Keenan v. Plouffe

482 S.E.2d 253, 267 Ga. 791, 97 Fulton County D. Rep. 694, 1997 Ga. LEXIS 75

• Court: Supreme Court of Georgia
• Decided: March 3, 1997
• Docket: S96A1349
• Status: Published

Opinions

Sears, Justice.

One of the many issues raised by this appeal is whether a state-employed physician who is alleged to have negligently performed surgery on a private-pay patient is immune from suit under the State Tort Claims Act. The trial court granted summary judgment to the appellee-physician, Dr. Leo Plouffe, based upon official immunity. We conclude that Dr. Plouffe is not immune from suit because he is sought to be held liable only for the exercise of his medical (as opposed to governmental) discretion in treating his patient, and because the purposes of official immunity, as set forth in OCGA § 50-21-21 (b), would not be furthered by extending immunity to this situation. We therefore reverse the trial court’s grant of summary judgment. Because of this holding, we need not address the constitutional issues raised by the appellant, which issues placed jurisdiction of the appeal in this Court.

The appellant, Randy Keenan, is the husband of Mrs. Onei Gue’ Keenan. She was a private-pay patient of Dr. Plouffe on February 23, 1994. That day, Dr. Plouffe performed a laser laparoscopy/hysteroscopy on Mrs. Keenan at the Medical College of Georgia Hospital. At the time of the surgery, Dr. Plouffe was a member of the faculty of the Medical College of Georgia (MCG), Department of Obstetrics and Gynecology. During the surgery, Dr. Plouffe used a laser device known as an Argon Beam Coagulator. The surgery resulted in significant and permanent brain damage to Ms. Keenan. Randy Keenan subsequently brought suit against Dr. Plouffe, as well as the manufacturer and distributor of the Argon Beam Coagulator. Keenan’s complaint, as well as the expert affidavit attached to it, alleged, among other things, that Dr. Plouffe was not certified to use this particular type of laser, and that he had used it in a negligent manner during the surgery, thereby causing Ms. Keenan’s injuries.

In a deposition, Dr. Plouffe testified that the diagnosis and treatment of Ms. Keenan, including the use of the Argon Beam Coagulator during the surgery, was left to his sole discretion and was not controlled by policies of the Board of Regents. Moreover, Dr. Plouffe was a member of the Medical College of Georgia Physicians Practice Group, d/b/a Physicians Practice Group (PPG). The PPG is organized as a non-profit association under the laws of Georgia and exists as a cooperative organization under the policies of the Board of Regents. The bylaws of the PPG provide that its members will be faculty members of MCG who are licensed to practice medicine in Georgia, and that the PPG’s purpose is to collect fees for professional services rendered by its member physicians. The PPG billed for Dr. Plouffe’s services to Ms. Keenan, while MCG sent a separate bill directly to the patient for non-physician related expenses. The PPG also provides fringe benefits to, and purchases professional liability insurance for, its member physicians.

Dr. Plouffe moved for summary judgment, asserting that he was acting as a state employee at the time of the surgery, and that he thus was immune from suit under OCGA § 50-21-25.- Keenan responded that the official immunity set forth in the Tort Claims Act should not apply to state-employed physicians and that to apply it to Dr. Plouffe violated Keenan’s constitutional rights in various respects. In this regard, Keenan contended that Dr. Plouffe was acting in his role as a private physician when he injured Mrs. Keenan. The trial court agreed with Dr. Plouffe, finding that he was teaching a resident doctor at the time of Ms. Keenan’s surgery, and ruling as a matter of law that he was entitled to immunity. The court also ruled against Keenan on all his constitutional claims. Keenan has filed this appeal.

1. Keenan first contends that the trial court erred in ruling that Dr. Plouffe was protected by the doctrine of official immunity under the Tort Claims Act. We agree.

Subsection (d) of Art. I, Sec. II, Par. IX of the Georgia Constitution provides as follows:

(d) Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.

In accord with the emphasized language of subsection (d), the General Assembly enacted OCGA § 50-21-25 as part of the State Tort Claims Act. That Code section provides that a state employee is immune from suit for torts committed “while acting within the scope of his or her official duties or employment.”

