dissenting.
Being unable to agree with the tenets of the majority opinion, and having some grave concerns that the opinion contains fault lines that will cause the collapse of official immunity for all professionals in government service and will imperil official immunity for all government employees, both professional and non-professional, in spite of the clear legislative enactments to the contrary, I must respectfully dissent.
This case presents the issue of whether a medical doctor at the Medical College of Georgia enjoys official immunity under the constitution and statutes of this state when he exercises his medical judgment in the performance of a medical operation. The trial court held that Dr. Plouffe was clothed with official immunity when he performed the operation in question, but the majority opinion of this Court reverses the trial court, holding that the doctor should be stripped of that protection because he exercised his medical discretion and not his governmental discretion, and because to do otherwise would not be in keeping with the legislative intent.
My disagreement with the majority is on three broad fronts: (1) It fails to show how the denial of official immunity is in keeping with the legislative intent; (2) it fails to provide any clear test as to how professional discretion is distinguished from official discretion; and (3) it fails to show why partial or complete payment for services provided should be a bar to official immunity protection.
A brief review of the facts is necessary for a proper discussion of the issues involved. This case arose out of a suit filed by the husband of a woman who is in a permanent vegetative state allegedly due to the negligent performance of an operation by Dr. Plouffe while he was employed at the Medical College of Georgia as a professor. Before the medical procedure in question, the patient signed a form acknowledging that the procedure would be performed at a teaching hospital and that students and observers would be present for educational purposes. Prior to the operation, the doctor discussed the operation not only with the patient, but also with the students assigned by the medical college to assist and observe, because his responsibilities as a professor included classroom instruction, conferring with students and other faculty members, and the supervision of students and residents. He also had duties of research and service to patients. The trial court determined that Dr. Plouffe enjoys official immunity because, at the time of the operation in question, he was in the performance of his duties as a professor at the Medical College of Georgia.
1. Any analysis of the issue of official immunity must begin with an attempt to determine the legislative intent. A review of constitutional enactments and legislative provisions clearly shows that the *798legislature intended to insulate state employees from liability and protect them from lawsuits in the performance of their official duties. That intent is set out in OCGA § 50-21-21 (b) which provides as follows:
The General Assembly also recognizes that the proper functioning of state government requires that state officers and employees be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets. Consequently, it is declared to be the public policy of this state that state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions.
With this legislative intent uppermost in my mind, I have sought to analyze the majority’s approach to this problem. The trial court determined that Dr. Plouffe was not acting as an independent contractor at the time of the operation, but was acting pursuant to bis responsibilities as a professor at the Medical College of Georgia. The record shows and the trial court determined that Dr. Plouffe was a full-time professor at the medical college; that at the time of the operation, he was working in a teaching capacity; that at the time of the surgery, he was a “physician professor providing clinical care in conjunction with educational instruction . . . [and that he] participated in the subject surgery to teach a resident doctor and ... he was fulfilling a teaching responsibility at the time.” The record further shows that the medical school assigned patients to doctors for medical treatment, assigned student assistants and observers when operations were being performed, and set aside blocks of time for operations to be performed, all without the doctor taking part in the decisions.
2. We must determine whether Dr. Plouffe was acting in an official capacity when he performed the operation in question. The majority opinion at 793 states that “the decisive question in this case is whether Dr. Plouffe was acting within the scope of his official state duties. . . . If he was, then he is protected from suit by OCGA § 50-21-25. . . . [W]e conclude that he was not acting in the course of his official duties as a state employee in his treatment of Ms. Keenan.”
The opinion goes on to say that Dr. Plouffe was not acting within the scope of his employment because “he had distinct obligations to Ms. Keenan that were independent of his official duties.” But the majority opinion fails to say what those duties were. If they were duties imposed on him either ethically or professionally as a doctor, then those were the duties he was employed by the Medical College *799of Georgia to perform. As a professional, he was hired to exercise his discretion as a doctor.
Noticeably absent from the majority opinion is any mention whatsoever of Azizi v. Bd. of Regents, 132 Ga. App. 384 (6) (208 SE2d 153) (1974), which was cited by the trial court in support of its determination of official immunity:
The contention that the operation of a hospital in conjunction with the medical college is not a “governmental function” is without merit. Public education is a governmental function and the Medical College of Georgia is an essential unit of this function. A medical college without a hospital in conjunction therewith would be like a buggy without a horse, or in more modern parlance, an airport without aircraft.
The appellate courts of this State have reaffirmed Georgia’s commitment to official immunity in several recent cases, e.g., Miller v. Ga. Ports Auth., 266 Ga. 586 (470 SE2d 426) (1996); Christensen v. State of Ga., 219 Ga. App. 10 (464 SE2d 14) (1995). Of particular importance is the language of Christensen, where the court states at 14,
It [is] 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.]
