Ross v. Schackel

920 P.2d 1159, 294 Utah Adv. Rep. 50, 1996 Utah LEXIS 58, 1996 WL 392552

• Court: Utah Supreme Court
• Decided: July 12, 1996
• Docket: 930629
• Status: Published

Opinions

HOWE, Justice:

Plaintiff Albert L. Ross, a prison inmate, brought this negligence action against defendant Greg M. Schackel, a physician employed by the Utah State Prison. The district court denied Sehackel’s motion for summary judgment, and we granted his petition for interlocutory review.

In his complaint, Ross alleged that Schack-el negligently misdiagnosed his leg fracture as cartilage and ligament damage, failed to treat the fracture, and ignored his repeated complaints of severe pain. As a result, his leg healed improperly and physicians at the University of Utah Medical Center had to perform surgery to rebreak the leg and set it properly with pins and metal rods. He brought this action against Schackel, claiming damages for physical pain, mental anguish, and severe leg impairment. Schackel moved to dismiss, contending that he was immune from liability for negligence under the Governmental Immunity Act, Utah Code Ann. § eS-SO-á^).¹ The trial court denied the motion, ruling that subsection 63-30-4(4) was unconstitutional under the open courts clause of the Utah Constitution. Utah Const, art. I, § 11. After further discovery, Schackel moved for summary judgment, arguing that subsection 63-30-4(4) did not violate the open courts clause because it was not an arbitrary or unreasonable abrogation of the rights or remedies that prisoners enjoyed at common law. The trial court rejected that argument and denied the motion. Schackel appeals.

We initially dispose of Ross’s contention that this court lacks jurisdiction to grant and hear Schackel’s appeal. He argues that the district court entered its order denying Schackel’s motion for summary judgment on November 18,1993, and that Schackel’s petition for permission to appeal from that interlocutory order was not filed within twenty days thereafter as mandated by rule 5(a) of the Utah Rules of Appellate Procedure.

We conclude that we do have jurisdiction. Because the order denying Schackel’s motion for summary judgment was not a final order, he could and did move for reconsideration of that denial. Utah R.Civ.P. 54(b); Timm v. Dewsnup, 851 P.2d 1178, 1185 (Utah 1993). His motion to reconsider was denied by the district court on December 6, 1993. His petition for permission to appeal from that December 6 denial was timely filed on December 27 (December 26, the twentieth day, fell on a holiday). Thereafter, this court granted Schaekel’s petition for permission to appeal from the December 6 order of denial.

In determining whether the trial court correctly denied Schackel’s motion for summary judgment, we examine whether there is a genuine issue as to any material fact, and if there is not, we examine whether Schackel is entitled to judgment as a matter of law. Arrow Indus., Inc. v. Zions First Nat’l Bank, 767 P.2d 935, 936 (Utah 1988). Under subsection 63-30-4(4) of the Utah Code, a plaintiff cannot maintain an action against a government employee unless the employee acted with fraud or malice. Lancaster v. Utah State Prison, 740 P.2d 261, 262 (Utah 1987); Maddocks v. Salt Lake City Corp., 740 P.2d 1337, 1339 (Utah 1987). In this case, Ross has alleged only negligence. Therefore, we must reverse the trial court’s order denying Schackel’s motion for summary judgment unless we find that subsection 63-30-4(4) is unconstitutional as applied to prisoners’ negligence actions against prison physicians. In examining this issue, we grant no deference to the trial court’s conclusions of law but review them for correctness. Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988).

I. THE OPEN COURTS CLAUSE

The open courts clause provides:

All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

Utah Const, art. I, § 11. Schackel asks this court to reconsider its holding in Berry v. Beech Aircraft Corp., 717 P.2d 670, 680 (Utah 1985), that the open courts clause limits the legislature’s ability to substantially modify or abrogate remedies for injuries to person, property, or reputation. He argues that, on its face, the open courts clause protects procedural rather than substantive rights and limits judicial rule making, not legislative lawmaking. He also argues that this court’s interpretation of the open courts clause in Berry violates the fundamental principle of separation of powers by empowering the common law with constitutional status over statutory law. Finally, he asserts that the political climate during the early history of Utah, which was characterized by distrust of courts, demonstrates that the constitutional framers wrote the open courts clause solely as a limitation on the judiciary, not on the legislature.

