Cleaves-Mcclellan v. Shah
| Decision Date | 30 June 2016 |
| Docket Number | Civil Docket No.: CL15-1918 |
| Court | Circuit Court of Virginia |
| Parties | Re: Traci Cleaves-McClellan v. Mukesh H. Shah, M.D., et al. |
DAVID W. LANNETTI JUDGE
Edward F. Halloran, Esq.
5233 Princess Anne Road
Virginia Beach, Virginia 23462
Edward J. McNelis, III, Esq.
Grace Morse Brumagin, Esq.
Rawls, McNelis & Mitchell, P.C.
211 Rocketts Way, Suite 100
Richmond, Virginia 23231
Everett L. Bensten, Esq.
Sr. Assistant City Attorney
City of Hampton
22 Lincoln Street, 8th Floor
Hampton, Virginia 23669
Darlene P. Bradberry, Esq.
Deputy City Attorney
City of Newport News
Office of the City Attorney
2400 Washington Ave., 9th Floor
Newport News, Virginia 23607
Mark R. Herring, Esq.
Attorney General of Virginia
Behavioral Health & Developmental Services
900 East Main Street
Richmond, Virginia 23219
Dear Counsel:
Today the Court rules on separate Pleas in Bar based on Sovereign Immunity filed by Defendants the City of Hampton ("Hampton"), the City of Newport News ("Newport News"), the Hampton-Newport News Community Services Board (the "CSB"), and Mukesh H. Shah, M.D. ("Shah"), as well as Demurrers filed by the CSB and Shah. The issue regarding the Pleas in Bar is whether the defendants are entitled to sovereign immunity from claims of negligence alleged by Plaintiff Traci Cleaves-McClellan ("Cleaves-McClellan"). The Court finds—based on the CSB serving a governmental function—that Hampton and Newport News are immune from liability for negligence and that the CSB and Shah are immune from liability for simple negligence. The issues regarding the Demurrers are: (1) whether the complaint filed by Cleaves-McClellan alleges facts sufficient to support claims of gross negligence against the CSB and Shah; (2) whether the complaint alleges facts sufficient to support claims for punitive damages against the CSB and Shah; and (3) whether the tort of negligent supervision is recognized in Virginia. The Court finds that: (1) the complaint sufficiently alleges facts that could support a finding of gross negligence; (2) the complaint does not sufficiently allege facts that could support an award of punitive damages; and (3) negligent supervision is not a recognized cause of action in Virginia.
In light of the circumstances present here, the Court SUSTAINS Hampton's and Newport News's pleas in bar, SUSTAINS the CSB's and Shah's plea of sovereign immunity, OVERRULES the CSB's and Shah's demurrers as to the gross negligence claims, SUSTAINS the CSB's and Shah's demurrers as to the punitive damages claim, and SUSTAINS the CSB's demurrer as to the negligent supervision claim.
Background
Shah is a Virginia-licensed medical doctor and health care provider employed by the CSB as a psychiatrist. (Compl. 2; Tr. 7.) Cleaves-McClellan claims that Shah cared for and treated her at the CSB located in Hampton, Virginia, for over one year—through July 2014—for "physical and mental illness, including bipolar disorder." (Compl. at 2-3.) She alleges that Shah mis-prescribed the drug Geodon (the "Drug") to her, failed to monitor her health, failed to discontinue the medication upon signs of complications from the Drug, failed to warn her of the danger of the Drug, and disregarded the warning signs of complications from the Drug. (Id. at 3.) Cleaves-McClellan also claims that Shah "failed to obtain [her] informed consent . . . for treatment and by virtue thereof committed battery upon [her] and further committed battery by having unprivileged physical contact with her and continuing to prescribe and require [her] to take the drug despite adverse symptoms" she reported. (Id.) She further alleges that Shah's co-defendants committed negligence in hiring, monitoring, and supervising Shah because Shah was unqualified to treat her mental illness and failed to adequately monitor administration of the Drug. (Id.) The negligent hiring claim is based on allegations that Shah is not a psychiatrist and that the "Dr. Mukesh H. Shah" who is employed by the CSB—and is the subject of these claims—is the same "Dr. Mukesh H. Shah" who is a California-licensed podiatrist who was subject to disciplinary action in California. (Compl. 3; Br. in Opp'n to Dem., Special Plea in Bar, and Plea of Sovereign Immunity ("Br. in Opp'n") 2; Tr. 49-55.)
Cleaves-McClellan filed a complaint (the "Complaint") alleging negligence, gross negligence, and negligent hiring, monitoring, and supervision against the CSB, Hampton, Newport News, and the Commonwealth of Virginia. (Id. at 3-4.) The Complaint also includes a cause of action for medical malpractice, battery, and gross negligence against Shah. (Id. at 2-3.) Cleaves-McClellan further seeks punitive damages based on Shah's alleged "reckless and wanton conduct" and the other defendants' failure to screen and determine that Shah is not a psychiatrist. (Id. at 4.)
