Lohr v. Larsen

Decision Date11 June 1993
Docket NumberNo. 921180,921180
Citation246 Va. 81,431 S.E.2d 642
PartiesPaige LOHR v. Douglas LARSEN, M.D. Record
CourtVirginia Supreme Court

Thomas E. Albro (Christine Thomson, Tremblay & Smith, on briefs), for appellant.

Marshall H. Ross (Ronald D. Hodges, Charles F. Hilton, Wharton, Aldhizer & Weaver, on brief), for appellee.

Present: All the Justices.

WHITING, Justice.

In this medical malpractice case, we decide whether a state-employed public health physician is entitled to the protection of the doctrine of sovereign immunity from liability for his alleged acts of ordinary negligence. 1

Paige Lohr filed this action against Dr. George Douglas Larsen, a salaried state employee, alleging medical malpractice on his part in failing to order mammograms and needle biopsies after Dr. Larsen detected a lump in Lohr's right breast. After hearing evidence and argument of counsel, the trial court sustained Dr. Larsen's plea of sovereign immunity and dismissed the motion for judgment. Lohr appeals.

No transcript of the evidence or statement of facts has been filed. Therefore, we state the pertinent facts from the allegations of negligence in Lohr's motion for judgment (which the trial court accepted as true for the purposes of its ruling) and from the trial court's findings of fact as stated in its opinion letter.

In July 1988, Lohr went to the Waynesboro Public Health Clinic seeking birth control pills that are issued under its family planning program. This clinic, funded by the Commonwealth and by local governments to supply limited public health services to citizens who cannot afford to pay for private health services, is controlled and staffed by the State Department of Health.

After establishing her eligibility for the program, Lohr returned to the clinic on July 14, 1988. There, in conformity with state regulations, a public health nurse updated Lohr's medical history, provided Lohr with patient education, and took a blood sample. Dr. Larsen then examined Lohr.

The Commonwealth required that Lohr have a physical examination before Dr. Larsen could prescribe birth control pills. Included within the state-defined scope of the examination was a breast examination. However, because the Commonwealth does not provide the funds, equipment, or authority for further examination or treatment, should the need for further medical services become apparent in such an examination, the person examined is referred to other health care providers for treatment.

Dr. Larsen, a board-certified obstetrician and gynecologist, was assigned by the Commonwealth to provide certain medical services to the clinic. The trial court described the Commonwealth's control of Dr. Larsen's function at the clinic in the following language:

[T]he State ... controls, absolutely, when and where Dr. Larsen works, the number and identity of the patients he sees, the equipment he uses, the procedures he can perform and those which he must refer and even the brand name of the medication he can prescribe. He cannot refuse to see any patient, his compensation is not related in any way to the number of the patients he sees or the services he performs for them and he has no input at all into what fee, if any, the patient will be charged.

Following the July 14 examination of Lohr, Dr. Larsen prescribed birth control pills for her. On August 18, Dr. Larsen examined Lohr a second time after she called the clinic to report that she had discovered a lump in her right breast. Dr. Larsen recommended that Lohr discontinue drinking fluids containing caffeine, and that she "do self examinations for one to two months to see if the lump changed." However, he did not order or recommend a mammogram or a needle biopsy of the lump, either then or two months later, when Lohr reported to him on October 27 that she still had the lump in her breast.

On December 7, after Lohr reported that the lump had grown in size and hardened, Dr. Larsen again examined her and noted that the lump was "definitely suspicious." His notes also stated, "refer to a general surgeon ASAP." Lohr alleges that Dr. Larsen did not advise her that the matter was urgent.

When a general surgeon examined Lohr on January 5, 1989, he noted a much larger lump than was recorded in Dr. Larsen's notes of his December 7 examination. Two mastectomies were later performed on Lohr, one on February 20 and a second on March 27. The first operation confirmed that Lohr "had a stage II infiltrating ductal adenocarcinoma with intralymphatic tumor and vascular invasion." Since that time, Lohr has undergone chemotherapy and "remains at high risk for recurrence of her carcinoma."

Lohr claims that Dr. Larsen's plea of sovereign immunity should be denied because his function was similar to that of medical school faculty member-physicians who were denied sovereign immunity from claims of ordinary negligence asserted by their private patients in James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980). James established the test we use in determining government employees' claims of immunity in the following language:

[W]e examine the function [the] employee was performing and the extent of the state's interest and involvement in that function. Whether the act performed involves the use of judgment and discretion is a consideration, but it is not always determinative.... Of equal importance is the degree of control and direction exercised by the state over the employee whose negligence is involved.

We will apply the James test in this case.

Employee's Function--Commonwealth's Interest and Involvement Therein

In James, we indicated that if the function that a government employee was negligently performing was essential to a governmental objective and the government had a great interest and involvement in that function, those factors would weigh in favor of the employee's claim of sovereign immunity. Id. at 53-54, 282 S.E.2d at 869. On the other hand, if that function has only a marginal influence upon a governmental objective, and the government's interest and involvement in that function are "slight," these factors weigh against granting governmental immunity to a government employee. Id. at 54, 282 S.E.2d at 870.

The James defendants had private and staff patients and were "under no obligation to accept any individual" as a patient. 221 Va. at 47, 282 S.E.2d at 866. Although these physicians received no direct benefit from the fees that their private patients paid for their services, they indirectly benefitted from those fees because the fees were used in operating the medical school, which paid the physicians' salaries, and in funding a portion of their retirement benefits. Id. at 48, 282 S.E.2d at 866. The physicians in James were also authorized to compromise or forgive their charges to patients. Id. at 49, 282 S.E.2d at 866.