It is unnecessary for us in this case to undertake the reconsideration of our holding in Berry because even under that decision, the denial of Schackel’s motion for summary judgment cannot be sustained. Under Berry, subsection 63-30-4(4) is unconstitutional if it abrogates an existing legal remedy for the violation of a basic right and fails either to provide an alternative remedy or to justify the abrogation by citing the vindication of a social or an economic evil. Berry, 717 P.2d at 677 n. 4, 680. In deciding whether this subsection abrogated such a remedy, we must examine the common law at the time of statehood to determine whether a prisoner could recover damages from a prison physician for negligent medical care. Id. at 676 n. 3

An examination of the cases decided by this court at or about the time of statehood reveals the general rale that public officers and employees enjoyed no official immunity for negligently performed ministerial acts but were shielded by immunity if the act involved the exercise of discretion. In Clinton v. Nelson, 2 Utah 284 (1877), a prisoner sued a U.S. marshal for false imprisonment and for “cruel and inhuman treatment” while a prisoner. Id. at 285. On the first issue, the prisoner contended that the marshal improperly imprisoned him at a location other than the county jail. Id. at 287. The Utah Territorial Supreme Court held that the marshal, who had acted in good faith and on a valid warrant, was entitled to “reasonable discretion” as to where he should house the prisoner. Id. at 290. On the second issue, the court found, “Nothing whatever has appeared that would evince any intention on the part of the marshal to act cruelly toward the appellant.” Id. The court concluded that the prisoner was not entitled to any damages because the marshal had not violated any duty to the prisoner. Id. at 291.

In the early years of statehood, this court decided Garff v. Smith, 31 Utah 102, 86 P. 772 (1906). In Garff, a sheepherder brought a negligence action against the state sheep inspector, contending that the inspector’s quarantine of his sheep in a place without proper food caused the death of 1,500 head. 31 Utah at 105-06, 86 P. at 772-73. The court articulated the following rule:

[A] public officer, aeting judicially, or in a quasi judicial capacity, cannot be made personally liable in a civil action, unless the act complained of be willful, corrupt, or malicious, or without the jurisdiction of the officer. But, if the duties of the officer are merely ministerial, he is liable in a civil action when, in the performance of them, he acts negligently.

31 Utah at 107, 86 P. at 773. The court concluded that the inspector’s actions were quasi-judicial in nature because he was statutorily authorized to make immediate regulations for the quarantining of diseased sheep. 31 Utah at 108, 86 P. at 774. These regulations, including the defining of the place and limits of the quarantine, were left wholly to the judgment and discretion of the inspector. Thus, the court held that the inspector was immune from a negligence action. Id.

This court continued to recognize the ministerial versus judieial/quasi-judicial distinction, although using somewhat different terminology, in Richardson v. Capwell, 63 Utah 616, 176 P. 205 (1918). In Richardson, this court found that a marshal could not be liable for false imprisonment if he acted pursuant to a warrant, in good faith, and without malice because the arrest, conviction, and imprisonment of a person are “official acts” subject to immunity. 63 Utah at 624, 176 P. at 208. However, we held that a jailer had to provide food, warmth, and sanitary conditions to prisoners and that a prisoner could obtain compensatory damages from a jailer for failing to provide these necessities. Id. The “official” acts referred to in Richardson were granted immunity the same as judicial/quasi-judicial acts were in Garff. The court explained that sound public policy demands that “all judicial officers feel free to exercise their duties fearlessly and without the dread or fear of a damage suit for false imprisonment for any mistake of judgment.” 63 Utah at 624, 176 P. at 209.

We echoed this rule and policy statement in Hjorth v. Whittenburg, 121 Utah 324, 241 P.2d 907 (1952). There we held that a state road commissioner exercising his discretionary, official duties was not liable for damages to property adjacent to a highway, “otherwise public officials would be fearful to act at the risk of finding themselves personally liable for acts done in good faith in the performance of their duties.” 121 Utah at 329, 241 P.2d at 909.