A hearing on the Pleas in Bar and the Demurrers was held on May 2, 2016, during which all parties with the exception of the Commonwealth of Virginia were represented.1
Position of the Parties
Hampton's, Newport News', and the CSB's Pleas in Bar
Hampton and Newport News argue they are immune from all causes of actions alleged by Cleaves-McClellan. (Hampton Plea in Bar ("Hampton Plea") 2; Newport News Plea of Sovereign Immunity ("Newport News Plea") 3.)2 The CSB and Shah argue they are immune from claims of simple negligence. (CSB & Shah Plea of Sovereign Immunity and Dem. ("CSB & Shah Plea") 2.) These defendants argue that sovereign immunity extends to municipalities—and their employees—exercising their governmental functions, and that a function is considered governmental if it is pursuant to political, discretionary, or legislative authority. (Hampton Plea 2; Newport News Plea 2; CSB & Shah Plea 2.) Hampton and Newport News claim that Section 37.2-500 of the Code of Virginia mandates that they establish a community services board, which they assert is an exercise of a legislative function related to public welfare. (Id.) Hampton and Newport News contend that they therefore are immune from liability for any negligence alleged by Cleaves-McClellan. (Hampton Plea 2, Newport News Plea 2.) The CSB and Shah similarly contend that they are immune from liability for simple negligence as alleged by Cleaves-McClellan. (CSB & Shah Plea 3.)
Hampton makes the additional argument that it has no operational control over the CSB or its employees, including Shah. (Hampton Plea 3.) It argues that under Section 37.2.500 et seq. of the Code of Virginia it has a limited role in funding the CSB and appointing CSB board members. (Id. at 3-4.) Hampton claims that Code Section 37.2-504(A) grants to the CSB—and not the locality—the responsibility to set policies and regulations for the delivery of services and the operation of facilities under its supervision, which includes the responsibility to make employee hiring and termination decisions. (Id. at 4.) Hampton argues that because CSB employees are solely employees of the CSB's board, Hampton cannot be vicariously liable for any of the CSB's acts. (Id. at 4.)
Hampton and Newport News also claim that they are immune from punitive damages. (Hampton Plea 3; Newport News Plea 3.)
Finally, Hampton claims that there is no cause of action in Virginia for negligent monitoring or supervision as alleged by Cleaves-McClellan in the Complaint. (Hampton Plea 4.)
Cleaves-McClellan's Response to the CSB's Plea in Bar3
Cleaves-McClellan responds by stating that the CSB cites no Virginia Supreme Court cases supporting the proposition that it was performing a governmental function. (Br. in Opp'n 3.) She also argues that even if the CSB were engaged in a governmental function, immunity islimited to simple negligence. (Id. at 3-4.) She claims that acts of gross negligence and intentional torts, such as those Cleaves-McClellan alleges against the CSB, are not immunized. (Id.)
Shah's Plea of Sovereign Immunity
Shah alleges that during all times relevant to this litigation he was an employee of the Commonwealth working within the course and scope of his employment at the CSB. (CSB & Shah Plea 1.) He argues that claims of simple negligence against officers, agents, and employees of the Commonwealth are barred. (Id. at 2.) He asserts that Cleaves-McClellan's claims of simple negligence as to him therefore should be dismissed. (Id.)
Cleaves-McClellan's Response to Shah's Plea of Sovereign Immunity
Cleaves-McClellan responds by arguing that, even assuming Shah is an employee of the CSB, only immunity for simple negligence exists. (Br. in Opp'n 3.) Cleaves-McClellan further argues that whether Shah is an independent contractor needs to be explored, and if he is an independent contractor sovereign immunity does not apply. (Id.)
The CSB's Demurrer
The CSB argues that Cleaves-McClellan's gross negligence claim should be dismissed because it lacks a good-faith basis. (CSB & Shah's Plea 10.) It argues that Rule 1.3 of the Virginia State Bar Rules of Professional Conduct requires that a lawyer not bring a frivolous issue or claim. (Id. at 9.) The CSB states that Cleaves-McClellan has alleged that Shah is not a psychiatrist trained to treat her condition and that the CSB failed to investigate Shah's background. (Id.) The CSB contends that a simple search of the Virginia Board of Medicine's website reveals that Shah is a psychiatrist and that Cleaves-McClellan's counsel has made an unsupported claim for gross negligence. (Id. at 9-10.) The CSB argues that no evidence has been presented indicating that it ever acted in a grossly negligent manner, as Cleaves-McClellan alleges. (Id. at 10.) It claims that Cleaves-McClellan's gross negligence claim therefore cannot go forward. (Id.)
The CSB also asserts that Cleaves-McClellan's punitive damages claim against it should be dismissed. (Id.) It argues that no misconduct, malice, or recklessness can be alleged because Cleaves-McClellan makes her claim based on what is clearly a case of mistaken identity. (Id.) Alternatively, it argues that...
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