Sovereign Immunity Protects State-Owned Hospitals and Medical Personnel Against Malpractice Suits

By Alex Stein

Pike v. Hagaman, — S.E.2d —- 2016 WL 3097727 (Va. 2016), is a must-read for anyone interested in medical malpractice and health law. This new decision of the Virginia Supreme Court grants state-owned hospitals and their personnel categorical sovereign-immunity protection against medical malpractice suits.

After an unsuccessful surgery at a state-owned hospital, the patient filed a suit against one of the hospital’s nurses accusing her of malpractice. The nurse invoked the sovereign immunity. The trial court agreed with the nurse and decided that the sovereign immunity bars the suit.

On appeal, the Virginia Supreme Court affirmed that decision after finding that:

(1) the nurse’s conduct was essential to carrying out the state’s interest in the provision of high quality medical care.

(2) the nurse’s conduct involved use of judgment and discretion; and, finally, that

(3) the state had high level of control and direction over nurse.

The Court’s determination that individual patient care at a state-owned hospital satisfies this three-prong test for sovereign immunity is at odds with the prior precedent, James v. Jane, 282 S.E.2d 864 (Va. 1980).

In James v. Jane, the Court ruled that “The state’s interest and the state’s involvement, in its sovereign capacity, in the treatment of a specific patient by an attending physician in the University Hospital are slight; equally slight is the control exercised by the state over the physician in the treatment accorded that patient. This interest and involvement is not of such moment and value to the Commonwealth as to entitle [the defendants] to the immunity enjoyed by the state. … While there may have been a time when a physician was attracted to teach in a state medical school, and to serve as an attending physician on the staff of its hospital, because of the cloak of immunity afforded him as an employee of the sovereign state, we think that time is past. We cannot conceive of any physician, regardless of his status, practicing medicine in this era without the protection of liability insurance, which he purchases for himself or which is provided for him by his employer. Realistically, the only interest the state has in affording immunity to the physicians practicing in state hospitals is the probability of an increase in the cost of medical malpractice insurance if such immunity is denied. We do not find this to be such a compelling state interest as to justify the denial of a patient the right to assert a claim against a physician for negligent treatment.” Id. at 870.

The new interpretation of Virginia’s sovereign immunity fends off essentially every medical malpractice suit against state-owned hospitals and their personnel. Whether this massive and unprecedented expansion of the immunity was intended and will become entrenched in Virginia’s law remains to be seen.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice,, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.

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