Thus, the decisive question in this case is whether Dr. Plouffe was acting within the scope of his official state duties while treating Ms. Keenan. If he was, then he is protected from suit by OCGA § 50-21-25. For the reasons explained below, we conclude that he was not acting in the course of his official duties as a state employee in his treatment of Ms. Keenan.¹

2. First, although it could be argued that Dr. Plouffe was in the broadest sense acting within the scope of his employment because he had an obligation as a professor at the medical college to treat patients, he had distinct obligations to Ms. Keenan that were independent of his official state duties, and the duties he is alleged to have violated in this case relate solely to those independent obligations. Here, Ms. Keenan was a private-pay patient who employed Dr. Plouffe as her medical doctor. She was billed directly for his services by the PPG, and Dr. Plouffe stated that the diagnosis and treatment of Ms. Keenan, including the use of the Argon Beam Coagulator during the surgery, were left to his sole medical discretion, and were not controlled by the government. Therefore, significantly, the duties alleged to have been violated in this case relate strictly to the medical care provided to Ms. Keenan and do not call into play what might be termed “governmental considerations,” such as the allocation of state resources for various types of medical care. Furthermore,. Dr. Plouffe’s primary duties in providing care to Ms. Keenan were to her and not to the State of Georgia.

The Court of Appeals has considered a similar situation in Jackson v. Miller,² There, the plaintiff sued a doctor employed by the Columbus Medical Center for the wrongful death of her two-year-old son. The doctor defended on the ground of official immunity,³ relying on this Court’s decision in Hennessy v. Webb.4 The Court of Appeals held that the doctor was not entitled to that defense since “his alleged negligence was simply that of a medical doctor in providing treatment to a patient. His primary duty in this instance being to his patients rather than to the state or the city.”⁵

Moreover, in considering a case identical to this one in all material respects, the Supreme Court of Virginia said the following regarding the relationship between a doctor who was a faculty member at the Medical School of the University of Virginia and a private-pay patient that he treated at the University of Virginia Hospital:

At the point when the physician agrees to treat or operate on a certain patient, although his employment by the University makes possible the arrangement, the relationship becomes the personal and confidential one of doctor and patient, not the Commonwealth of Virginia and patient. The physician owes his best professional efforts on behalf of the patient, and the patient expects, and has a right to expect, the same care and attention from the physician that he would receive if he were in a private hospital and the physician in private practice. The exercise by the attending physician of his professional skill and judgment in treating his patient, and the means and methods used, from the very nature of things, are not subject to the control and direction of others. The fact that the physician may follow certain prescribed guidelines and consult with colleagues, or that a review may be conducted when a patient is injured, or when a patient dies, does not alter the professional status of the attending physician or his relationship with and obligation to his patient.⁶

The Supreme Court of Virginia has characterized the role of the physicians in James as “independent contractors”⁷ and “essentially private practitioners.”⁸

Further, we addressed a similar issue regarding the relationship of physician and patient in Davis v. Stover,⁹ In that case, the issue was whether, with regard to a medical malpractice action, a company physician was entitled to the statutory immunity granted to “employee[s] of the same employer”¹⁰ under the workers’ compensation laws. We held that the company physician was not entitled to statutory immunity. We reasoned that the company physician’s

professional standing . . . creates a trusting relationship that cannot be breached with impunity. “A professional person is liable for an abuse of the trust reposed in him by the public, provisions of the compensation act notwithstanding.” [Downey v. Bexley, 253 Ga. 125, 126 (317 SE2d 523) (1984).]

[A] worker expects and trusts his treatment will be made by the doctor’s independent professional judgment. Because of the relationship between physicians and patients, company physicians cannot use the Workers’ Compensation laws as a shield to insulate themselves from individual liability for medical malpractice claims.¹¹

For the reasons outlined above, we conclude that the nature of Dr. Plouffe’s relationship with Ms. Keenan, as well as the fact that the allegations of negligence relate solely to Dr. Plouffe’s independent medical judgment in treating Ms. Keenan, militate towards a ruling that Dr. Plouffe was not acting with the scope of his official state duties in treating Ms. Keenan.

