Albert L. ROSS, Plaintiff and Appellee, v. Greg M. SCHACKEL, M.D., Defendant and Appellant.
No. 930629.
Supreme Court of Utah.
July 12, 1996.
920 P.2d 1159
We affirm the district court‘s denial of Bruner‘s petition for extraordinary relief.
ZIMMERMAN, C.J., STEWART, Associate C.J., and DURHAM and RUSSON, JJ., concur in the opinion of HOWE.
Ross C. Anderson, Nathan B. Wilcox, Salt Lake City, for plaintiff.
Jan Graham, Att‘y Gen., Elizabeth King, Carol Clawson, Asst. Att‘ys Gen., Salt Lake City, for defendant.
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 Schackel‘s motion for summary judgment, and we granted his petition for interlocutory review.
In his complaint, Ross alleged that Schackel 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,
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.
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
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.
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 rule 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, acting 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 judicial/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.
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
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.
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, in 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 Dict. 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.
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
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) (V.A. 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 emboli. 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. Schackel‘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 per-
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
The second case 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
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.”
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. 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.”
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 pris-
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.
STEWART, Associate Chief Justice, dissenting:
I respectfully dissent.
The issue in this case is not whether the State must provide expensive medical facilities and equipment at the Utah State Prison, or even the number of trained medical personnel the State should employ to provide adequate medical care to prisoners. The issue is whether
Article I, section 11 of the Utah Constitution declares that every person has a right to a
The official immunity doctrine is a relatively recent development in the common law. As one scholar has stated:
[T]he common law traditionally did not distinguish between public officials and pri-
vate individuals for purposes of determining the scope of personal tort liability. In fact, courts that drew such a distinction often imposed a stricter standard of care on officials than on private individuals, holding them personally liable for the consequences of simple non-negligent mistakes.
George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.L.Rev. 1175, 1178 (1977). Indeed, early Utah cases allow an extremely narrow immunity for governmental officers which applied only when acting pursuant to judicial or legislative mandate.
Over time, however, the courts recognized that imposing tort liability on government officials for the exercise of discretionary policy making functions would “make public officials unduly fearful in their exercise of authority and discourage them from taking prompt and decisive action.” Bermann, supra, at 1178. Accordingly, courts and legislatures provided immunity for officials who exercise judicial, quasi-judicial, or legislative functions. See Pierson v. Ray, 386 U.S. 547 (1967); Tenney v. Brandhove, 341 U.S. 367 (1951); Bradley v. Fisher, 13 Wall. (80 U.S.) 335 (1871).
The courts and legislatures also created a qualified immunity for administrative officials and employees who perform discretionary functions. See, e.g., Note, The Discretionary Function Exception to Governmental Tort Liability, 61 Marq.L.Rev. 163 (1977); Bermann, supra, at 1178-79. The doctrine of official immunity, as contrasted with sovereign immunity, provides those persons who must exercise discretion in making policy decisions and implementing innovative programs with judgmental latitude. The considerations that support immunity for judicial and legislative acts and for discretionary acts of administrative officials do not, however, apply to governmental officials engaged in ministerial acts. The scope of the official immunity doctrine is stated in the Restatement (Second) of Torts § 895D (1975), which provides in pertinent part as follows:
(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
(a) he is immune because engaged in the exercise of a discretionary function.
Clinton v. Nelson, 2 Utah 284 (1877), was the first pre-statehood case to deal with the tort liability of a government officer. A prisoner charged a marshal with false imprisonment and tortious mistreatment. The Court held that “the doctrine is well established, we think, that a ministerial officer, in performing his duties if he acts in good faith [i.e., without malice] is only liable for compensatory damages for injuries against law, and is not liable for exemplary damages.” Id. at 290 (emphasis added). Furthermore, the Court held, “In a case where the officer is liable for compensatory damages, that is where no aggravation, no malice is shown—the law fixes the measure of damages at the actual pecuniary loss by reason of the tort.” Id. at 290-91 (emphasis added). By distinguishing between the tortious mistreatment and false imprisonment claims, Clinton makes clear that while the marshal could be held liable for his torts committed in performing ministerial acts, he could not be held liable for those committed while functioning in a judicial or quasi-judicial capacity. See also Snell v. Crowe, 3 Utah 26, 5 P. 522 (1881) (allowing suit against constable for wrongfully excluding property owner from his property).
