Virginia Supreme Court Upholds Derivative Sovereign Immunity for Jail Physician
by Matt Clarke
In an important decision for prisoners and jail detainees in Virginia, the state Supreme Court held on July 7, 2022, that a jail physician was entitled to a derivation of the state’s sovereign immunity. As a result, the Court affirmed dismissal of a lawsuit brought against the doctor by the estate of a deceased prisoner whose worsening cardiac condition was mistreated.
That prisoner, Langston Patterson, was incarcerated at a city jail in Danville on November 4, 2016. His jail intake form listed a history of diabetes, hypertension, depression and schizophrenia. A week later, he began showing symptoms of confusion. Jail physician Dr. Laurence Shu-Chung Wang ordered blood and metabolic tests.
The next day, he had Patterson transported to a hospital, where he was treated for metabolic toxic encephalopathy, dehydration, low blood sodium, low blood potassium, acute kidney injury, ketosis and diabetes. An intravenous saline drip resolved the low blood sodium, and he was returned to the jail the next day with prescriptions for his other ailments.
The following week, Wang examined Patterson and noted gastric reflux syndrome, blurred vision and shoulder pain. He prescribed atenolol, Zantac, and ibuprofen for those symptoms.
Two weeks after that, Patterson began exhibiting an altered mental state. Wang prescribed him Haldol, an anti-psychotic. About three weeks later, Patterson complained that his feet were swelling. Believing this to be a side effect of the Haldol, Wang prescribed Cogentin.
Two months later, Patterson was still anxious and appeared mentally disturbed. Wang diagnosed depression and prescribed the anti-depressant nortriptyline. Five days later, Patterson suffered cardiac arrest in his cell. He was resuscitated and hospitalized, but he remained in a coma and died in the hospital five months later.
His estate filed suit in state court accusing Wang of negligence and gross negligence. Following an evidentiary hearing, that court determined that Wang was entitled to derivative sovereign immunity. The estate appealed to the Virginia Supreme Court.
There it was noted that whether derivative sovereign immunity applies to an employee of an immune governmental entity is determined by the function he performs, how much interest and involvement the employer has in that performance, the degree of control and direction exercised by employer, and whether the act complained of involved the use of judgment and discretion.
In this case, Wang provided a governmental function — prisoner health care — under standards promulgated by the state Board of Corrections. He could not withhold care or choose which patients to treat. He did not bill patients, and all of the supplies he used were owned by the jail. He also had discretion in the type of treatment to provide. Thus the Court determined that he was an agent of the city entitled to derivative sovereign immunity.
The court noted that in similar cases it found physicians working for governmental entities providing government services were entitled to derivative sovereign immunity, including Pike v. Hagaman, 292 Va. 209 (2016), where a university physician provided indigent medical care; Lohr v. Larsen, 246 Va. 81 (1993), where defendant was a physician at a public health clinic; and Gargiulo v. Ohar , 239 Va. 209 (1990), which involved a research physician at a medical college. Therefore, Wang was entitled to derivative sovereign immunity in this case, the Court reasoned.
Granted, gross negligence can defeat derivative sovereign immunity, the Court continued. But that just means “scant” care was provided, and the long list of Wang’s medical consults with Patterson successfully refuted that in this case. So the lower court’s judgment was affirmed. See: Patterson v. City of Danville, 2021 Va. LEXIS 122.
The Court expressed reticence to tinker with its jurisprudence, saying it wouldn’t intervene where the state legislature had not gone. That’s curious, since the concept of sovereign immunity itself was judicially constructed, not the result of any legislative activity. Patterson’s estate may not have won a case against a private doctor, but it wouldn’t have been tossed on immunity grounds. What the Court said in effect is that state lawmakers needed to step in if they didn’t like the Court’s quasi-legislative rulings.
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