More recently, in Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367 (1968), an inmate brought an action against the warden of the Utah State Prison for injuries he received when a fellow prisoner stabbed him. We explained, “The anciently established and almost universally recognized general rule which this court has consistently announced and adhered to is that the government, its agencies and officials performing governmental functions are protected by sovereign immunity.” 21 Utah 2d at 316, 445 P.2d at 368 (footnote omitted). We contrasted the potential for abuse of prisoners with the need of prison supervisors to have broad power in maintaining order and discipline, stating, “If such officials are too vulnerable to lawsuits for anything untoward which may happen to inmates a number of evils follow, including a breakdown of discipline and the fact that capable persons would be discouraged from taking such public positions.” 21 Utah 2d at 317, 445 P.2d at 369 (footnote omitted). We concluded:

[W]here one inmate has injured another, the warden and other prison officers are protected by the doctrine of sovereign immunity against claims of negligence so long as they are acting in good faith and within the scope of their duties, and that they could not be held liable unless they were guilty of some conduct which transcended the bounds of good faith performance of their duty by a wilful or malicious wrongful act which they know or should know would result in injury.

Id.

Sheffield, therefore, granted broad immunity to acts of prison officers absent a “wilful or malicious wrongful act,” justifying the doctrine on the basis of prison officers’ need to maintain order and discipline among the most rancorous individuals in society. Although unstated, this immunity apparently applied only to discretionary acts of prison officers but not to ministerial duties.² See Cornwall v. Larsen, 571 P.2d 925, 927 (Utah 1977) (commenting to this effect).

Drawing on these cases, we can identify the applicable rule at common law: A prison doctor, if performing a ministerial duty in good faith, would have been liable for compensatory damages but not for punitive damages. However, the doctor would have been immune from an action for negligence if acting in a discretionary, official capacity. Applying this rule to the facts in this case, we examine whether Schackel’s care of Ross constituted a ministerial act at common law.

In Garff, we described a ministerial act as one that is

absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action is ministerial when it is the result of performing a certain and specific duty arising from fixed and designated facts.

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A ministerial act is one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.

Garff, 31 Utah at 107-08, 86 P. at 773-74 (adopting the language of People v. Bartels, 138 Ill. 322, 27 N.E. 1091, 1092 (1891), and State v. Meier, 143 Mo. 439, 45 S.W. 306, 308 (1898)).

Thirty years later, m State Tax Commission v. Katsis, 90 Utah 406, 62 P.2d 120 (1936), this court cited with approval the following definitions of what constitutes a ministerial act:

“The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion.” Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65.

“A ministerial act may be defined to be one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the acts being done.” 2 Bouv.Law Diet. 416; 27 Cyc. 793.

90 Utah at 413, 62 P.2d at 123 (holding tax assessment a quasi judicial act). An example of a ministerial duty for which there is no immunity occurred in Connell v. Tooele City, 572 P.2d 697, 699 (Utah 1977), where a court clerk was held to be liable for failing to properly docket the payment of a fine, resulting in the issuance of a bench warrant and subsequent arrest of the plaintiff.³

Although we do not have any direct case law to rely upon,⁴ applying the standard in Garff and Katsis we conclude that Schackel’s rendering of medical care to prisoners could not properly be described as ministerial in nature at common law. The care a prison physician provides does not merely involve the execution of a set task without the need for judgment or discretion. Nor does the care arise out of a clear state of facts. Rather, a great deal of judgment and opinion are involved in making a diagnosis and prescribing appropriate medical treatment.

A number of cases from other jurisdictions hold that medical care is discretionary in nature, entitling the physician to immunity. See Estate of Burks v. Ross, 438 F.2d 230, 235 (6th Cir.1971) (VA. hospital physician “in her diagnoses and treatment of patients ... was vested with discretion” and therefore was entitled to immunity from suit); Smith v. Arnold, 564 So.2d 873, 876 (Ala.1990) (state hospital psychiatrist immune from liability because his decisions and recommendations concerning patient’s care were discretionary); Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688, 699 (1988) (medical decision making is inherently discretionary); Baker v. Straumfjord, 10 Or.App. 414, 500 P.2d 496, 497 (1972) (physician employed at state university infirmary immune from liability for student’s suicide because alleged negligent acts were discretionary in nature), modified by Comley v. Emanuel Lutheran Charity Bd., 35 Or.App. 465, 582 P.2d 443, 448 (1978).⁵

