2.5 Immunity for Health Care Providers

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

2.5 IMMUNITY FOR HEALTH CARE PROVIDERS

2.501 Sovereign Immunity.

A. In General. Under the doctrine of sovereign immunity, physicians and other health care providers may be immune from civil liability for

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acts of simple negligence ⁷⁸ while employed by a government-run health care institution. ⁷⁹ Whether a health care provider is immune depends on the particular facts and circumstances of each case. In determining whether immunity applies, courts examine the following four somewhat nebulous factors:

1.	The nature of the function performed by the employee;
2.	The extent of the state's interest and involvement in the function;
3.	The degree of control and direction exercised by the state over the employee; and
4.	Whether the act complained of involved the use of judgment and discretion. 80

Application of this four-part "test" has led to varied and somewhat unpredictable results.

B. Immunity Found to Apply. Sovereign immunity has been applied to protect hospital administrators as well as surgical interns and residents at the University of Virginia Hospital. ⁸¹

In Klein v. Boyle, ⁸² the chairman of the ophthalmology department at the University of Virginia was found immune for the actions of an ophthalmology resident who negligently diagnosed a premature infant's ocular condition. The ophthalmology department chairman was immune because he had not established a physician-patient relationship with the injured infant, and his negligence was closer to "negligent teaching" than negligent treating, as he had merely performed administrative and teaching functions. ⁸³

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A licensed, board-certified physician who was engaged in medical research at a state institution was entitled to sovereign immunity in a malpractice suit brought by a patient who participated in the research program. The research physician was entitled to sovereign immunity because he was working with direction and supervision and was involved in a project of significant state interest and importance. ⁸⁴

In Lohr v. Larsen, ⁸⁵ the Virginia Supreme Court held that a physician employed by a state-funded and state-controlled health clinic was entitled to the protection of the doctrine of sovereign immunity from liability for alleged acts of ordinary malpractice. The court found that the following factors weigh in favor of granting sovereign immunity:

1.	When the state controls when and where the physician works, the number of patients seen, and the use of equipment and procedures;
2.	When compensation is not related to the number of patients seen or services performed, and the physician has no input as to the fee the patient will be charged;
3.	If the function that the physician was performing was essential to a governmental objective and the government had a great interest and involvement in that function, such as research; and
4.	If discretion vested in the physician is attendant to actions integral to Virginia's interest or function. 86

C. Immunity Found Not to Apply. However, the fact that a physician is employed by a state institution does not assure immunity from civil liability.

In James v. Jane, ⁸⁷ the court held that three full-time University of Virginia medical school faculty members were not immune, even though they were required to teach, perform research, and care for patients. The

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court considered these physicians to be independent contractors because treatment decisions were made on their own, and the state had no control over the doctor-patient relationship.

In McCloskey v. Kane, ⁸⁸ a physician-extender at a state mental hospital was not entitled to sovereign immunity for his failure to diagnose the patient's injury that eventually led to the patient's death. ⁸⁹ The physician-extender was only required to see a limited number of patients, and, in all other cases, he was free to exercise his judgment and discretion regarding which patients to see, and, in all cases, the physician-extender was not under anyone's supervision. Therefore, the court held that the Commonwealth's control over the physician-extender was "at best, slight." ⁹⁰

2.502 Charitable Immunity. Virginia physicians employed by state universities' nonprofit groups, and the groups themselves, are not entitled to charitable immunity from the consequences of their tortious acts. ⁹¹ Whether the group is a "hospital" as defined by section 32.1-123 of the Virginia Code and whether it is entitled to common law charitable immunity are mixed questions of law and fact. In University of Virginia Health Services Foundation v. Morris, ⁹² the University of Virginia Health Services Foundation (HSF) was found not to fall within the definition of "hospital" provided by section 32.1-123, and, therefore, it did not fall within the scope of section 8.01-38 regarding denial of charitable immunity to hospitals. HSF was therefore entitled to a presumption that it operated as a charitable institution because it was formed for charitable purposes. ⁹³ The following four factors were determinative of the conclusion that HSF did not operate with a charitable purpose: (i) HSF was created to correct billing and collection problems; (ii) the ratio of its revenue to the cost of its charitable work was substantially disproportionate; (iii) its incentive...