In this mеdical malpractice action, Defendants Jennifer Fillers, R.N., Alice Richardson, R.N., Naomi Rademeyer, and Shannon Horton, R.N., have filed Pleas of Sovereign Immunily. For the reasons set forth below, Defendants’ Pleas will be denied.
Facts
The Plaintiff, Airianna Gaines, an infant, by her mother and next friend, Amy Brown, alleges that Ms. Fillers (now Jennifer L. Fox) negligently placed a peripherally inserted catheter central line (“PICC line”) in Airianna Gaines’s right arm. The Plaintiff also alleges that Ms. Richardson, Ms. Rademeyer, and Ms. Horton failed to notice signs and symptoms indicating that the PICC line had been negligently placed. The Defendants, registered nurses at the University of Virginia Medical Center, have responded with Pleas of Sovereign Immunity. Depositions were taken, and a hearing on the Pleas was convened on November 24, 2009.
The following facts are relevant to the Defendants’ Pleas. On December 10, 2006, Airianna Gaines was bom prematurely at the University of Virginia Medical Center. (Compl. at 3.) She was transferred to the Neonatal Intensive Care Unit (“NICU”) at the hospital, where she needed various I.V. lines plaсed, including a PICC line. (Hr’g Tr. at 6.) Ms. Fillers, one of the nurses authorized to place this type of line, (Hr’g Tr. at 6; Fillers Dep. Tr. at 7), placed a PICC line in Airianna Gaines’s right arm according to her standard practice. (Fillers Dep. Tr. at 11-12.) Ms. Fillers chose the arm to use, and she also chose the most appropriate vessel in which to place the catheter. (Id. at 12-13.) Before Ms. Fillers dressed the site, she contacted Dr. Martha Naylor, a fellow in neonatology, for physician review of the placement of the line, as directed by hospital procedures. (Hr’g Tr. at 7; Fillers Deр. Tr. at 20-24.) An x-ray was ordered, Dr. Naylor reviewed the x-ray film, and Dr. Naylor told Ms. Fillers that the line was correctly placed. (Hr’g Tr. at 7.)
Several hours later, the bedside nurse notified Ms. Fillers that the dressing on Airianna Gaines’s arm had become saturated. (Fillers Dep. Tr. at 26.) Ms. Fillers determined that the dressing needed to be changed, and, in the course of changing the dressing, the PICC line moved. Ms. Fillers asked Dr. Naylor for a second x-ray to confirm placement of the PICC line. (Id. at 27.) Another x-ray was taken, and Dr. Naylor told Ms. Fillers the line was correctly placed. (Id. at 27-28; Hr’g Tr. at 8.) Twenty-four hours later, Ms. Fillers removed the line when it became apparent that the arm had blanched below the PICC line site, and a second line was placed. (Fillers Dep. Tr. at 17, 38.) It was later determined that Airianna Gaines’s right arm needed to be surgically removed. (Hr’g Tr. at 8.)
From 7:00 a.m. to 11:00 a.m. on December 12, 2006, Airianna Gaines was alsо the patient of Ms. Richardson, a nurse in the NICU. (Richardson Dep. Tr. at 9.) Throughout her shift, Ms. Richardson checked on the child and assessed the site of the PICC line. (Id. at 24-25.) She paged Ms. Fillers when she noticed there was bleeding at the PICC line site. (Id. at 26.) Ms. Richardson also served as the preceptor tо Ms. Andrea Bowman (id. at 9-10), a nurse in training who provided care to Airianna Gaines, whom the plaintiff has agreed is entitled to sovereign immunity. (Hr’g Tr. at 19.)
Ms. Rademeyer, a nurse in the NICU of the University of Virginia Medical Center, was also on duty on December 12, 2006. She made entries into Airianna Gaines’s chart beforе she went off duty at 7:00 a.m. on
Ms. Horton, a nurse in the NICU of the University of Virginia Medical Center, was also on duty December 12, 2006. Ms. Horton inspected Airianna Gaines’s arm when she first came on duty at 7:00 а.m., (Horton Dep. Tr. at 12), and later at 12:00 p.m. that same day when she noticed that the child’s fingers and hand had turned white. (Id. at 18; see Hr’g Tr. at 8.)
In addition, the following facts set forth in the Defendants’ Pleas are relevant. NICU nurses at the University of Virginia Medical Center have no control over the number and identity of the patients they serve, the amount charged for their services, or the equipment they use. (Hr’g Tr. at 12, 24.) These determinations are made by the Commonwealth, through hospital administrators. (Id.)
Issue Presented
Whether the Defendants, registered nurses and employees of the University of Virginia Medical Center, are entitled to sоvereign immunity from liability for medical malpractice related to care they dispensed under the general supervision of a licensed physician engaged as a fellow in the neonatology department.
