Pike v. Hagaman

• Citation: 292 Va. 209,787 S.E.2d 89
• Decision Date: 02 June 2016
• Docket Number: Record No. 151193
• Parties: Douglas E. Pike v. Kathryn S. Hagaman
• Court: Virginia Supreme Court

292 Va. 209

787 S.E.2d 89

Douglas E. Pike

v.Kathryn S. Hagaman

Record No. 151193

Supreme Court of Virginia.

June 2, 2016

Colleen M. Quinn (Richard L. Locke ; Shannon S. Otto ; Locke & Quinn, on briefs), Richmond, for appellant.

William H. Shewmake (Tracy Taylor Hague ; Linda B. Georgiadis ; LeClairRyan, on brief), Richmond, for appellee.

Amicus Curiae: Virginia Association of Defense Attorneys (George A. Somerville ; Harman Claytor Corrigan & Wellman, on brief), in support of appellee.

PRESENT: All the Justices

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

Douglas E. Pike, the plaintiff in a medical malpractice action, challenges the trial court's dismissal of his complaint on the basis of sovereign immunity. Pike argues that the defendant Kathryn S. Hagaman, a registered nurse in the Surgical Trauma Intensive Care Unit at Virginia Commonwealth University, or VCU, Medical Center is not entitled to sovereign immunity. Applying the four factor test from James v. Jane , 221 Va. 43, 282 S.E.2d 864 (1980), we disagree and affirm.

I. BACKGROUND

Pike was a surgical patient at VCU Medical Center, a hospital that is part of the VCU Health System. He underwent a complex and lengthy surgery lasting over 12 hours to reconstruct his hard and soft rear palates, i.e., the back of his mouth. Very few hospitals in Virginia can perform such a surgery, with VCU Medical Center being the only one in central Virginia that can perform it.

Following the surgery, Pike was taken to the Surgical Trauma Intensive Care Unit for recovery. This intensive care unit is a specialized unit, which “has the infrastructure and the expertise to manage the most complex surgical patients in the hospital.” Post-operative care in this unit requires “a minute-to-minute obligation to manage the post-operative care such that the patient continues to improve.” The patients are often in very critical condition and, therefore, require “complex nursing care.” Each nurse in this unit is responsible for two patients at most. Nurses must observe and assess patients, closely monitor vital signs, monitor the drugs that might be required for blood pressure support, care for patients on ventilators, and carry out “the complex orders that might be written by the surgery team.” To provide this care, the nurses in the unit are highly trained, including in “postanesthetic care, postoperative care, wound care, and the management of unstable patients.”

The environment is a collaborative one in which residents frequently consult and work closely together with the nurses in caring for the patients. The residents' interaction with the nurses is integral to the training curriculum. Nurses participate in the orientation of the residents to the unit and support the residents by providing information.

Pike's surgery included making an incision in his neck to permit the insertion of a ventilator tube. Following a surgery such as the one Pike underwent, it is important to keep the patient's head stable to enable blood to flow. Dr. Marc Sarcia placed an order in the “order section” of Pike's chart which stated, among other things: “Please do not apply any pressure to the right neck area in the vicinity of the incision.” The doctors overseeing Pike's care did not write any orders specifically governing the position of his head or neck; i.e., they did not order the nurses to maintain Pike's head in a neutral or midline position. According to testimony from multiple witnesses, nurses were required to exercise judgment and discretion in determining how to position the patient's head and how to avoid pressure in the vicinity of the neck incision. A surgeon at the hospital testified that he would rely on the skill and expertise of the nurse to position the patient's head appropriately following surgery.

Progress notes for the day after Pike's surgery stated, “Keep head in neutral position,” and “[n]o pressure to right side of face/neck.”¹ Dr. Andrea Pozez testified that nurses are not required to read progress notes, and Hagaman testified that progress notes are not the same as orders.

