KEENAN et al. v. PLOUFFE et al., 267 Ga. 791, 482 S.E.2.d 253
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Michael J. Bowers, Attorney General, Patricia Guilday, Assistant Attorney General, Dye, Tucker, Everitt, Wheale & Long, Duncan D. Wheale, Hull, Towill, Norman & Barrett, Patrick J. Rice, for appellees.Mills & Moraitakis, Roger Mills, Nicholas C. Moraitakis, Glenn E. Kushel, for appellants.
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
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
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
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
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:
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,
[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
[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.
BENHAM, Chief Justice, dissenting.
Being unable to agree with the tenets of the majority opinion, and having some grave concerns that the opinion contains fault lines that will cause the collapse of official immunity for all professionals in government service and will imperil official immunity for all government employees, both professional and non-professional, in spite of the clear legislative enactments to the contrary, I must respectfully dissent.
This case presents the issue of whether a medical doctor at the Medical College of Georgia enjoys official immunity under the constitution and statutes of this state when he exercises his medical judgment in the performance of a medical operation. The trial court held that Dr. Plouffe was clothed with official immunity when he performed the operation in question, but the majority opinion of this Court reverses the trial court, holding that the doctor should be stripped of that protection because he exercised his medical discretion and not his governmental discretion, and because to do otherwise would not be in keeping with the legislative intent.
My disagreement with the majority is on three broad fronts: (1) It fails to show how the denial of official immunity is in keeping with the legislative intent; (2) it fails to provide any clear test as to how professional discretion is distinguished from official discretion; and (3) it fails to show why partial or complete payment for services provided should be a bar to official immunity protection.
A brief review of the facts is necessary for a proper discussion of the issues involved. This case arose out of a suit filed by the husband of a woman who is in a permanent vegetative state allegedly due to the negligent performance of an operation by Dr. Plouffe while he was employed at the Medical College of Georgia as a professor. Before the medical procedure in question, the patient signed a form acknowledging that the procedure would be performed at a teaching hospital and that students and observers would be present for educational purposes. Prior to the operation, the doctor discussed the operation not only with the patient, but also with the students assigned by the medical college to assist and observe, because his responsibilities as a professor included classroom instruction, conferring with students and other faculty members, and the supervision of students and residents. He also had duties of research and service to patients. The trial court determined that Dr. Plouffe enjoys official immunity because, at the time of the operation in question, he was in the performance of his duties as a professor at the Medical College of Georgia.
1. Any analysis of the issue of official immunity must begin with an attempt to determine the legislative intent. A review of constitutional enactments and legislative provisions clearly shows that the legislature intended to insulate state employees from liability and protect them from lawsuits in the performance of their official duties. That intent is set out in OCGA
The General Assembly also recognizes that the 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.
With this legislative intent uppermost in my mind, I have sought to analyze the majority's approach to this problem. The trial court determined that Dr. Plouffe was not acting as an independent contractor at the time of the operation, but was acting pursuant to his responsibilities as a professor at the Medical College of Georgia. The record shows and the trial court determined that Dr. Plouffe was a full-time professor at the medical college; that at the time of the operation, he was working in a teaching capacity; that at the time of the surgery, he was a "physician professor providing clinical care in conjunction with educational instruction . . . [and that he] participated in the subject surgery to teach a resident doctor and . . . he was fulfilling a teaching responsibility at the time." The record further shows that the medical school assigned patients to doctors for medical treatment, assigned student assistants and observers when operations were being performed, and set aside blocks of time for operations to be performed, all without the doctor taking part in the decisions.
2. We must determine whether Dr. Plouffe was acting in an official capacity when he performed the operation in question. The majority opinion at 793 states that "the decisive question in this case is whether Dr. Plouffe was acting within the scope of his official state duties. . . . If he was, then he is protected from suit by OCGA
The opinion goes on to say that Dr. Plouffe was not acting within the scope of his employment because "he had distinct obligations to Ms. Keenan that were independent of his official duties." But the majority opinion fails to say what those duties were. If they were duties imposed on him either ethically or professionally as a doctor, then those were the duties he was employed by the Medical College of Georgia to perform. As a professional, he was hired to exercise his discretion as a doctor.
Noticeably absent from the majority opinion is any mention whatsoever of Azizi v. Bd. of Regents,
The contention that the operation of a hospital in conjunction with the medical college is not a "governmental function" is without merit. Public education is a governmental function and the Medical College of Georgia is an essential unit of this function. A medical college without a hospital in conjunction therewith would be like a buggy without a horse, or in more modern parlance, an airport without aircraft.
The appellate courts of this State have reaffirmed Georgia's commitment to official immunity in several recent cases, e.g., Miller v. Ga. Ports Auth.,
It [is] well established that "where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption." [Cit.]
Georgia is not alone in its desire to clothe government employees with official immunity. Other states have been equally enthusiastic in doing so. Smith v. Arnold, 564 S2d 873 (Ala. 1990); Gargiulo v. Ohar,
Franklin, Taulbee, Rushing, Bunce & Brogdon, Rowe Brogdon, Jr., Cook, Noell, Tolley & Aldridge, J. Vince Cook, Alston & Bird, G. Conley Ingram, Elizabeth Bertschi, amici curiae.
1997
Notes:
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,
2.
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.
5. Jackson, 176 Ga. App. at 221. See also Swofford v. Cooper,
6. James v. Jane,
10. OCGA
11. Davis, 258 Ga. at 157.
12. Gilbert v. Richardson,
13. OCGA
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.
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This document cites
- Supreme Court of Georgia - MILLER et al. v. GEORGIA PORTS AUTHORITY., 266 Ga. 586, 470 S.E.2.d 426 (1996)
- Supreme Court of Georgia - GILBERT et al. v. RICHARDSON et al., 264 Ga. 744, 452 S.E.2.d 476 (1994)
- Supreme Court of Georgia - HIERS et al. v. CITY OF BARWICK et al., 262 Ga. 129, 414 S.E.2.d 647 (1992)
- Supreme Court of Georgia - COOPER v. SWOFFORD et al., 258 Ga. 143, 368 S.E.2.d 518 (1988)
- Supreme Court of Georgia - DAVIS v. STOVER., 258 Ga. 156, 366 S.E.2.d 670
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