concurring in part and dissenting in part.
I agree with all except Divisions 2 and 5 and those parts of Division 6 which summarize them.
1. The reason that I must file this partial dissent is that it appears that the official immunity asserted by Dr. Cooper would prevent recovery by Jerry Swoiford, the patient, as well.
It has been held by the Court that the doctor’s approval of the two-week pass as a part of Jerry’s therapeutic/recreational treatment was a discretionary act. It is the nature of the act which controls. Partain v. Maddox, 131 Ga. App. 778, 783 (206 SE2d 618) (1974); Price v. Owen, 67 Ga. App. 58 (19 SE2d 529) (1942). “ ‘The single overriding factor is whether the specific act from which liability alleg*56edly arises is discretionary or ministerial.’ [Cit.]” Shuman v. Dyess, 175 Ga. App. 213, 216 (333 SE2d 379) (1985). Thus it is not who is injured as a proximate result of that act, or what the relationship between the alleged tortfeasor and the injured party is, that determines whether official immunity applies. That is, it makes no difference to the application of the limited official immunity that patient Jerry Swofford’s injuries were attributable to negligence in medical treatment, assuming such latter was proved. Official immunity intervenes even where the negligence by the doctor injures the patient, and not only where it injures third parties. I do not see that the relationship between the tortfeasor and the injured party creates an exception to the official immunity rule here, where there is a physician and patient, any more than did the relationship of warden and inmate in Gray v. Linahan, 157 Ga. App. 227 (276 SE2d 894) (1981). It is inconsistent for the Court to hold that the defendant “was cloaked with official immunity,” which means that the act was a discretionary one performed as part of the defendant’s official duties, and then also hold that the act was merely medical treatment rather than performance of an official duty.
I respectfully suggest that Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985) be overruled because it does not make the distinction between sovereign immunity, which relates to suits against the state and its departments and agencies and insulates the state treasury, and official immunity, which relates to suits against officials and employees personally and insulates their decision-making and their own purses.
It is true that Dr. Miller could not invoke the doctrine of sovereign immunity because he was not being sued as an agent of the state. Ga. Const. 1983, Art. I, Sec. II, Par. IX. Instead, he was being sued individually. The immunity found in Hennessey v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), is of the latter sort.
I agree with the special concurrence in Roberts v. Grigsby, 177 Ga. App. 377, 379 (339 SE2d 633) (1985) that Jackson v. Miller, 176 Ga. App. 220, supra, should be overruled. I cannot find the root of the rule stemming from Jackson. Irwin v. Arrendale, 117 Ga. App. 1 (159 SE2d 719) (1967), cited in Jackson, deals with sovereign immunity, not official immunity, and predates Hennessey.
2. It is difficult to understand that the reasoning in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987) controls this case.
As shown by the record, the insurance covering Dr. Cooper is comprehensive general liability insurance established pursuant to Ga. L. 1977, p. 1051 under a self-insurance scheme by the Department of Administrative Services. That Act, as amended, now comprises OCGA Title 45, Ch. 9, Art. 1. It permits the purchase of insurance, as addi*57tional compensation to officials and employees, to cover them “to the extent they are not immune from liability against personal liability for damages arising out of the performance of their duties or in any way connected therewith.” Section 2 of that Act permitted the self-insurance mechanism as opposed to separate policies purchased by each agency which chose to provide this type compensation for its officials and employees. The scope of the authorization is now codified in OCGA § 45-9-1, and the self-insurance alternative method for implementing the same appears as OCGA § 45-9-4.
The insurance, which is a liability trust fund, agrees to pay only sums “which the insured [employee] shall become legally obligated to pay,” and it expressly states that it “shall be governed by and construed under and in accordance with the laws of the State of Georgia.” Nowhere does it, or the Act, give any indication that the official immunity established much prior to passage of the Act was no longer to be a legal defense.
I fail to understand how the 1983 Constitution of the State of Georgia changed this. Art. I, Sec. II, Par. IX provides for sovereign immunity of the state from suit. Neither the state nor any of its departments or agencies is being sued by Swofford. Thus the limited waiver yielded by the sovereign state in that provision to the extent the General Assembly provides liability insurance which will cover the damages instead of the state treasury being the source for the same, does not seem to relate to plaintiffs’ attempt to reach Dr. Cooper’s own pocket or the insurance provided as compensation to her, which insurance covers her non-immune acts and guards her personal assets by paying when she is found liable. This would generally occur when she is sued for an act other than a discretionary, uncorrupt act done in the performance of her official duties.
The distinction between a suit against the state and a suit against a state employee or official individually was observed in Florida State Hosp. v. Durham Iron Co., 194 Ga. 350, 352 (21 SE2d 216) (1942): “A sovereign State can not be sued in one of its courts except by consent of the proper authorities . . . The rule . . . related to actions . . . where the judgment will affect the State’s control over or diminish its property or assets by enforcing a liability against the same . . . ‘any suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State.’ and can not be brought without her consent ... A suit against a State officer or agent as an individual is not one against the State. Consequently, where State officers or agents are sued personally, the suit is generally maintainable . . .” Id. at 353. See also Crowder v. Dept. of State Parks, 228 Ga. 436 (185 SE2d 908) (1971).
*58Although neither the state nor any of its departments or agencies is a party defendant in this suit, it should be pointed out that the 1977 Act, to make clear that the provision of insurance to protect state employees’ personal assets was in no way to be construed to constitute a legislative waiver of the immunity of the state from suit, expressly so provided in Section 3 thereof. After adoption of the new constitution, the legislature reiterated this position in 1986 when it amended this section, which has been codified as OCGA § 45-9-5, to include the following explicit statement of its intent: “The exercise of authority provided in this article shall not constitute the provision of liability insurance protection under Article I, Section II, Paragraph IX of the Constitution.” Ga. L. 1986, p. 150.
Official immunity is not the same as sovereign immunity. As well-stated in Restatement (Second) Torts, § 895D, Comment B: “The basis of the immunity has been not so much a desire to protect an erring officer as it has been a recognition of the need of preserving independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits. This, together with the manifest unfairness of placing any person in a position in which he is required to exercise his judgment and at the same time is held responsible according to the judgment of others, who may have no experience in the area and may be much less qualified than he to pass judgment in a discerning fashion or who may now be acting largely on the basis of hindsight, has led to a general rule that tort liability should not be imposed for conduct of a type for which the imposition of liability would substantially impair the effective performance of a discretionary function.”
It has been similarly stated in Georgia: “It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that ‘where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.’ [Cit.]” Gormley v. State, 54 Ga. App. 843, 847-848 (189 SE 288) (1936). See Gray v. Linahan, supra.
Considering all of the foregoing, I fail to comprehend how Martin subjects Dr. Cooper to further maintenance of this lawsuit. If the insurance covers only non-immune acts, which is what is authorized by law, it is not involved because as the majority states, this was a discretionary act. If it does cover discretionary acts which were formerly considered immune from suit, it is not the type of insurance which *59waives sovereign immunity under the 1983 Constitution as this is not a suit against the state in the first place and it is not the type of insurance which the state acting through its General Assembly intends to constitute a constitutional waiver.
Decided July 31, 1987 Paul A. Dietrick, for appellants. Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Mary Foil Russell, Assistant Attorney General, Bruce M. Edenfield, for appellee.That being the case, I cannot concur in Division 5 either. In sum, I would uphold the grant of summary judgment to defendant.