During the morning five days after the surgery, Pike was found with his neck tilted to the right, a position that would cause “venous compromise.” The staff on the floor was instructed to avoid this practice. That afternoon, Dr. Christopher Campbell, Pike's attending physician, found Pike again in that position. Pike's face and neck were massively swollen. As a consequence, Pike had to undergo further surgery in an effort to salvage the palate reconstruction surgery. Those efforts were not successful and reconstruction surgery was for naught.

VCU Health System Authority paid nurse Hagaman's wages and her pay did not vary based on the number of patients that she saw. She did not bill patients for the care she provided. A scheduling committee made up of other staff nurses set her work hours and approved her leave from work. She had no discretion to refuse to see a patient.

Pike filed a medical malpractice action, alleging that Hagaman was negligent. In response, Hagaman filed a plea of sovereign immunity. Following the presentation of evidence, the trial court granted Hagaman's plea. In a memorandum opinion, the court outlined the evidence and concluded that sovereign immunity barred the action. This appeal followed.

II. ANALYSIS

We review de novo a trial court's ruling on a plea of sovereign immunity. City of Chesapeake v. Cunningham , 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004). Furthermore,

[w]hen evidence is presented “on [a] plea ore tenus, the circuit court's factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.”

McBride v. Bennett , 288 Va. 450, 454, 764 S.E.2d 44, 46 (2014) (quoting Hawthorne v. VanMarter , 279 Va. 566, 577, 692 S.E.2d 226, 233 (2010) ).

The doctrine of sovereign immunity remains “alive and well in Virginia.” Commonwealth ex rel. Fair Hous. Bd. v. Windsor Plaza Condo. Ass'n , 289 Va. 34, 56, 768 S.E.2d 79, 89 (2014) (quoting Jean Moreau & Assocs. v. Health Ctr. Comm'n , 283 Va. 128, 137, 720 S.E.2d 105, 110 (2012) ). The doctrine “is ‘a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities.’ ” City of Virginia Beach v. Carmichael Dev. Co. , 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000) (quoting Hinchey v. Ogden , 226 Va. 234, 240, 307 S.E.2d 891, 894 (1983) ). Because “government can function only through its servants ... certain of those servants must enjoy the same immunity in the performance of their discretionary duties as the government enjoys.” First Va. Bank–Colonial v. Baker , 225 Va. 72, 79, 301 S.E.2d 8, 12 (1983).

“A plea of sovereign immunity is a defensive plea presenting distinct issues of fact which, if proved, create a bar to the plaintiff's right of recovery. As the moving party, the [state employee] bear[s] the burden of proving those issues of fact.” Whitley v. Commonwealth , 260 Va. 482, 493, 538 S.E.2d 296, 302 (2000) (citation omitted).

In James , we declined to impose a bright line rule to determine whether an allegedly negligent state employee is protected by the shield of sovereign immunity. 221 Va. at 53, 282 S.E.2d at 869. We developed a list of four non-exclusive factors to assess whether a plea of sovereign immunity should be sustained. These four factors are:

1. The function the employee was performing;

2. The state's interest and involvement in that function;

3. Whether the act performed by the employee involved the use of judgment and discretion; and

4. The degree of control and direction exercised by the state over the employee.² Id.

A. The function Hagaman was performing and the state's interest in that function.

With respect to the first two factors, “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.” Lohr v. Larsen , 246 Va. 81, 85, 431 S.E.2d 642, 644 (1993). Conversely, “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. (internal quotation marks omitted).

Pike contends that Hagaman was engaged in routine patient care, and that her care “had only a marginal influence on furthering any governmental interest or objective.” It is true that in James we stated that “[t]he 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.” 221 Va. at 54, 282 S.E.2d at 870. That statement, however, was made against the backdrop of our assessment of the governmental interest served by the University of Virginia Hospital. As for that hospital, we concluded, at the time, that “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 . In Lohr , in contrast, we sustained the plea of sovereign immunity, in part, because the general care provided by the physician defendant was integral to the governmental objective of “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.” 246 Va. at 86, 431 S.E.2d at 644–45.

The governmental objectives articulated by the General Assembly in the Code of Virginia certainly constitute compelling evidence of the Commonwealth's interest in a particular function. We have previously consulted legislative enactments in assessing...