosp., 635 F.2d 179, 186 (3d Cir.1980); Jackson v. Kelly, 557 F.2d 735, 739-40 (10th Cir.1977);8 Kiersch v. Ogena, 230 Ill.App.3d 57,172 Ill.Dec. 335, 340, 595 N.E.2d 696, 701, appeal denied, 147 Ill.2d 627, 180 Ill.Dec. 150, 606 N.E.2d 1227 (1992); Watson v. St Annes Hosp., 68 Ill.App.3d 1048, 25 Ill.Dec. 411, 415-16, 386 N.E.2d 885, 889-90 (1979); Gould v. O’Bannon, 770 S.W.2d 220, 222 (Ky.1989); Kelley v. Rossi, 395 Mass. 659, 481 N.E.2d 1340, 1344 n. 6 (1985).
The majority cites cases from other jurisdictions which it asserts support its decision. Most of the eases concern the liability of medical personnel engaged in supervisory administrative functions who were not involved in the treatment of patients. For example, the majority relies on Estate of Burks v. Ross, 438 F.2d 230 (6th Cir.1971), which held supervisory psychiatric personnel immune from negligence actions because they exercised only discretionary duties. The majority fails to state, however, that Burks also held hospital staff members liable because their treatment of patients constituted a ministerial function. Burks is flatly contrary to the Court’s position.
The other three cases which the majority relies upon all involve psychiatric malpractice that allegedly resulted in a patient committing suicide or upon release harming a third party. In such cases, the tort duty imposed on the psychiatrist is different because of the extremely difficult discretionary decisions that must be made.9 Smith v. Arnold, 564 So.2d 873 (Ala.1990); Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688 (1988); Baker v. Straumfjord, 10 Or.App. 414, 500 P.2d 496 (1972).
The rule is also well-established that a negligent failure to provide medical care to a prisoner known to be in need of such care is actionable against the sheriff and his surety. Mississippi v. Durham, 444 F.2d 152 (5th Cir.1971); Magenheimer v. State, 120 Ind. App. 128, 90 N.E.2d 813 (1950); Farmer v. State, 224 Miss. 96, 79 So.2d 528 (1955); LaVigne v. Allen, 36 A.D.2d 981, 321 N.Y.S.2d 179 (1971); State ex rel. Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975); State v. National Sur. Co., 162 Tenn. 547, 39 S.W.2d 581 (1931); Smith v. Slack, 125 W.Va. 812, 26 S.E.2d 387 (W.V.1943); M.L. Schellenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353 (1950).
*1176Finally, it is worth noting that prison physicians are in much the same situation as public defenders with respect to manipulation and harassment. Both are paid by the government and serve the needs of incarcerated persons who often harbor deep frustrations and animosities. Both draw on professional knowledge to render critical decisions related to the prisoner’s interests. Yet the United States acknowledged that under common law, public defenders enjoy no immunity from malpractice actions. See Ferri v. Ackerman, 444 U.S. 193, 205, 100 S.Ct. 402, 409-10, 62 L.Ed.2d 355 (1979). As a unanimous United States Supreme Court observed, the duty of the public defender “is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client.” Id. at 204, 100 S.Ct. at 409. This fact distinguishes him from the judge, the prosecutor, and most other public officials. Id. at 202-03, 100 S.Ct. at 408-09. The same is true with respect to a prison physician.
As applied here, therefore, section 63-30-1 is unconstitutional because it deprives Ross of a remedy by due course of law for an injury to his person in violation of article I, section 11 of the Utah Constitution. Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985); Horton v. Goldminer’s Daughter, 785 P.2d 1087 (1989); Payne v. Myers, 743 P.2d 186 (Utah 1987). I also submit that section 63-30-4 violates article I, section 24 of the Utah Constitution because the patent discrimination between medical care standards applied to prisoners and those applied to other patients in state institutions is clearly not necessary, let alone effective, in promoting a rational prison objective. Lee v. Gaufin, 867 P.2d 572, 579 (Utah 1993); Malan v. Lewis, 693 P.2d 661, 669-70 (Utah 1984).
DURHAM, J., concurs.. Sections 63-30-4(3) and (4) state:
(3)(a) Except as provided in Subsection (b), an action under this chapter against a governmental entity or its employee for an injury caused by an act or omission that occurs during the performance of the employee’s duties, within the scope of employment, or under color of authority is a plaintiff's exclusive remedy.
(b) A plaintiff may not bring or pursue any other civil action or proceeding based upon the same subject matter against the employee or the estate of the employee whose act or omission gave rise to the claim, unless:
(i) the employee acted or failed to act through fraud or malice; or (ii) the injury or damage resulted from the conditions set forth in Subsection 63-30-36(3)(c).
(4) An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, unless it is established that the employee acted or failed to act due to fraud or malice.
