Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (III)
This is the fourth in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It concludes the ministerial act exception to Virginia sovereign immunity.
There are four additional sovereign immunity cases evincing that an individual employee like Defendant, Travis Burns, still is liable for “simple negligence in the performance of a ministerial act”. See, Exhibit A, Jennings v. Hart, No. 3:08CV00028, Memorandum and Order (W.D. Va. Mar. 17, 2009)(Virginia law); Hughes v. Lake Taylor City Hosp., 54 Va. Cir. 239 (Norfolk Dec. 13, 2000); Exhibit B, Fender v. Cendana, No. 96-6844, Op. Letter and Order (Albemarle Jan. 28, 1998); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle Sep. 4, 1991). They are dispositive of Gagnon.
In Jennings this year, sheriff department employees denied medical care to an inmate who ultimately died. Memorandum Op. at 1-3. United States District Court properly focused on the particular act in question (rather than the actor’s general position), principally citing James, and denied the motion to dismiss.
“The doctrine of sovereign immunity applies to acts that are discretionary, but not ministerial, in nature. * * * * The fact that the provision of medical care to Jennings initially involved the exercise of some judgment and discretion, however, does not necessarily mean that the Defendants should be entitled to sovereign immunity. Every act involves the exercise of at least some amount of discretion. See, Memorandum Op. at 5 (underlining added)(italics in original). Judge Moon in Jennings delineated, “Whether a matter is truly committed to the discretion of a government employee is therefore a question of degree and requires a analysis of the circumstances of a particular situation. * * * [W]ell before Jennings was taken to the hospital, the circumstances were such that the Defendants lacked the discretion to keep her at the jail and deny her the opportunity to be seen by a neurologist or other medical professional. Id. at 6. (emphasis added).
In Hughes in 2000, nurses and a therapist misclassified a patient as “DNR” versus “full code” status and failed to arrange her emergency transport as ordered, causing death. 54 Va. Cir. at 239. Norfolk Circuit Court correctly focused on the particular act in question (instead of the actor’s general positions), citing principally James, and overruled their special plea. Id. at 242-244.
“It is the judgment and discretion used to perform the particular act in question, not the judgment and discretion used to perform the job generally. Further, it is important to recognize that many acts involve judgment or discretion but that factor alone cannot be determinative.” Id. at 244 (citation omitted)(emphasis added). Judge Morrison in Hughes concluded, “[T]his case involves two allegations that could possibly be classified as purely ministerial and therefore not entitled to immunity . . . . Those two acts involved not real judgment or discretion.” Id. (emphasis added).
In Fender in 1998, a doctor has a romantic relationship with his patient. Albemarle Circuit Court appropriately focused on the particular act in question (versus the actor’s general position), citing primarily Messina and James.
“The decision whether or not to enter into a personal relationship with the Plaintiff was one which required no discretion or judgment – it was simply forbidden,” declared Judge Peatross in Fender. See, Letter Op. at 4 (emphasis added). Accordingly, he denied the plea. Id.
Finally, in Deeds in 1991, a fellow burned a patient in routinely applying splints contrary warning. 30 Va. Cir at 532. Albemarle Circuit Court again accurately focused on the particular act in question (not the actor’s general position), citing Messina, James and Wynn, and overruled the plea on conduct that was “solely ministerial in nature”. Id. at 533, 537.
“It seems unlikely that Dr. DiMercurio’s routine application of a commercially-available splint required the level of judgment and discretion which the Supreme Court envisioned in James,” observed Judge Peatross in Deeds. Id. at 535 (emphasis added). “[W]hile the skin-grafting procedured performed on the plaintiff by Drs. Morgan and Dimercario may well have been sophisticated and complex, the application of the splints following those procedures appears to have required almost no independent discretion at all.” Id. at 535 (emphasis added).