Prison doctors would seem to be especially entitled to immunity given that their official duties are integral to the performance of a uniquely governmental function. A recent opinion highlighted the governmental role prison medical workers perform in holding a physician’s assistant immune from liability for alleged negligence in diagnosing and treating a jail inmate’s fatal pulmonary em-boli. Schmidt v. Adams, 211 Ga.App. 156, 438 S.E.2d 659, 661 (1993). The court explained that the assistant was not acting “within the scope of a traditional doctor-patient relationship which incidentally arises at a publicly owned or funded hospital,” but as a jail employee, “his primary concern and duty is the governmental function of caring for persons confined in the jail.” Id., 438 S.E.2d at 660. The court concluded that the assistant’s actions “clearly were undertaken in his official capacity and as part of a governmental function.” Id. at 661. Schaekel’s duties were likewise uniquely different from those of a doctor in the private sector, where no function distinctive to government is being exercised.⁶

Virginia courts have also distinguished between government physicians generally, James v. Jane, 221 Va. 43, 282 S.E.2d 864, 867, 870 (1980) (no immunity for attending physicians on medical school faculty where they essentially acted as independent contractors), and those physicians more closely tied to the government’s interests. Gargiulo v. Ohar, 239 Va. 209, 387 S.E.2d 787, 790-91 (1990) (holding physician immune where, among other things, he was salaried state employee, received no compensation from patients, and was not permitted to choose or refuse patients); Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569, 572 (1973) (same), overruled on other grounds, First Virginia Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8, 12 (1983).

We conclude that under our common law at the time of statehood, physicians employed by the state to provide medical care to prisoners would not have been liable for negligence. We recognize that two recent cases hold prison doctors liable for negligence. Moss v. Miller, 254 Ill.App.3d 174, 192 Ill.Dec. 889, 894, 625 N.E.2d 1044, 1049 (1993); Cooper v. Bowers, 706 S.W.2d 542, 543 (Mo.Ct.App.1986).⁷ Nevertheless, we are persuaded that our common law more closely comports with the approach of the court in Schmidt This conclusion is consistent with the public policy of granting immunity in that prison doctors should be able to freely perform their duties without the fear of being sued by prisoners and without spending a significant amount of their time defending lawsuits.⁸ See Richardson, 63 Utah at 624, 176 P. at 209; Hjorth, 121 Utah at 329, 241 P.2d at 909; Sheffield, 21 Utah 2d at 317, 445 P.2d at 369.

In his dissenting opinion, Justice Stewart relies upon two cases that we decided over eighty years after statehood and after the passage of the Governmental Immunity Act (the Act) in 1965 which waived governmental immunity in many areas where it had existed since before statehood. In the first case, Frank v. State, 613 P.2d 517 (Utah 1980), a patient at the University of Utah Medical Center committed suicide. His family brought suit against the state and a psychologist—not a physician—who worked with the hospital under a contractual arrangement. We held that the Act generally waives the state’s immunity when the plaintiff alleges a negligent act of a state employee. Id. at 519; see Utah Code Ann. § 63-30-10. We further held that the same legal standard should apply to the individual: “[I]t is contrary to reason to deny governmental immunity to a public employer and then grant it to the very employee allegedly causing the injury.” Frank, 613 P.2d at 520. This denial of immunity to the employee marked a change from the case law we have discussed above and was driven by the necessity to make the law congruent after the change wrought by passage of the Act.

The second ease relied upon by Justice Stewart is Payne v. Myers, 743 P.2d 186 (Utah 1987), a suit against two state-employed physicians. We noted that a 1978 amendment was made to the Act providing that no government employee shall be held personally liable for his or her acts or omissions unless the employee acted or failed to act due to gross negligence, fraud, or malice. Id. at 188; see Utah Code Ann. § 63-30-4(4). We further noted, “Prior to the 1978 amendment, the doctors as governmental employees had no immunity from suit for their simple negligence.” 743 P.2d at 188. That statement reflected our decision in Frank v. State. It did not reflect the state of the law at or around statehood, when a government employee enjoyed immunity in the performance of discretionary acts.