Analysis
Sovereign immunity attaches to protect an employeе of the Commonwealth from liability for negligence only when that employee satisfies all four elements of the James v. Jane test:
1. The nature and function performed by the employee;
2. The extent of the State’s interest and involvement in that function;
3. The degree of control and direction exercised by the State over the employee;
4. Whether the act complained of involved the use of judgment and discretion.
James v. Jane,
1. Nature and Function Performed by the Employee; Commonwealth’s Interest and Involvement Therein
For the purposes of analysis, factors one and two of the James v. Jane test will be combined, as the two are closely related and interdependent. As the Supreme Court of Virginia stated in Lohr v. Larsen,
First, the Plaintiff argues that the conduct of the Defendants is analogous to that provided by the physician in Lilly v. Brink, 52 Va. Cir. 182 (Orange County 2000). In Lilly, the Court relied on Lee v. Bourgeois, 252 Va. 328, 332-34,
In James v. Jane,
[T]he paramount interest of the Commonwealth of Virginia is that the University of Virginia operate a good medical school*340 and that it be staffed with efficient and competent administrators and professors. The state is of course interested and concerned that patients who are treated at the University Hospital receive proper medical care. However, the state has this same concern for every patient who is treated in any private hospital or by any doctor throughout the Commonwealth. This is evidenced by the numerous statutes enacted by the General Assembly of Virginia designed tо assure adequate medical care and medical facilities for the people of the state. The state’s interest and the state’s involvement, in its sovereign capacity, in the treatment of a specific patient by an attending physician in the University Hospital are slight, equally slight is the control exercised by the state over the physician in the treatment accorded that patient.
Id. (emphasis added). In this case, because the Defendants were involved purely in providing healthcare, the Court agrees that they are not immune. The Defendants primarily performed a function of providing direct patient care, rather than a student or teaching function. Their function in providing treatment to Airianna Gaines was not oriented toward research, as in the case of Gargiulo v. Ohar, 239 Va. 209,
The distinction between providing direct patient care and performing a training or teaching function was recognized in this Court by Judge Swett in Houchens v. Rector and Visitors of the University of Virginia, 23 Va. Cir. 202, 205 (Charlottesville 1991) (holding that several nurses with specialized training employed at the University of Virginia Hospital were not еntitled to the protection of sovereign immunity for claims of ordinary negligence in the use of heat lamps). Although Defendants argue to the contrary, Judge Swett’s opinion in Houchens is not negated by the Supreme Court of Virginia’s later decision in Lohr,
Although the Dеfendants argue that it would be incongruous if the individual who repeatedly confirmed placement of the PICC line, Dr. Naylor, a neonatology fellow in training, would be immune from liability under Gargiulo while the Defendant nurses in this case would not, the Supreme Court of Virginia has clearly stated that the Commonwealth’s general interest in its citizens receiving adequate medical care is slight in the context of a state’s interest as sovereign. By contrast, the Commonwealth has a significant interest in providing medical education at the University of Virginia Medical Center. Without further guidance from the Suprеme Court, it is difficult to see how providing immunity to nurses assigned to the NICU unit for acts of negligence would further the Commonwealth’s interest in providing medical education.
The Defendants also rely on Judge Peatross’s decision in Rogers v. Commonwealth,
The Defendants also rely on thе opinion of Justice Lemons, then Judge Lemons, in Stevens v. Hospital Auth. of Petersburg,
For the purpose of analysis of entitlement to sovereign immunity, a major distinction between SRMC [Southside Regional Medical Center] and the University of Virginia*342 Medical Center is the nature of the Commonwealth’s interest. In James v. Jane, the Court noted that the Commonwealth’s paramount concern was operating a medical school and not the provision of medical services to the public. By contrast, SRMC was created pursuant to Title 15.1, Chapter 38, § 15.1-1533 et seq., and its sole purpose is the provision of a hospital where medical services and patient care are rendered.
Id. at 164.
Finally, the Defendants also cite statutory changes occurring on July 1, 1996, to bolster their argument that the Commonwealth maintains a significant interest in patient care at the University of Virginia Medical Center sufficient to satisfy the James v. Jane test. In Va. Code § 23-77.4, the General Assembly formally recognized the purposes of the University of Virginia in maintaining a medical school and operating its Medical Center, which include providing “for the care, treatment, health-relatеd services, and education activities associated with Virginia patients, including indigent and medically indigent patients.” Although the Defendants are correct that these statutory changes occurred subsequent to the Supreme Court’s decisions in James v. Jane and Lee, court decisions occurring after the Cоde changes have not deviated from the James v. Jane mode of analysis when considering the Commonwealth’s specific interest in the University of Virginia Medical Center as a training hospital.
2. Degree of Control and Direction Exercised by the Commonwealth over the Employee
The Plaintiff cоncedes that the State exercised direction and control over the Defendants’ conduct. (PI. Opp’n to Defs. Pleas of Sovereign Immunity at 4.)
3. Employee’s Use of Judgment and Discretion
The Plaintiff argues that the Defendants were performing ministerial acts. According to the deposition testimony, however, it is clear that the Dеfendants use discretion and judgment in their duties day-to-day and regarding their care and treatment of Airianna Gaines.
As pertinent to this case, Ms. Fillers chose which of Airianna Gaines’s arm to use when placing the PICC line, and she also chose the most appropriate vessel in which to рlace the catheter. Likewise, it is
Conclusion
In conclusion, since the Defendants have failed to satisfy the first two prongs of the James v. Jane test, the Defendants’ Pleas of Sovereign Immunity should be denied. Neither the nature of the function performed by the nurses assigned to the NICU nor the Commonwealth’s interest in that function are sufficient to warrant immunity from acts of simple negligence. The Defendants primarily served the function of providing patient care to Airianna Gaines, and the Commonwealth has little interest — in its sovereign capacity — in individual patient care as provided at the University of Virginia Medical Center.