596 S.W.2d 30 | Ky. Ct. App. | 1979
The appellant, William H. Frederick, appeals from an order of the Fayette Circuit Court dismissing his medical malpractice claim against the University of Kentucky Medical Center. The trial court ruled that the claim was barred by sovereign immunity.
The appellant maintains that through enactment in 1976 of KRS 164.939 to 164.944 the General Assembly intended to and did waive sovereign immunity as to medical malpractice claims against the Medical Center. KRS 164.939 et seq. permitted the Medical Center, upon appropriate action by the Board of Trustees of the University of Kentucky, to create a “basic coverage compensation fund” for payment of malpractice claims. KRS 164.940(1) defines the fund as one for the purpose of paying claims or judgments for personal injury or death to patients resulting from any tort or breach of duty based on health care services rendered “by the university or its agents.” (Emphasis added.) KRS 164.939 states the purpose of KRS 164.939 to 164.944 to be to promote health and general welfare by authorizing the University of Kentucky to establish from its own funds a fund to assure “that health care malpractice claims or judgments against itself, or its agents will be satisfied.” (Emphasis added.) It is this and other language found in these statutes which the appellant contends evinces the intent of the General Assembly to waive sovereign immunity.
In Kentucky, sovereign immunity may not be waived by implication because Section 231 of the Constitution has been interpreted as requiring specific waiver by the General Assembly directing in what manner and in what courts suit may be brought. Foley Construction Company v. Ward, Ky., 375 S.W.2d 392 (1963); Kentucky State Park Commission v. Wilder, 256 Ky. 313, 76 S.W.2d 4 (1934). There is nothing in KRS 164.939 et seq. which either specifically waives immunity or directs the manner and in what courts malpractice claims against the Medical Center may be brought.
The order of the trial court is affirmed.
All concur.
. Our determination that there has been no waiver of sovereign immunity to permit malpractice actions against the University of Kentucky Medical Center in circuit courts in no way forecloses the possibility of action against the Medical Center before the Board of Claims under the provisions of KRS 44.070 to 44.160. We note that counsel for appellee stated at oral argument that the basic coverage compensation fund has been used to satisfy awards made by the Board of Claims against the Medical Center. Additionally, while the Medical Center may not be sued directly in circuit court, judgments obtained in that court against employees of the Medical Center are payable from the fund under the statute, subject to the limitation contained in KRS 44.160. See Dardeen v. Greyhound Corporation, Ky., 412 S.W.2d 585 (1967).