The majority relies heavily on language in Garff v. Smith, 31 Utah 102, 86 P. 772 (1906), for an extraordinarily narrow definition of the term “ministerial acts.” Garff stated that “a public officer, acting 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.” Id. at 107, 86 P. at 772. In Garff, a sheep inspector, as a public officer, was statutorily authorized to enact regulations and take specific actions to protect the public health. Garff, 31 Utah at 108, 86 P. at 772 (citing 1903 Utah Laws ch. 42, § 4). He was required to exercise what the Court called
Contrary to the majority‘s reading of Garff and in accord with the Court‘s ruling in Clinton, Richardson v. Capwell, 63 Utah 616, 176 P. 205 (1918), held that the issue of whether a jailer was liable for negligence for failing to provide a prisoner with food, warmth, and proper sanitary conditions was an issue for a jury. Many other courts have held jailers, sheriffs, and other such officials liable for a tortious failure to provide prisoners with such necessities. See cases collected in M.L. Schellenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353 (1950). Provision of these necessities certainly requires some amount of discretion. Yet the discretion is entirely unrelated to any government policy making function.
Clearly the essence of the ruling in Richardson is that a prisoner‘s right to the necessities of life could not be tortiously withheld with impunity. Reasonable medical care is one such necessity of life. The majority‘s position in the instant case is that prisoners are not entitled to reasonable medical care because of the wholly unsupported assertion that prison discipline will somehow be harmed if a doctor is held liable for malpractice while actually treating a patient. The majority does not explain how requiring a doctor to meet accepted standards of medical care in diagnosing and treating a patient can adversely affect prison discipline. No other court that I know of has taken such an extreme position.
Benally v. Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962), is in accord with Clinton and Richardson and provides even stronger support for the position that officers owe a duty of reasonable care to prisoners. In Benally, this Court held an officer negligent for failing to protect an intoxicated arrestee from harm caused by his intoxication. The Court stated that the law required the officer to exercise “the degree of care and caution which an ordinary reasonable and prudent person would use under the circumstances” and that an officer was not immune for his negligent ministerial conduct. 14 Utah 2d at 9, 376 P.2d 388 (emphasis added). The case is in accord with a number of official immunity cases from other jurisdictions. See generally M.L. Schellenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353 (1950).
Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367 (1968), does not support the position that all prison officers and employees have total immunity from civil tort actions. That position is contrary to a vast number of cases from other states and this state. Sheffield rests on the traditional distinction between discretionary and ministerial functions and correctly held that administrative level officials, such as a prison warden, were immune from a suit alleging inadequate supervision of inmates when one inmate stabbed another and there was no foreknowledge of the alleged assault. The decision itself makes clear that its holding pertains only to those in a supervisory capacity. Id. at 317, 445 P.2d 367.
In the instant case, Dr. Schackel was not sued for negligence in performing a supervisory function but for failing to exercise reasonable medical care in the actual diagnosis of a patient‘s broken leg. The majority argues that Dr. Schackel‘s position cannot be distinguished from other supervisory personnel at the prison who admittedly are immune under Sheffield. Equating the nature of a prison warden‘s duties and responsibilities with the duties and responsibilities of a treating physician makes no sense at all for purposes of the ministerial/discretionary distinction under the law of official immunity. With respect to the official immunity doctrine and the purpose that doctrine was intended to promote, supervisory acts of prison administrative and prison medical personnel and a practicing doctor who actually renders allegedly incompetent medical services to an incarcerated patient are simply not comparable.
Indeed, the majority goes so far as to state that any actions involving deliberation or judgment are discretionary. For that extreme proposition, the majority cites Garff v. Smith, 31 Utah 102, 86 P. 772 (1906). As explained above, Garff certainly does not provide a precedent for the Court‘s extraordinary, indeed eccentric, definition of a ministerial act as one involving no discretion of any kind. First, that position is plainly contrary to Clinton, Richardson, Benally, and a whole host of other Utah cases, and as far as I know to the rule in every other state in the Union. Second, it is inimical to the policies supporting the doctrine of official immunity. Prosser and Keeton classify discretionary acts that are immune from suit as “involv[ing] some fairly high level of policy making.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 132, at 1060 (5th ed. 1984). The purpose behind official immunity is to avoid the chilling effect that liability can have on a public official who must make critical policy decisions. George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.L.Rev. 1175, 1178 (1977). The majority‘s definition of ministerial acts far exceeds what is necessary or reasonable to further that policy. A physician treating a patient is not involved in making public policy decisions of any kind.
We explicitly made this point in Frank v. State, 613 P.2d 517 (Utah 1980), which concerned a state-employed health care provider‘s liability for malpractice. The Court held that the health care provider acted in a ministerial capacity and was not entitled to immunity for providing negligent medical care. The action against the State was brought under the waiver of immunity provision in the Governmental Immunity Act; the action against the health care provider was a common law tort action in which the health care provider claimed official immunity as a defense. At that time, the Immunity Act had no provision dealing with official immunity of government employees. The Court stated, “The Utah Governmental Immunity Act has no application to individuals; its function is confined to governmental ‘entities.‘” Id. at 520. In discussing the liability of the State under sovereign immunity, we stated:
The Court recognizes the high degree of careful observation, evaluation, and educated judgment reflected in any modern prognosis, and makes no suggestion that a large measure of “discretion,” as commonly defined, is not involved. The exception to the statutory waiver here under consideration, however, was intended to shield those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseeable ways from individual and class legal actions, the continual threat of which would make public administration all but impossible. The one-to-one dealings of physician and patient in no way reflect this public policy-making posture, and should not be given shelter under the Act.