Because Schackel would not have been liable for negligence under the common law at statehood, it follows that subsection 63-30-4(4) does not violate the open courts clause.

II. DUE PROCESS

Ross contends that even if subsection 63-30-4(4) is valid under the open courts clause, Schackel is not entitled to summary judgment because the subsection violates the due process clause of the Utah Constitution. This clause states, “No person shall be deprived of life, liberty or property, without due process of law.” Utah Const, art. I, § 7. In examining the subsection under the due process clause, we will apply the rational basis test. Under this test, we cannot invalidate the subsection unless the recognition of statutory immunity for negligent prison physicians constitutes an unreasonable, arbitrary method of achieving the statutory objectives.

The legislative history fails to explain the objectives of subsection 63-30-4(4), so we will evaluate it on the basis of its perceived purpose with regard to prison employees. See Blue Cross & Blue Shield v. State, 779 P.2d 634, 637 (Utah 1989) (explaining that this court may judge statutes on the basis of their reasonable or actual legislative purposes). We perceive that the legislative objective was to balance prisoners’ interests in the fulfillment of their basic needs with the public interest in maintaining prison discipline. This court has already recognized that because of the hostile working environment of the prison, workers need some flexibility to maintain security while administering to the daily needs of prisoners. Wickham v. Fisher, 629 P.2d 896, 901 (Utah 1981); Sheffield, 21 Utah 2d at 317, 445 P.2d at 369. Prisoners frequently threaten and assault medical personnel, and they often feign illness to obtain unnecessary medications, manipulate housing assignments, and escape work. If prisoners were allowed to bring actions against medical personnel for negligence, personnel might be more easily manipulated or threatened and breakdowns of discipline might occur. See id. Thus, we find that maintaining immunity for prison physicians from actions for negligence but subjecting them to liability for fraud or malice is a reasonable method of meeting prisoners’ needs while maintaining discipline in the prison.

III. UNIFORM OPERATION OF LAWS

Finally, Ross contends that subsection 63-30-4(4) violates the uniform operation of laws clause of the Utah Constitution. This clause provides, “All laws of a general nature shall have uniform operation.” Utah Const, art. I, § 24. A law is valid under this clause if (1) it applies equally to all persons within a class and (2) the statutory classifications are based on differences that have a reasonable tendency to further the statutory objectives. Matan v. Lewis, 693 P.2d 661, 670 (Utah 1984). The standard of reasonableness required by the second part of the test is higher than the standard of reasonableness required under the federal equal protection clause. Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 889 (Utah 1988).

Ross argues that this court should not apply the reasonableness standard but should apply a “heightened standard of review” as did the lead opinion in Condemarin v. University Hospital, 775 P.2d 348, 356 (Utah 1989), because this case involves a classification that infringes upon the right to a remedy and therefore must be supported by a strong countervailing public interest. In making this argument, Ross misstates the law. This court does not apply a heightened standard every time the legislature infringes upon a potential remedy; it applies a heightened standard only when the legislature infringes upon an interest protected by the open courts clause. Such an interest was involved in Condemarin, where Justice Durham articulated and applied a heightened standard and concluded that the Utah Governmental Immunity Act abrogated an individual’s common law right to recover damages for injuries negligently inflicted by employees of the University Hospital. Id. This conclusion was based upon the common law rule that an individual could recover from a governmental agency if the agency was involved in proprietary activities but not if it was involved in purely governmental activities. Id. at 350-52. In this case, however, subsection 63-30-4(4) did not abrogate' a common law right to a remedy, and the reasonableness standard applies.

Ross asserts that subsection 63-30-4(4) creates two unreasonable classifications. First, it allows all victims of medical malpractice except those injured by government employees to recover from the tortfeasors. However, this is an inaccurate characterization of the classification at issue. The subsection does not separate those injured by government employees from all other medical patients; it separates prisoners injured by prison medical workers’ negligent medical care from medical patients injured at the University Hospital and private hospitals. See Condemarin, 775 P.2d at 356. We find that this is a reasonable classification.

