Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (II)

Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (II)

his is the third in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It continues the ministerial act exception to Virginia sovereign immunity.

Heider and Friday-Spivey have articulated and promoted the ministerial act exception to sovereign immunity, such that it increasingly has gained traction in the circuit courts throughout the Commonwealth. Not surprisingly, much of their progeny are cases about the ministerial act of driving. E.g., Lake, supra (law enforcement officer driving to suspected homicide scene in Prince George); Baker, supra (game warden driving on patrol for potential law breakers in Fauquier); Ferro, supra (social worker driving transport of an upset teenager in Prince William); Howard, supra (dump truck operator driving route in Richmond); Daddio, supra (fire fighter driving to station for fire call in Loudoun); and Diaz, supra (unspecified employee driving in Norfolk). However, various other cases exemplify the breadth of the ministerial act doctrine, including notably in circumstances apparently presenting more arguable judgment and discretion than the matter sub judiceE.g., Ford, supra (Commonwealth doctor leaving gauze in wound); Gray, supra(Commonwealth nurse placing line in wrong blood vessel); Habib, supra (Commonwealth transportation inspectors failing to correct defective roadway); MFC, supra (Commonwealth special agent destroying explosives); and Yassa, supra (City zoning administrator approving plot plan). In Gagnon, the brain injury victim asserts that Defendant Assistant Principal Burns failing to call the security officers as he needed and assured patently is a ministerial act.

In Ford, a 2002 malpractice case, the patient alleged that the defendant Commonwealth doctor negligently left infectious gauze in his hip would by “failing to fully explore the wound to remove foreign objects during dressing changes; by failing to suspect and search for a foreign body when the plaintiff showed signs of infection; and by failing to identify the hip wound as the site of infection”. 58 Va. Cir. at 429. Rappahannock County Circuit Court properly focused on the particular act in question (rather than the actor’s general position), citing JamesMessina, and Heider; and overruled the plea in bar.

“While it may be said that providing health care services necessarily involves the exercise of some discretion, such discretion may be so inconsequential as to be of little significance when considering a grant of immunity to the health care provider.” Judge Horne continued in Ford, “the procedure that gave rise to the instant action involves a routine medical procedure. For purposes of the analysis, the Court determines based on the experience of Dr. Danisa, that this was a ministerial act not requiring the exercise of judgment and discretion.” Id. at 331-432.

In Gray, a 1996 malpractice case, Commonwealth nurses allegedly inserted a medication line into the wrongful blood vessel. Richmond Circuit Court properly focused on the particular act in question (instead of the actors’ general positions), considering James and citing Heider.