.Notwithstanding the flatly erroneous assertions to the contrary by the Attorney General, who represents the defendant, this Court has made it abundantly clear that the guaranteed remedy provision of the open courts clause does not constitutionalize the common law. DeBry v. Noble, 889 P.2d 428, 436 (Utah 1995); Berry v. Beech Aircraft Corp., 717 P.2d 670, 676 (1985). Indeed, the meaning of the terms "person," “property,” and "reputation” have evolved over time. DeBry, 889 P.2d at 436. The Attorney General also erroneously asserts that article I, section 11 is procedural only, provides no substantive guarantees for the protections of "person,” "property,” and "reputation” and, indeed, violates the separation of powers. The arguments border on the absurd. First, a vast number of constitutional provisions limit the Legislature’s power to make laws. Such is an important purpose of the Constitution. Such provisions obviously limit legislative power and do not violate the doctrine of separation of power. Second, in Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), we carefully analyzed the history of open court clauses and the language of the Utah provision and similar provisions in various other state constitutions, and were compelled to the conclusion that the Utah provision, like those of a number of other states, does indeed provide substantive constitutional protections to the vital interests embodied in one's “person,” "property,” and "reputation.’-’ Id. at 674—76.
. Berry recognized, however, that the Legislature could modify or abolish remedies at law for the protection of one's "person, property, or reputation” if a two-part test was met. First, the guarantee in article I, section 11 is met if the Legislature provides an effective and reasonable alternative remedy by due course of law to vindicate the person's constitutionally protected interest. Second, if the Legislature provides no substitute or alternative remedy that is substantially equal in value to the remedy that was abolished, then there must be a "clear social or economic evil to be eliminated” that is demonstrated and "the elimination of an existing legal remedy ... [must not be] an arbitrary or unreasonable means for achieving the objective.” Berry, 717 at 680. In the instant case, there is no alternative remedy whatsoever, and there is no clear or demonstrable "social or economic evil to be eliminated” that justifies the denial of a legal remedy to a prisoner for malpractice.
. Of course, new immunities could be created by compliance with the conditions laid down in Berry, 717 P.2d at 680. The majority opinion makes no effort to show that those conditions have been met in denying plaintiff a remedy for an injury to his person.
. Garff must be read in its late nineteenth and early twentieth century context. Cases contemporary with it distinguish between a government employee and a government officer. Professor David notes that "an ‘office' essentially involves an exercise of the sovereignty of the State ... within the legal limits set up by the terms of the delegation of the power. These terms are found in the constitution, charters and statutes." Leon T. David, The Tort Liability of Public Officers, 12 S.Cal.L.Rev. 127, 132 (1939). The United States Supreme Court offered a similar definition: “An office is a public station or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.” United States v. Hartwell, 6 Wall. 385, 393, 18 L.Ed. 830, 832 (1867). Professor David articulated a test for determin-mg wheAer a particular governmental employee is an officer:
Where the powers conferred and duties imposed rest in statutory or constitutional provisions, and Ae functions are in Ae main to be exercised free from Ae intervention of oAer individuals in government, in sovereign functions or undertakings, raAer than in business enterprise, an office is found to exist under most circumstances.
David, supra, at 132 (footnotes omitted) (emphasis added); see also Vaughn v. English, 8 Cal. 39, 41 (1857); State v. Jennings, 57 Ohio St. 415, 49 N.E. 404 (1898); Hartigan v. Board of Regents, 49 W.Va. 14, 38 S.E. 698 (1901); Frank J. Good-now, Principles of the Administrative Law of the United States 223-24 (1905).
. There is no doubt that the Court erred in referring to sovereign bnmunily with respect to individual liability early in the opinion. Id. at 518. That error was later corrected, however. Id. at 520. Sovereign, immunity never applies to immunize individuals. It has always applied only to governmental agencies.
. The majority fails to recognize the distinction between sovereign immunity and official immunity. While the former is an ancient doctrine applicable to states and other governmental entities, the latter is a relatively new innovation and applies only to certain public officials. See George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.L.Rev. 1179 (1977). These two types of immunity are grounded in different policy interests and employ different standards. During the course of its analysis, the majority erroneously applies sovereign immunity standards to decide the issue of official immunity. See generally DeBry v. Noble, 889 P.2d 428, 432-34 (Utah 1995); Standiford v. Salt Lake City, 605 P.2d 1230, 1235-36 (Utah 1980). In contrast, we apply the ministerial/discretionary function test to questions of official immunity.
. Jackson held that the official immunity doctrine did not protect an Air Force physician who was negligent in the treatment of the plaintiff from a malpractice suit. The court stated that Doe v. McMillan, 412 U.S. 306, 319, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973), required a careful inquiry into the scope of the alleged wrongful acts in view of the accused official’s duties. Under that case, the test is whether the defendant was engaged in a discretionary function, that is, "whether defendant’s duties were discretionary, to determine whether defendant is immune from personal liability for acts within the scope of his authority.” Jackson, 557 F.2d at 737. The court stated:
Generally speaking, a duty is discretionary if it involves judgment, planning, or policy decisions. It is not discretionary if it involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required. The key is whether the duty is mandatory or whether the act complained of involved policy making or judgment.
Id. at 737-38 (citations omitted). The court stated further:
This court has twice held that the discretionary function exception does not except the government from liability for negligent medical care. In Griggs v. United States, [178 F.2d 1, 3 (10th Cir.1949)], an army officer died while under treatment in an army hospital and it was alleged the death was caused by the negligent, careless, and unskillful acts of army personnel. We held the discretionary function exception did not apply to medical treatment because it is manifestly plain that the alleged acts of negligence, while involving skill and training, were non-discretionaiy. Id. at 738; see also United States v. Gray, 199 F.2d 239 (10th Cir. 1952).
. I do not wish to endorse the practice of distinguishing psychiatric treatment from medical but only to note that the practice does exist.