The general principle underlying the uniform operation of laws clause is that “persons similarly situated should be treated similarly, and persons in different circumstances should not be treated as if their circumstances were the same.” Malan, 693 P.2d at 669. The circumstances of prisoners are drastically different from the circumstances of patients at the University Hospital and private hospitals. In these hospitals, patients check in voluntarily because of health problems. Prisoners, on the other hand, are placed in prison because they have not conformed to the basic rules necessary for living in society, and prison health workers must make judgment calls about prisoners’ health while avoiding manipulation and ignoring harassment. The dangers inherent in operating a prison justify, or even necessitate, a classification which separates prisoners from other medical patients. While prisoners’ status as felons does not justify divesting them of all of their rights, it must play a role in determining whether the statutory classification of prisoners apart from other members of society is constitutional. See, e.g., Wickham, 629 P.2d at 901 (acknowledging that prisoners do not enjoy full rights of personal liberty enjoyed by society at large); In re Goalen, 30 Utah 2d 27, 30-31, 512 P.2d 1028, 1029-30 (1973) (holding that it is not unconstitutional to deny prisoner the right to marry), cert. denied, 414 U.S. 1148, 94 S.Ct. 905, 39 L.Ed.2d 104 (1974). In this ease, we find that treating prisoners differently from patients at the University Hospital and private hospitals does not violate the uniform operation of laws clause.

The second classification that Ross cites as unreasonable is based upon the premise that subsection 63-30-4(4), when combined with subsection 63-30-10(10), which retains government entities’ immunity from liability for injuries arising out of incarceration, effectively precludes prisoners from bringing negligence actions against any party. Ross argues that this unconstitutionally separates prisoners from University Hospital patients, who may recover from the hospital. However, as we have already discussed above, this is not an unreasonable classification, and the fact that prisoners are prohibited from recovering from the state, as well as from the prison physician, does not alter that conclusion. Accordingly, Schackel is entitled to summary judgment as a matter of law.

Reversed.

ZIMMERMAN, C.J., and RUSSON, J., concur.

1 . Section 63-30-4(4) provides:

An employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment, or under color of authority, unless it is established that the employee acted or failed to act due to fraud or malice.

2 . In his dissenting opinion, Associate Chief Justice Stewart relies on Benally v. Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962), and states that we there held that the officer involved "was not immune for his negligent ministerial conduct." However, I can find no mention of immunity in the court’s opinion.

3 . In his dissenting opinion, Justice Stewart maintains that to be immune, a discretionary act must involve high-level policy making. That is true under the 1965 Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -34. See Carroll v. State, 27 Utah 2d 384, 388-89, 496 P.2d 888, 891 (1972). In Frank v. State, 613 P.2d 517, 520 (Utah 1980), we adopted that definition in a suit against a psychologist working in a state hospital to make the law congruent in suits against the state under the Immunity Act and suits against the employee whose negligence caused the alleged injury. But as indicated above, before the passage of the Immunity Act, there was no requirement that to be immune, a discretionary act had to involve high-level policy making.

4 .The parties have not cited us to, nor have we fotmd, any cases specifically addressing the liability of government-employed doctors at the turn of the century. Cf. Wood v. Boone County, 153 Iowa 92, 133 N.W. 377, 380-81 (1911) (finding that county overseer of poor was immune from liability for failing to ensure that adequate medical attention was given to transient).

5 . We recognize that there is a split of authority on this issue. We do not attempt to address whether immunity should apply to all government-employed physicians generally but limit our decision to those working in prisons.

6 . In his dissenting opinion, Justice Stewart opines that the medical care of prisoners is not a governmental function, relying on a concurring opinion in Spencer v. General Hospital of the District of Columbia, 425 F.2d 479, 489 (D.C.Cir. 1969). There is a vast difference between the operation of a state-owned hospital, where patients are voluntarily admitted as they are at private hospitals, and the operation of a prison, where its residents are kept involuntarily and the state must provide for their every need.

7 .The dissent cites numerous cases holding physicians employed by state facilities other than prisons liable for negligence. While these cases offer some insights, the issue before us is whether prison physicians would be liable under our common law at the time of statehood.

8 . One prison doctor testified that in fifteen years of private practice, he had been sued by a patient only once. However, in two years at the prison, he was sued twenty-two times and stated that he does not "go a week without being threatened with litigation."