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

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his is the fourth 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 concludes the ministerial act exception to Virginia sovereign immunity.

There are four additional sovereign immunity cases evincing that an individual employee like Defendant, Travis Burns, still is liable for “simple negligence in the performance of a ministerial act”. See, Exhibit A, Jennings v. Hart, No. 3:08CV00028, Memorandum and Order (W.D. Va. Mar. 17, 2009)(Virginia law); Hughes v. Lake Taylor City Hosp., 54 Va. Cir. 239 (Norfolk Dec. 13, 2000); Exhibit B, Fender v. Cendana, No. 96-6844, Op. Letter and Order (Albemarle Jan. 28, 1998); Deeds v. DiMercurio, 30 Va. Cir. 532 (Albemarle Sep. 4, 1991). They are dispositive of Gagnon.

In Jennings this year, sheriff department employees denied medical care to an inmate who ultimately died. Memorandum Op. at 1-3. United States District Court properly focused on the particular act in question (rather than the actor’s general position), principally citing James, and denied the motion to dismiss.

“The doctrine of sovereign immunity applies to acts that are discretionary, but not ministerial, in nature. * * * * The fact that the provision of medical care to Jennings initially involved the exercise of some judgment and discretion, however, does not necessarily mean that the Defendants should be entitled to sovereign immunityEvery act involves the exercise of at least some amount of discretionSee, Memorandum Op. at 5 (underlining added)(italics in original). Judge Moon in Jennings delineated, “Whether a matter is truly committed to the discretion of a government employee is therefore a question of degree and requires a analysis of the circumstances of a particular situation. * * * [W]ell before Jennings was taken to the hospital, the circumstances were such that the Defendants lacked the discretion to keep her at the jail and deny her the opportunity to be seen by a neurologist or other medical professional. Id. at 6. (emphasis added).

In Hughes in 2000, nurses and a therapist misclassified a patient as “DNR” versus “full code” status and failed to arrange her emergency transport as ordered, causing death. 54 Va. Cir. at 239. Norfolk Circuit Court correctly focused on the particular act in question (instead of the actor’s general positions), citing principally James, and overruled their special plea. Id. at 242-244.