Id. Here, the Court defined the terms “discretionary” and “ministerial” under the provision in the Governmental Immunity Act that waives sovereign immunity for negligent acts of government employees.
Later in the opinion, however, the Court held that the same analysis applied in characterizing the nature of the function performed by a government employee for the purpose of deciding whether the employee was engaged
[C]ommon-law principles of sovereign [sic, i.e., “official“] immunity have been developed, however, which offer protection to the individual under certain circumstances. The case of Cornwall v. Larsen stands for the proposition that a governmental agent performing a discretionary function is immune from suit for injury arising therefrom, whereas an employee acting in a ministerial capacity, even though his acts may involve some decision-making, is not so protected.
Subsequently in Payne v. Myers, 743 P.2d 186, 188 (Utah 1987), this Court stated, “Prior to the 1978 amendment [to the Governmental Immunity Act, which for the first time included a provision on official immunity], the doctors, as governmental employees, had no immunity from suit for their simple negligence.” (Emphasis added.) The position in Payne is consistent with sound authority from other states and Utah precedent going back to Clinton, Richardson, and Benally.
A principal rationale for official immunity is the protection of governmental decision making, whether it be at the top level or at some level below, from second-guessing by the courts. There is nothing whatsoever about the rendition of medical treatment that involves governmental decision making. As the court in Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179 (3d Cir. 1980), stated:
Reviewing the allegations of the complaint in this case, it is evident that plaintiff complains of negligent medical treatment by Dr. Coulam. Such allegations are generally agreed to implicate ministerial rather than discretionary conduct, which does not render the government doctor immune from liability. Jackson v. Kelly, 557 F.2d 735, 738 (10th Cir. 1977); Henderson v. Bluemink, 511 F.2d 399, 402-03 (D.C. Cir. 1974); Spencer v. General Hospital of the District of Columbia, 425 F.2d 479, 489 (D.C. Cir. 1969) (en banc) (Wright, J., concurring). The distinction was aptly noted in the latter case, where it was observed, “This is not to say that the performance of an operation does not involve judgment and discretion. The point is that medical, not governmental, judgment and discretion are involved.” Id.
In short, the discretion a doctor employs is not in any way “governmental” discretion, and his acts for purposes of official immunity are ministerial even though they involve some amount of discretion. This Court made that point explicit in Frank v. State, 613 P.2d 517 (Utah 1980), and it is entirely consistent with the principles stated in the early Utah cases of Clinton and Richardson.
This Court‘s holding in Frank and its dictum in Payne as to the inapplicability of official immunity to the actions of state-employed health care providers in the actual rendition of medical services accords with the vast weight of judicial authority: actual medical treatment is not entitled to immunity under the official immunity doctrine. A number of cases from other state and federal courts hold that a doctor‘s conduct in treating or diagnosing patients is ministerial and is not protected by official immunity. See, e.g., Spencer v. General Hosp. of Dist. of Columbia, 425 F.2d 479, 484 (1969) (Wright,
It is, of course, inconsistent to hold, as the majority does, that a physician‘s treatment of a patient in a state hospital is ministerial but that when a physician treats a prisoner, that treatment is discretionary. There is no analytical basis, in my view, that justifies this inconsistency. Cases from other jurisdictions adhere to logic and consistency and hold that a prison doctor‘s treatment of a prisoner is ministerial and that the doctor is not entitled to official immunity for malpractice committed on a prisoner. Moss v. Miller, 254 Ill. App. 3d 174, 192 Ill. Dec. 889, 894, 625 N.E.2d 1044 (1993), for example, held that a prison physician was not protected from a malpractice action by official immunity because “[t]he duties the State-employed physicians allegedly breached were those every physician owes one‘s patient, rather than obligations incurred solely by virtue of holding a public office.” Id., 192 Ill. Dec. at 894, 625 N.E.2d at 1049. Likewise, Cooper v. Bowers, 706 S.W.2d 542, 542-43 (Mo. Ct. App. 1986), held that because the treatment of patients in a government facility does not involve a governing function, a prison physician had no immunity from a malpractice suit. See also State ex rel. Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975) (failure to provide medical aid to prisoner held actionable); Neal v. Donahue, 611 P.2d 1125 (Okla. 1980) (doctor held liable for release of dangerous juvenile; superintendent of facility, i.e., supervisory official, held not liable).
The majority places great reliance on Schmidt v. Adams, 211 Ga. App. 156, 438 S.E.2d 659 (1993), which I submit rests on a serious confusion of the doctrines of sovereign immunity and official immunity. The majority quotes extensively from the opinion: the physician‘s assistant‘s “primary concern and duty is the governmental function of caring for persons confined in jail“; his actions “clearly were undertaken in his official capacity and as part of a governmental function.” (Emphasis added.) Schmidt focused on the nature of a defendant‘s activity as being a governmental function, while neglecting the discretionary or ministerial nature of the act. A governmental function analysis is simply not the correct analytical model to resolve questions of official immunity.7 For example, Connell v. Tooele City, 572 P.2d 697 (Utah 1977), held that a court clerk was liable for failing to docket the payment of a fine, and because the activity was a ministerial function, albeit a governmental function also, the clerk had no immunity.
On the broader but closely related issue of immunity for physicians employed by state facilities other than prisons, the Supreme Court of Texas held that “government-employed medical personnel are not immune from tort liability if the character of the discretion they exercise is medical and not governmental.” Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex. 1994). The court stated that while the allocation of medical resources is a discretionary act, actual treatment is ministerial, and once treatment is undertaken, state health care professionals owe their
The fact is that the law in almost every other jurisdiction is to the same effect. See, e.g., Davis v. Knud-Hansen Memorial Hosp., 635 F.2d 179, 186 (3d Cir. 1980); Jackson v. Kelly, 557 F.2d 735, 739-40 (10th Cir. 1977);8 Kiersch v. Ogena, 230 Ill. App. 3d 57, 172 Ill. Dec. 335, 340, 595 N.E.2d 696, 701 (1992), appeal denied, 147 Ill. 2d 627, 180 Ill. Dec. 150, 606 N.E.2d 1227 (1992); Watson v. St. Annes Hosp., 68 Ill. App. 3d 1048, 25 Ill. Dec. 411, 415-16, 386 N.E.2d 885, 889-90 (1979); Gould v. O‘Bannon, 770 S.W.2d 220, 222 (Ky. 1989); Kelley v. Rossi, 395 Mass. 659, 481 N.E.2d 1340, 1344 n. 6 (1985).
The majority cites cases from other jurisdictions which it asserts support its decision. Most of the cases concern the liability of medical personnel engaged in supervisory administrative functions who were not involved in the treatment of patients. For example, the majority relies on Estate of Burks v. Ross, 438 F.2d 230 (6th Cir. 1971), which held supervisory psychiatric personnel immune from negligence actions because they exercised only discretionary duties. The majority fails to state, however, that Burks also held hospital staff members liable because their treatment of patients constituted a ministerial function. Burks is flatly contrary to the Court‘s position.
The other three cases which the majority relies upon all involve psychiatric malpractice that allegedly resulted in a patient committing suicide or upon release harming a third party. In such cases, the tort duty imposed on the psychiatrist is different because of the extremely difficult discretionary decisions that must be made.9 Smith v. Arnold, 564 So. 2d 873 (Ala. 1990); Canon v. Thumudo, 430 Mich. 326, 422 N.W.2d 688 (1988); Baker v. Straumfjord, 10 Or. App. 414, 500 P.2d 496 (1972).
The rule is also well-established that a negligent failure to provide medical care to a prisoner known to be in need of such care is actionable against the sheriff and his surety. Mississippi v. Durham, 444 F.2d 152 (5th Cir. 1971); Magenheimer v. State, 120 Ind. App. 128, 90 N.E.2d 813 (1950); Farmer v. State, 224 Miss. 96, 79 So. 2d 528 (1955); Lavigne v. Allen, 36 A.D.2d 981, 321 N.Y.S.2d 179 (1971); State ex rel. Williams v. Adams, 288 N.C. 501, 219 S.E.2d 198 (1975); State v. National Sur. Co., 162 Tenn. 547, 39 S.W.2d 581 (1931); Smith v. Slack, 125 W.Va. 812, 26 S.E.2d 387 (1943); M.L. Schellenger, Annotation, Civil Liability of Sheriff or Other Officer Charged with Keeping Jail or Prison for Death or Injury of Prisoner, 14 A.L.R.2d 353 (1950).
As applied here, therefore, section 63-30-4 is unconstitutional because it deprives Ross of a remedy by due course of law for an injury to his person in violation of article I, section 11 of the Utah Constitution. Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985); Horton v. Goldminer‘s Daughter, 785 P.2d 1087 (1989); Payne v. Myers, 743 P.2d 186 (Utah 1987). I also submit that section 63-30-4 violates article I, section 24 of the Utah Constitution because the patent discrimination between medical care standards applied to prisoners and those applied to other patients in state institutions is clearly not necessary, let alone effective, in promoting a rational prison objective. Lee v. Gaufin, 867 P.2d 572, 579 (Utah 1993); Malan v. Lewis, 693 P.2d 661, 669-70 (Utah 1984).
DURHAM, J., concurs.