3. Further, an examination of legislative intent bolsters the conclusion that the General Assembly did not intend for the language of § 50-21-25 to provide immunity to physicians under circumstances like those existing in this case. OCGA § 50-21-21 expresses the intent of the Tort Claims Act, and subsection (c) directs that the provisions of the Act “should be construed with a view to carry out this expression of intent.” With regard to official immunity, § 50-21-21 (b) provides as follows:

[T]he proper functioning of state government requires that state officers and employees be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets. Consequently, it is declared to be the public policy of this state that state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions.

This Code section embodies the traditional justification for official immunity.¹² Protecting doctors against the exercise of their medical discretion (as opposed to the exercise of governmental discretion) in treating a private-pay patient does not further the purposes of official immunity. First, a doctor in this situation is under a duty to treat the patient with “a reasonable degree of care and skill,”¹³ regardless of whether the doctor is protected by immunity.¹⁴ Further, liability insurance is readily available for medical doctors who treat private-pay patients.¹⁵ Thus, immunity is not necessary to encourage doctors to treat their patients or to protect their assets.¹⁶ Because the purpose of official immunity is not furthered by construing the phrase “official duties” to encompass the exercise of medical discretion with regard to private-pay patients, we decline to construe that phrase to provide protection in this case.¹⁷

For all of the foregoing reasons, we hold that the trial court erred in granting summary judgment to Dr. Plouffe.

Judgment reversed.

All the Justices concur, except Benham, C. J, who dissents.

1 Whether under the relevant facts (which are not in dispute) Dr. Plouffe is entitled to official immunity is a question of law for the court. See City of Valdosta v. Bellew, 178 Ga. App. 423 (343 SE2d 111) (1986); Hiers v. City of Barwick, 262 Ga. 129, 134 (414 SE2d 647) (1992) (Hunt, J., concurring specially in part).

2 176 Ga. App. 220 (1) (335 SE2d 438) (1985).

3 Although the Court of Appeals used the term sovereign and governmental immunity in its opinion, it is clear from the context that the court was actually applying the concept of official immunity.

4 245 Ga. 329 (264 SE2d 878) (1980).

5 Jackson, 176 Ga. App. at 221. See also Swofford. v. Cooper, 184 Ga. App. 50 (2) (360 SE2d 624) (1987), aff'd 258 Ga. 143 (368 SE2d 518) (1988). Although Jackson has fallen under some criticism, see Judge Beasley’s dissent in Swofford, 184 Ga. App. at 55-56, and Judge Deen’s special concurrence in Roberts v. Grigsby, 177 Ga. App. 377, 379-380 (339 SE2d 633) (1985), we find its reasoning persuasive under the circumstances of this case.

6 James v. Jane, 282 SE2d 864, 867-868 (Va. 1980).

7 Messina v. Burden, 321 SE2d 657, 663 (Va. 1984).

8 Bowers v. Commonwealth, 302 SE2d 511, 515 (Va. 1983).

9 258 Ga. 156 (366 SE2d 670) (1988).

10 OCGA § 34-9-11 (a).

11 Davis, 258 Ga. at 157.

12 Gilbert v. Richardson, 264 Ga. 744, 750 (4) (452 SE2d 476) (1994) (“[T]he basis of the immunity has been not so much a desire to protect an erring officer as it has been a recognition of the need of preserving independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits.”).

13 OCGA § 51-1-27.

14 Kassen v. Hatley, 887 SW2d 4, 10-11 (Tex. 1994); Henderson v. Bluemink, 511 F2d 399, 402-403 (D. C. Cir. 1974); Scarpaci v. Milwaukee County, 292 NW2d 816, 827 (Wis. 1980); Womble v. Singing River Hosp., 618 S2d 1252, 1263-1264 (Miss. 1993).

15 James, 282 SE2d at 54. That is not to say, however, that if a doctor did not have insurance, a different result would obtain.

16 Kassen, 887 SW2d at 11; Womble, 618 S2d at 1263-1264; Henderson, 511 F2d at 402-403.

17 Because this case involves the exercise of a medical discretion on a private-pay patient that was not controlled by the government employer or by statute, we do not consider whether immunity is appropriate for state-employed physicians who are required to treat particular patients, or who are alleged to have violated governmental, as opposed to medical, responsibilities, or whose medical discretion is controlled or impacted by governmental standards or constraints.