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McCloskey v. Kane11/5/2004
In this appeal, we decide whether the trial court erred in dismissing the plaintiff's negligence action based upon the doctrine of sovereign immunity.
I.
Carl F. McCloskey, Administrator of the Estate of John W. McCloskey (the Plaintiff), filed a wrongful death action against Timothy Kane, M.D. (the Defendant), alleging that John W. McCloskey (the Decedent) died "as a result of the negligence . . . of [the Defendant], who committed malpractice while treating [the Decedent]." The Defendant filed a plea of sovereign immunity. By order entered November 7, 2003, the trial court granted the Defendant's plea and dismissed the matter with prejudice. We awarded the Plaintiff this appeal.
II.
A.
We will summarize the Plaintiff's negligence claim primarily from a reading of his motion for judgment. On December 15, 1994, the Decedent, aged eighteen years, was involuntarily committed to Western State Hospital (Western State). He was suffering from clinically diagnosed bipolar disorder. At some time during his three days as a patient at Western State, the Decedent experienced a violent assault, likely through his rectum. On the morning of December 18, the Decedent was found lying on the floor, vomiting and complaining of severe abdominal pain and of constipation. The nurse on duty notified the Defendant, who was the physician on duty at the time of the Decedent's complaints.
The Defendant did not examine the Decedent at that time, but ordered a suppository. At noon that day, the Defendant was informed that the Decedent's complaints persisted and that he had vomited his own feces. The Defendant examined the Decedent and ordered an x-ray.
The Defendant did not have a radiologist read the x-ray. Instead, the Defendant read the x-ray and failed to note the presence of free air in the Decedent's abdominal cavity. The Defendant ordered a soapsuds enema, which worsened the Decedent's condition.
Later that day, the Defendant was informed that the Decedent's condition had not improved. Thereupon, the Defendant decided to transfer the Decedent to the University of Virginia Medical Center at Charlottesville (UVA Medical Center). The Decedent was transported, contrary to Western State's policy, in a security van rather than an ambulance.
The doctors at the UVA Medical Center promptly diagnosed the Decedent's condition, but, by that time, the Decedent's body was so infected and weak that he could not recover. The Decedent lapsed into a coma, struggled for 14 months, and finally died on February 24, 1996.
B.
Western State is a state mental hospital, operated under the authority of the Department of Mental Health, Mental Retardation and Substance Abuse Services (the Department) pursuant to Title 37.1 of the Code of Virginia. Western State is "operated by the Department . . . to provide mental health care to all eligible patients regardless of [their] ability to pay for such care."
The Defendant was a "physician extender," classified as a "P-14" doctor, meaning he worked part-time, was paid hourly, and received no state benefits. His job was "to help the psychiatrists with the medical problems." He was not a psychiatrist; rather, he was a resident in psychiatry at the University of Virginia.
The Defendant was on duty for weekend shifts to respond to emergent non-psychiatric medical situations. He requested the on-call weekend shifts that suited his schedule, and he could choose to work between one and four 12- or 24-hour shifts a month.
While on duty during weekend shifts, the Defendant was not consistently engaged in treating patients, and
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