Georgia is not alone in its desire to clothe government employees with official immunity. Other states have been equally enthusiastic in doing so. Smith v. Arnold, 564 S2d 873 (Ala. 1990); Gargiulo v. Ohar, 387 SE2d 787 (Va. 1990); Canon v. Thumudo, 422 NW2d 688 (Mich. 1988).
If the majority seeks to hold that Dr. Plouffe was acting outside the scope of his employment at the time he performed the operation in question, it fails to show how the trial court erred in determining otherwise.
I am even more troubled by the majority’s statement that “the duties alleged to have been violated in this case relate strictly to the medical care provided to Ms. Keenan and do not call into play what might be termed ‘governmental considerations,’ such as the allocation of state resources for various types of medical care.” The record *800shows, however, that the provision of medical care is part and parcel of Dr. Plouffe’s duties as a teacher at the Medical College of Georgia. The distinction between medical discretion and governmental discretion set forth in the majority opinion is a distinction without a difference. Furthermore, we are not given any guidance whatsoever as to how to determine whether a professional’s actions are within or outside the scope of his employment. Leaving the law with no measuring tool is an invitation to haphazard application of the law. Such an approach creates uncertainty and unpredictability in.an area that is in need of guidance and direction.
This decision can have far-ranging consequences since it is not limited to the facts of this case. Under the majority’s approach, if professionals in government employment exercise professional judgment, they will be stripped of official immunity, and the effect will not be limited to doctors with the Medical College of Georgia. This ruling will bring within its sweep all professionals in government, including lawyers, engineers, and accountants, just to name a few. It will bring to a halt all research projects conducted by state officials, all pilot projects, all experiments that are conducted by professionals in state government, because their actions will involve the exercise of professional judgment and discretion.
3. If the majority’s holding is based to any degree on the fact that Dr. Plouffe received some payment through an association established through the Medical College of Georgia to provide care to patients for a fee, it should say so. However, if such a statement were made in the majority opinion, it would fly in the face of the record which shows that the Medical College of Georgia Physician Practice Group Foundation, through which Dr. Plouffe was allowed to treat patients, was governed by Articles of Association which provide that professional services would be rendered by the Group “in accordance with the patient care policies of the Medical College of Georgia,” and that the funds for the operation of the Group would be disbursed for the benefit of the Medical College of Georgia. According to the Articles of Association, the purpose of the Physician’s Practice Group is “to acquire and administer funds and property which, after payment of necessary expenses, shall be devoted exclusively to charitable, scientific, and educational purposes for the benefit of the Medical College of Georgia.”
If pay, either partial or complete, is a determining factor in vitiating official immunity, then this case will have extremely dire consequences. The trend throughout the country is to provide for some type of payment by citizens who receive government supported services. This is true not only in the medical arena, but in many other arenas, from medical services to legal services to social services. If we strip government professionals of their official immunity simply *801because they participate in programs where the recipients pay in whole or in part, we will sign the death warrant for such programs arid an even greater burden will be imposed on government to provide services completely free even when recipients can pay some, if not all, of the expenses. Such a consequence surely was not contemplated by the legislature in enacting statutes providing for official immunity.
Decided March 3, 1997 Reconsideration denied April 4, 1997. Mills & Moraitakis, Roger Mills, Nicholas C. Moraitakis, Glenn E. Kushel, for appellants. Michael J. Bowers, Attorney General, Patricia Guilday, Assistant Attorney General, Dye, Tucker, Everitt, Wheale & Long, Duncan D. Wheale, Hull, Towill, Norman & Barrett, Patrick J. Rice, for appellees. Franklin, Taulbee, Rushing, Bunce & Brogdon, Rowe Brogdon, Jr., Cook, Noell, Tolley & Aldridge, J. Vince Cook, Alston & Bird, G. Conley Ingram, Elizabeth Bertschi, amici curiae.Official immunity has as its purpose the protection of public agents from personal liability and from unnecessary lawsuits arising from the performance of discretionary acts within the scope of their authority. See Shuman v. Dyess, 175 Ga. App. 213 (333 SE2d 379) (1985). That purpose can best be achieved by applying official immunity in this case because the facts are clear: Dr. Plouffe was performing medical procedures in his official capacity as a professor at the Medical College of Georgia; the procedure was performed at a government-affiliated facility; and it was performed pursuant to Dr. Plouffe’s duties as a college professor. Even though he exercised his professional judgment and discretion, the operation was performed, in part, to teach students proper medical procedures, and was performed in accordance with medical school policy and procedure. If such conduct renders him liable, then official immunity is mortally wounded.