Gargiulo v. Ohar

387 S.E.2d 787, 239 Va. 209, 6 Va. Law Rep. 1176, 1990 Va. LEXIS 17
CourtSupreme Court of Virginia
DecidedJanuary 12, 1990
DocketRecord 881291
StatusPublished
Cited by65 cases

This text of 387 S.E.2d 787 (Gargiulo v. Ohar) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gargiulo v. Ohar, 387 S.E.2d 787, 239 Va. 209, 6 Va. Law Rep. 1176, 1990 Va. LEXIS 17 (Va. 1990).

Opinions

SENIOR JUSTICE POFF

delivered the opinion of the Court.

We granted this appeal to consider whether, as the trial court ruled, a licensed, board-certified physician, a salaried employee of a state hospital engaged as a fellow in a medical research and training program conducted by the hospital, was entitled to sovereign immunity from liability for medical malpractice allegedly committed against a patient participating in the program.

The question arises out of a judgment sustaining a defense motion to dismiss a motion for judgment filed by Mrs. Patricia Gargiulo against Dr. Jill Ann Ohar and certain others who were later dismissed as parties. The judgment was entered following a hearing at which the trial court heard testimony, examined exhibits and affidavits introduced by the parties, and considered legal [211]*211memoranda and arguments of counsel. The facts, drawn from the record of that hearing, are not in dispute.

Mrs. Gargiulo, a registered nurse, suffers from progressive systemic sclerosis or scleroderma. Scleroderma is a chronic disease of the connective tissues. Victims of the disease often experience pulmonary hypertension and malfunction of the cardiovascular system.

Virginia Commonwealth University, formally “classified” as one of several “governmental instrumentalities” by Code § 23-14 and “established” as a state “corporation” by § 23-50.5, is “empowered” by § 23-50.7 “to maintain and conduct hospitals, infirmaries, dispensaries, laboratories, [and] research centers . . . .” One such facility is “designated The Medical College of Virginia, Health Sciences Division of Virginia Commonwealth University (MCV).” Id.

Dr. Alpha A. Fowler, a member of the faculty and attending physician at MCV, prepared a protocol for a research and training project to study scleroderma. The protocol specified uniform procedures for diagnosis and treatment of participating patients. By assessing the effects of two drugs, nitroglycerin and nifedipine, on respiratory and cardiovascular problems, the study, the first of its kind, was an effort to discover means of reducing the incidence and the severity of pulmonary hypertension and prolonging survival of its victims. The Committee on the Conduct of Human Research at MCV approved the protocol and funding of the project.

Dr. Jill Ann Ohar, a 1977 graduate of the Medical College of Pennsylvania, served until 1979 as an intern at that facility and, until 1981, as a resident at MCV. As a licensed physician, board-certified in internal medicine, she was awarded a six-year fellowship in the research project. In the second year of the fellowship, Mrs. Gargiulo, who had volunteered to participate as a patient in the project, was assigned to the care of Dr. Ohar.

Working under Dr. Fowler’s supervision, Dr. Ohar administered drugs to Mrs. Gargiulo and performed a variety of tests prescribed by the protocol. One such test required the insertion of a heart catheter. According to the motion for judgment, the catheter was negligently secured and became disconnected, “causing Mrs. Gargiulo to suffer ... an air embolism which rendered Mrs. Gargiulo comatose and caused her severe and permanent inju[212]*212ries”. Other facts bearing upon the sovereign-immunity issue will be detailed in the course of our opinion.

I.

Preliminarily, Mrs. Gargiulo “respectfully submits that the abolition of this ancient doctrine would avoid cumbersome and uncertain analysis that is used in determining the sovereign immunity issue and would result in more uniform decisions by the trial courts in this state.” Considering the “multitude of purposes” served by the doctrine as summarized in Messina v. Burden, 228 Va. 301, 308, 321 S.E.2d 657, 660 (1984), and absent any relevant legislative change, we reaffirm our conclusion that “the doctrine of sovereign immunity is ‘alive and well’ in Virginia.” Id. at 307, 321 S.E.2d at 660.

II.

As stated by Mrs. Gargiulo, “[t]he precise legal issue presented in this case is whether Defendant should be held liable for her negligent acts under James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980), or whether she should be entitled to sovereign immunity under Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973), overruled on other grounds, First Virginia Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8 (1983).”

In Lawhorne, we held that a surgical intern engaged in a postdoctoral course of training at a state hospital was immune from liability for simple negligence. In James, we held that attending physicians on the faculty of the University of Virginia Medical School were not immune. There, we fashioned a four-part test for determining whether a state employee charged with simple negligence is entitled to the immunity accorded the sovereign.

Under such circumstances we examine the function [the] employee was performing and the extent of the state’s interest and involvement in that function. Whether the act performed involves the use of judgment and discretion is a consideration, but it is not always determinative .... Of equal importance is the degree of control and direction exercised by the state over the employee whose negligence is involved.

221 Va. at 53, 282 S.E.2d at 869.

[213]*213In James, the facts failed to satisfy the test. Applying the test in three later cases, however, we held in each that the employee was immune. Bowers v. Commonwealth, 225 Va. 245, 302 S.E.2d 511 (1983) (resident engineer employed by Commonwealth); Messina v. Burden, supra (state college employee and county employee); Lentz v. Morris, 236 Va. 78, 372 S.E.2d 608 (1988) (public high school employee). We now apply the test in the case at bar.

III.

Addressing the first two parts of the test, we consider the nature of the function performed by the employee and the extent of the state’s interest and involvement in that function. Comparisons are instructive.

Dr. Ohar’s role was wholly unlike that performed by the defendants in James. There, the defendants were members of the faculty of a state medical school and doctors serving in the state hospital, but their relationship with the plaintiff was that of physician-patient. Indeed, as we noted in Bowers, 225 Va. at 252, 302 S.E.2d at 515, “they were essentially private practitioners”, or, as we characterized them in Messina, 228 Va. at 312, 321 S.E.2d at 663, “independent contractors”. As such, they were performing much the same function as attending physicians at private hospitals.

By comparison, Dr. Ohar’s function was to assist as an employee and student in the conduct of a basic medical research program. That program was devised, sponsored, directed, and funded by state entities pursuant to authority expressly conferred by the General Assembly. It is true, as Mrs. Gargiulo says, that Dr.

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Bluebook (online)
387 S.E.2d 787, 239 Va. 209, 6 Va. Law Rep. 1176, 1990 Va. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gargiulo-v-ohar-va-1990.