In James, "the paramount interest of the Commonwealth of Virginia [was] that the University of Virginia operate a good medical school and that it be staffed with efficient and competent administrators and professors." Id. at 54, 282 S.E.2d at 870. But the allegedly negligent acts of the James physicians were not undertaken in furtherance of the Commonwealth's interest in providing medical education. And we indicated that although the Commonwealth had the same interest and concern in treatment of the private patients in James which it had in the treatment of every patient treated in the Commonwealth, the Commonwealth's interest and control over the James physicians was "slight." Id. In later cases, we characterized the function of those physicians as that of "independent contractors," Messina v. Burden, 228 Va. 301, 313, 321 S.E.2d 657, 663 (1984), and "essentially private practitioners," Bowers v. Commonwealth, 225 Va. 245, 252, 302 S.E.2d 511, 515 (1983).

In contrast to James, the trial court found that Dr. Larsen could neither choose his patients nor forgive any part of the fees fixed by the clinic for his services. And the other evidence indicated that Dr. Larsen's salary and retirement benefits had no relation to fees paid by persons who received clinic services. The Commonwealth's much greater interest and involvement in Dr. Larsen's function is evident from the court's finding from the evidence that "the Commonwealth is attempting to provide quality medical care in certain specified areas for citizens of this State who are economically unable to acquire those services in the private sector."

And the trial court quoted the General Assembly's description of the purposes of its overall health program, of which the clinic's family planning program was a part, in the following pertinent language, "the protection, improvement and preservation of the public health and of the environment are essential to the general welfare of the citizens of the Commonwealth." Code § 32.1-2 (emphasis added in the trial court's quotation). Furthermore, the trial court concluded that these health care services could not be delivered without using skilled physicians.

We conclude the trial court correctly held that at the time he was treating Lohr, Dr. Larsen was performing a function which was an essential part of the clinic's delivery of its health care services. The clinic's program in turn plays an integral role in the Commonwealth's objective of "the protection, improvement and preservation of the public health [which is] essential to the general welfare of the citizens of the Commonwealth."

Dr. Larsen's Use of Judgment and Discretion

To facilitate the efficient and effective operation of government, the exercise of the discretion vested in government employees should not be affected by threats of personal liability arising from the use of such discretion. Messina, 228 Va. at 308, 321 S.E.2d at 661. And because a government employee is liable for negligence in performing a ministerial act, see First Virginia Bank-Colonial v. Baker, 225 Va. 72, 78, 301 S.E.2d 8, 11 (1983), a government employee's use of...

To continue reading

Request your trial
33 cases
  • Patterson v. City of Danville
    • United States
    • Virginia Supreme Court
    • July 7, 2022
    ...the unique circumstances of that case.One of the cases that McCloskey distinguished in a footnote, see id. at 690 n.1 604 S.E.2d 59, was Lohr v. Larsen , which held that a physician employed by a public healthcare clinic (an immune government entity) was protected by derivative sovereign im......
  • Harbeck v. Smith
    • United States
    • U.S. District Court — Eastern District of Virginia
    • August 30, 2011
    ...Indeed, this is the same kind of distinction noted by the Adkins Court when it observed as follows: “In contrast to Lohr [ v. Larsen, 246 Va. 81, 431 S.E.2d 642 (1993) ] in which the Commonwealth controlled the medical procedures the state-employed doctor could perform, id., the Commonwealt......
  • Brown v. Mitchell
    • United States
    • U.S. District Court — Eastern District of Virginia
    • July 28, 2004
    ...495 (1996). In addition, he treats these patients in facilities owned by the City and with equipment owned by the City. Lohr v. Larsen, 246 Va. 81, 431 S.E.2d 642 (1993). Further, the contract controls Dr. Freund's obligations and duties towards Jail staff: Dr. Freund is required to consult......
  • Cleaves-Mcclellan v. Shah
    • United States
    • Circuit Court of Virginia
    • June 30, 2016
    ...involvement in that function, those factors would weigh in favor of the employee's claim of sovereign immunity." Lohr v. Larsen, 246 Va. 81, 85, 431 S.E.2d 642, 644 (1993). Here, the Court finds that Shah's service as a CSB employee was essential to a governmental objective and that the gov......
  • Request a trial to view additional results
2 books & journal articles
  • 19.4 Tort Liability and Related Issues
    • United States
    • Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) Chapter 19 Torts in Virginia
    • Invalid date
    ...1991), aff'd, 8 F.3d 819 (4th Cir. 1993).[154] Id. at 288.[155] Gargiulo v. Ohar, 239 Va. 209, 387 S.E.2d 787 (1990).[156] Lohr v. Larsen, 246 Va. 81, 431 S.E.2d 642 (1993).[157] Id.[158] 292 Va. 209, 787 S.E.2d 89 (2016).[159] 221 Va. 43, 282 S.E.2d 864 (1980).[160] 268 Va. 685, 604 S.E.2d......
  • 2.5 Immunity for Health Care Providers
    • United States
    • Medical Malpractice Law in Virginia (Virginia CLE) Chapter 2 Theories of Recovery and Defenses
    • Invalid date
    ...285 (W.D. Va. 1991), aff'd, 8 F.3d 819 (4th Cir. 1993).[83] Id. at 288.[84] Gargiulo v. Ohar, 239 Va. 209, 387 S.E.2d 787 (1990).[85] 246 Va. 81, 431 S.E.2d 642 (1993).[86] Id.[87] 221 Va. 43, 282 S.E.2d 864 (1980).[88] 268 Va. 685, 604 S.E.2d 59 (2004).[89] Id. at 690, 604 S.E.2d at 62.[90......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT