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S Y M P O S I U M : E V O L V I N G M E D I C O L E G A L C O N C E P T S

Sovereign Immunity: Principles and Application in Medical Malpractice

Michael Suk MD, JD, MPH, FACS

Published online: 14 March 2012

� The Association of Bone and Joint Surgeons1 2012

Abstract

Background Tort law seeks accountability when parties

engage in negligent conduct, and aims to compensate the

victims of such conduct. An exception to this general rule

governing medical negligence is the doctrine of sovereign

immunity. Historically, individuals acting under the

authority of the government or other sovereign entity had

almost complete protection against tort liability.

Questions/purposes This article addressed the following:

(1) the development of sovereign immunity in law, (2) the

lasting impact of the Federal Tort Claims Act on sovereign

immunity, and (3) the contemporary application of sover-

eign immunity to medical malpractice, using case

examples from Virginia and Florida.

Methods I performed an Internet search to identify

sources that addressed the concept of sovereign immunity,

followed by a focused search for relevant articles in Pub-

Med and LexisNexis, literature databases for medical and

legal professionals, respectively.

Results Historically, sovereign liability conferred abso-

lute immunity from lawsuits in favor of the sovereign (ie,

the government). Practical considerations in our democratic

system have contributed to an evolution of this doctrine.

Conclusions Understanding sovereign immunity and its

contemporary application are of value for any physician

interested in the debate concerning medical malpractice in

the United States. Under certain circumstances, physicians

working as employees of the federal or state government

may be protected against individual liability if the gov-

ernment is substituted as the defendant.

Introduction

The legal basis for accountability in medical practice is

rooted in negligence law. Negligence law is comprised of

four elements: duty, breach, causation, and harm. In other

words, it imposes a duty on individuals and organizations

to meet standards of due care as established by peer

practice. If a failure to meet such standards results in harm

to another party, those individuals or organizations

responsible can be sued and may be found liable for

damages in a court of law. Medical malpractice is a unique

subset of negligence or tort law whose regulation is both a

fertile and active battleground between physicians, attor-

neys, and lawmakers. Traditionally, in medical malpractice

cases involving negligent acts or omissions, the physician

is individually liable for damages. However, a powerful

shield to physician liability can manifest if the government

is substituted as defendant when a physician is acting

within the scope of federal or state employment.

Sovereign immunity is a legal doctrine that protects a

sovereign body (ie, the federal or state government and

their respective agencies) from being held liable for civil

wrongs (torts) committed by its departments, agencies, or

employees, unless consent to be sued is expressly granted

by the sovereign body itself. This blanket protection from

liability is clearly advantageous for the sovereign, but

The author certifies that he or a member of his immediate family, has

no commercial associations (eg, consultancies, stock ownership,

equity interest, patent/licensing arrangements, etc) that might pose a

conflict of interest in connection with the submitted article.

All ICMJE Conflict of Interest Forms for authors and Clinical Orthopaedics and Related Research editors and board members are on file with the publication and can be viewed on request.

M. Suk (&) Department of Orthopaedic Surgery, Geisinger Health System,

MC 21-30, 100 N Academy Ave, Danville, PA 17822, USA

e-mail: [email protected]

123

Clin Orthop Relat Res (2012) 470:1365–1369

DOI 10.1007/s11999-012-2311-x

Clinical Orthopaedics and Related Research® A Publication of The Association of Bone and Joint Surgeons®

leaves the injured party with little or no remedy for the

harm suffered. The concept of sovereign immunity creates

certain exceptions to medical malpractice liabilities that are

important for clinicians to understand. Accordingly, this

review had the following purposes: (1) discuss the devel-

opment of the sovereign immunity doctrine in law

(2) examine the lasting impact of the Federal Tort Claims

Act on sovereign immunity, and (3) examine the contem-

porary application of sovereign immunity to medical

malpractice. Specific examples examined include the

unique circumstances applied to military personnel on

foreign soil covered under the Medical Malpractice

Immunity Act, the legal interpretive test established by the

state of Virginia, and finally the policy-based approach in

the state of Florida that applies to physicians working in

teaching hospitals and medical schools.

Search Strategy and Criteria

I searched the topic of ‘‘sovereign immunity’’ in a general

Internet query, using the Google search engine. Legislative

acts and legal cases thus identified were further investi-

gated using the PubMed and LexisNexis databases used by

medical and legal professionals, respectively, to learn

about the selected examples cited in this article. Inclusion

criteria for such relied principally upon relevance to the

topic of how sovereign immunity modulates medical mal-

practice law, and the lessons that may be of interest and

value to practicing clinicians.

The Doctrine of Sovereign Immunity

In the context of this legal framework, broad bars to legal

liability for negligent acts are often called immunities. At

the level of the state and federal governments, this

immunity is usually referred to as sovereign immunity and

is associated with the idea that the ‘‘King can do no wrong’’

[10]. The doctrine of sovereign immunity holds that the

government cannot be sued or held legally responsible for

its actions or the actions of its branches, departments,

agencies, and employees [4]. Today, cases of negligent acts

by physicians employed by the federal or state govern-

ments are sometimes covered under this doctrine and

provide broad protections against individual liability;

however, its application is both complex and often

misunderstood.

The general principle of sovereign immunity was carried

over to the United States, even without a ‘‘sovereign.’’ The

reason for this was partly the belief that actions of the

executive branch should not be subject to regular judicial

review as a result of individual tort litigation [12]. The

modern rationale focuses on the inappropriateness of

holding government to the same standards of due care

applicable to private parties. As a general rule, actions

taken by the government are immune from suit, except if

the government consents to litigation.

Physicians working as an employee of the federal or

state government often cite sovereign immunity as the

basis for the claim that they cannot be sued. As a general

rule, this is an inaccurate assertion. In fact, government

employment status and its attendant liability protection is

more appropriately defined as ‘‘defendant substitution,’’

whereby the government waives sovereign immunity and

consents to be sued in lieu of the individual physician. The

genesis of this legal rubric lies in the Federal Tort Claims

Act [18].

The Federal Tort Claims Act

The broad application of sovereign immunity did not his-

torically preclude individuals from suing the government

for acts resulting in harm. Early cases of tort litigation

against the United States show that success in obtaining

damage awards was both extremely challenging and

granted only under very limited circumstances: (1) if the

individual could demonstrate that the government com-

mitted a taking of property compensable under the

Constitution, or (2) if the individual had the political

connections and wherewithal to maneuver a private bill

through Congress [10]. Owing to the burdensome nature of

this process, Congress enacted the Federal Tort Claims Act

in 1946. Under the Federal Tort Claims Act, the govern-

ment allows itself to be sued for the acts of its departments,

agencies, and employees to the same extent as a private

individual for inappropriate acts under negligence law [3].

In the broad view, when the government’s conduct is at

the planning level, it is protected by the immunity. How-

ever, during its execution (ie, the operational level) the

government is not immune and its actions must be carried

out with ‘‘reasonable care.’’ Reasonable care is a concept

of tort law and refers to conduct that a reasonable person in

the defendant’s shoes would have engaged in under similar

circumstances. Affirmative, specific acts of negligence are

often clearly operational, so that the government can be

held liable for the negligent operation of automobiles [15],

airport control towers [13], lighthouses [7], and the negli-

gent performance of medical care [16].

For example, if the government makes an administrative

decision that wrongly denies a patient admission to a

hospital (planning level), and the patient is harmed because

of a failure to provide the standard of care once he is

admitted (operational level), immunity is applied for the

1366 Suk Clinical Orthopaedics and Related Research 1

123

first act [11], but not the second [16], under the modern

interpretation of sovereign immunity.

The Federal Tort Claims Act specifically gives plaintiffs

the option of suing the government in addition to, or in lieu

of, the federal employee under the laws of the state in

which the negligent act occurred [18]. However, while the

plaintiff has the option of suing the United States in

addition to the employee, he may only recover damages

from one defendant [6]. For practical reasons, many

plaintiffs elect to sue only the government over the

employee because recovery of monetary damages is far

more certain. However, with that decision, plaintiffs give

up certain remedies. For example, under the Federal Tort

Claims Act, punitive damage awards against the govern-

ment are expressly disallowed [15]. Moreover, the Federal

Tort Claims Act imposes a 2 year statute of limitations,

which, in some instances, may be shorter than under many

state laws [17]. Finally, in medical malpractice cases, a

jury trial is often preferred, particularly if the injury has the

potential to elicit sympathy. Under the Federal Tort Claims

Act, jury trials are not allowed [9].

Medical Malpractice Immunity Act

As originally enacted, the Federal Tort Claims Act gave a

general consent for defendant substitution with specific

exceptions. Particular to medical malpractice, one of the

exclusions under the Act applied to the ability to sue the

federal government for negligent acts by US medical per-

sonnel serving on a military base on foreign soil [2]. Under

this exclusion, the federal government maintained its

complete sovereign immunity, leaving only the individual

practitioner to act as a defendant. Military physicians

serving overseas found themselves individually liable for

the consequence of medical malpractice. Owing to the

phenomenon of a dramatic increase in malpractice suits

during the early 1970s, Congress sought to remedy the

situation with the enactment of the Medical Malpractice

Immunity Act [1].

The purpose of the Medical Malpractice Immunity Act

is to protect federal medical personnel ‘‘from any personal

liability arising out of the performance of their official

medical duties’’ [14] by substituting the federal govern-

ment as defendant. The Medical Malpractice Immunity Act

protects medical personnel in most instances by removing

the claimant’s option to sue the physician individually.

From a public policy standpoint, such protections provide a

substantial incentive for physicians to serve overseas in

areas of the greatest military need, providing care with the

understanding that, in the case of medical negligence, the

federal government would allow itself to be sued in lieu of

the individual.

US State Sovereign Immunity

Based on the idea that the king could do no wrong, the

sovereign immunity doctrine of the modern state is much

like that of the federal government (ie, the state and its

agencies must consent to be sued). In doing so, the gov-

ernment offers itself as a substitute for the individual

defendant. With rare exception, the great majority of states

in the United States have now consented to at least some

liability for torts committed by government employees.

The method by which states expose themselves to lia-

bility varies. Several states have established administrative

agencies to hear and determine claims against the state. In

most instances, nearly complete relief seems possible,

subject only to the dollar limit that may be imposed on the

state’s liability. Other states have agreed to be sued in

limited cases, typically where the state or its agency has

procured liability insurance that will pay any judgment.

The majority of states, however, have abrogated sover-

eign immunity in a substantial or general way [15].

Overall, the liability of these states is as broad as, or

broader than, the liability of the federal government under

the Federal Tort Claims Act. Physician liability exposure in

these states is limited as a result. And while the specter of

individual lawsuit exists, physician fears are often assuaged

in the knowledge that plaintiffs are compelled to choose

one defendant over the other, and often choose govern-

ments over individuals. Specific examples of state

legislative efforts in this area of law follow.

The Virginia Test

To examine the application of the sovereign immunity doc-

trine to medical malpractice, the case of James v Jane is

instructive [8]. At issue was whether or not a full-time

employed physician employed by the Commonwealth of

Virginia was entitled to a sovereign immunity defense when

sued for medical malpractice (ie, the physician as direct agent

of the commonwealth could do no wrong and, therefore, could

not be sued). In this case, the commonwealth did not consent

to be substituted as the defendant, thereby exposing the

individual physicians to major liability concerns. The defen-

dants argued that as full time employees of the

commonwealth, their actions were in the interests of public

policy and, therefore, they should be immune from lawsuit.

In adjudicating this case, the Supreme Court of Virginia

examined four factors: (1) the relationship between the

doctor’s functions and the state’s important governmental

objectives, (2) the extent of the state’s interest and

involvement in the doctor’s function, (3) the degree of

control and direction exercised by the state over the doctor,

and (4) the doctor’s use of judgment and discretion [8].

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In this landmark ruling, the Commonwealth of Virginia

said that the physician’s primary function was to provide

good medical care, which was distinct from the state’s

objective of providing a good medical school institution,

thereby weakening the sovereign immunity defense. Fur-

thermore, the nexus between the state’s general interest in

good quality care and involvement in the specific physi-

cian’s delivery of that care through control and direction

did not coincide sufficiently to warrant an immunity

defense. Finally, the court noted that physicians had sub-

stantial discretion and the ability to use their own judgment

in their delivery of medical care, making them individually

liable for their negligent actions.

The James v James ruling set forth certain legal prin-

ciples that have served as a precedent in later cases dealing

with similar issues. The lesson here is that the legal

application of immunity is driven by the proximity to

which the government employee has to the overall objec-

tives of the state and the degree to which the government

has control over an employee’s actions. Other than an

agreement for defendant substitution as provided for in

statutes similar to the Federal Tort Claims Act, where a

sovereign immunity defense fails, the individual is

responsible for attendant damages.

The Florida Approach

An examination of the Florida approach further illustrates

these principles. The State of Florida and its counties,

municipalities, and other political subdivisions have

waived sovereign immunity in favor of defendant substi-

tution [5]. In cases of torts committed by physicians

employed by the government, Florida’s waiver of sover-

eign immunity allows plaintiffs to recover damages from

the state government. However, the state places caps on

payment of a judgment or claim up to a maximum of

$200,000 per person, or $300,000 per incident [5].

Similarly, Florida law further allows independent con-

tractors to enjoy the benefits of the low limits on damages

and it is specifically designed to allow those providing

medical services to the indigent at county hospitals to be

considered agents of the immune entity [5]. Specifically,

Florida statute § 768.28(10)(f) provides that health care

practitioners who are affiliated with a Florida not-for-profit

college or university that owns or operates an accredited

medical school and have contractually agreed to act as

agents at a teaching hospital to provide health care services

are considered agents of the teaching hospital for purposes

of the statute. The teaching hospital must be owned or

operated by the state, a county, a municipality, a public

health trust, a special taxing district, or any other govern-

mental entity with health care responsibilities. The health

care providers must act within the scope of, and pursuant

to, the contract in order to be considered agents of the

teaching hospital. Conceptually, the Florida approach to

modernizing sovereign immunity mirrors that of Virginia

in the James v Jane ruling.

Discussion

Tort law seeks accountability from parties engaged in

negligent conduct and is intended to provide compensation

to victims of such conduct. Historically, however, indi-

viduals acting under the authority of the government or

other sovereign entity have had almost complete protection

against tort liability claims. This exception has been known

as the doctrine of sovereign immunity. The goal of this

article was to identify (1) the history and development of

sovereign immunity, (2) the lasting impact of the Federal

Tort Claims Act, and (3) its contemporary application to

medical malpractice in the United States. I identified and

examined specific state legal cases and legislative acts.

This review was limited in that it was not a compre-

hensive examination of the doctrine of sovereign immunity

outside of its specific application to medical malpractice

jurisprudence. Also, I selected the judicial cases cited here

in light of their direct contribution to our understanding of

sovereign immunity. Third, many states other than Florida

and Virginia have enacted specific statutes relevant to the

concept of sovereign immunity, and these statutes have

been the subject of litigation at the state level. Rather than

provide a comprehensive legal review, my goal was to

select the best examples that could illustrate the sovereign

immunity doctrine and its effects on practicing clinicians.

Sovereign immunity is a practical, historical doctrine

designed to enable the sovereign (ie, the king or govern-

ment) to do its work without the fear of limitless litigation

related to disputes arising from acts of governance. Applied

in its pure form, it confers absolute immunity from legal

liability upon the sovereign, leaving injured parties without

any recourse or compensation. The modern application of

sovereign immunity reflects an attenuation of the rigid

historical concept. Today, as a broad bar to legal liability

for negligent acts, sovereign immunity most commonly

protects governmental planning actions or policy-making

actions to avoid endless judicial speculation and second-

guessing of the actions of the executive or legislative

branches of government. However, when the government

carries out its policies on an operational level using indi-

viduals acting on behalf of the government, then sovereign

immunity can operate undesirably by subjecting the indi-

vidual employee acting on behalf of the government to

legal liability, and leaving the individual as the only source

from whom damages may be collected.

1368 Suk Clinical Orthopaedics and Related Research 1

123

Recognizing these considerations, the Federal Tort

Claims Act was enacted in part to provide protection for

individuals acting on behalf of the government in lawsuits

involving negligent acts. The Federal Tort Claims Act

provides a general consent by the government to be named

in a lawsuit and provides a mechanism by which the

government may be substituted for the individual defen-

dant. This defendant substitution allows an individual

defendant relief from becoming the sole source for dam-

ages arising out of lawsuits directed at the government. The

majority of states in the United States have enacted similar

statues that provide a general consent to be sued as a

sovereign entity and follow procedural mechanisms that

are modeled after he Federal Tort Claims Act.

In the context of medical malpractice under negligence

law, sovereign immunity and the related concept of

defendant substitution can provide important protections

against individual liability for physicians working on

behalf of a state or federal government. Specifically,

medical personnel working overseas on behalf of the

government, those working in teaching hospitals, or insti-

tutions affiliated with, or owned by, the government may

have relatively more protections against medical negli-

gence lawsuits than private clinicians. However, such

immunity is not impregnable, as the case law from Virginia

illustrates. Rather than conferring blanket immunity upon

employee physicians and always permitting substitution of

the state as the defendant, Virginia law requires an exam-

ination of the relationship between the physician and the

state by considering several factors, including the doctor’s

functions versus governmental objectives, the extent of

state involvement in the doctor’s function and the amount

of control exercised by the state over the doctor, and the

doctor’s use of judgment and discretion. Rather than

assume that government-related employment may mitigate

legal liability in a medical negligence action, physicians

should be aware that liability in such cases turns on a

factual inquiry, as illustrated by the landmark James v Jane

case in Virginia.

The practice of medicine is a complex endeavor, and the

Florida approach is another instructive example in under-

standing how modern sovereign immunity affects medical

malpractice negligence law. While Florida has chosen, for

policy reasons, to allow its local governments to be

substituted as defendants in medical negligence lawsuits,

thereby allowing plaintiffs to recover damages from the

state government, the state has also imposed monetary caps

on such damages. Florida law protects physicians who

contract to provide services at indigent hospitals, medical

schools, colleges and universities, and teaching hospitals.

If Florida physicians are acting in the scope of their con-

tractual duties at a facility owned or operated by the

government, then sovereign immunity can shield them

against medical negligence lawsuits.

In summary, a historical legal doctrine designed to

protect the sovereign and allow effective governance has

undergone considerable evolution in our democratic soci-

ety. In the medical negligence setting, sovereign immunity

can operate to protect the clinician, provided there is a

credible nexus between physician activity and substantial

government interest, and if certain requirements pertaining

to government ownership or interest, as well as the nature

of physician activity are shown. Federal reform led to the

evolution of the sovereign immunity doctrine in 1946;

since then, many states have adopted statutes designed to

facilitate medical care, teaching, volunteer service, staffing

of indigent hospitals, and medical service overseas,

including during times of military operation. For clinicians

desiring more precise information on this subject, an

examination of their respective state laws concerning

sovereign immunity to medical providers will be

instructive.

Acknowledgments I thank B. Sonny Bal, MD JD MBA for orga- nizing the symposium and for his encouragement and editing in

writing this article. Also, I gratefully acknowledge the contribution of

Steve Friedman, Senior Editor at the University of Missouri,

Department of Orthopaedic Surgery.

References

1. Defense of Certain Suits Arising out of Medical Malpractice, 10

USC §1089 (1988).

2. Exceptions, 28 USC §2680a-n (1982).

3. Federal Tort Claims Act, 28 USCA §2674 (1982).

4. Feres v United States, 340 US 135, 139 (1950). 5. Fla Stat Ann § 768.28 (West 1997 & Supp. 1998).

6. Henderson v Blumink, 511 F22d 399, 403-404 (DC Cir 1974). 7. Indian Towing Co. v United States, 350 US 61, 76 SCt 122

(1955).

8. James v. Jane, 221 Va. 43, 282 SE2d 864 (1981). 9. Jury Trial in Actions Against United States, 28 USC §2402

(1982).

10. Keeton WP, Dobbs DB, Keeton RE, Owen DG. Prosser and Keeton on the Law of Torts 5th ed. St. Paul, MN; West; 1984.

11. Morton v United States, 2287 F2d 431 (DC Cir 1955). 12. Osborn v Bank of the United States, 22 US 738, 6 LEd 204

(1824).

13. Ross v United States, 640 F2d 511 (5th Cir 1981). 14. S. Rep. No. 1264, 94th Cong, 2nd Sess 4 (1976) 4440–4459.

15. Sullivan v United States, 129 F Supp 713 (ND Ill. 1955). 16. Supchack v United States, 365 F2d 844 (3rd Cir 1966). 17. Time for Commencing Action Against United States, 28 USC

§2401b (1982).

18. United States as Defendant, 28 USC §1346b (1982).

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