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Palate Surgery Failure; Incorrect Recovery Position; Immunity


A man underwent a complex and lengthy surgery lasting over 12 hours to reconstruct his hard and soft rear palates, i.e., the back of his mouth. The surgery was performed at a state university’s teaching hospital. The man’s surgery included making an incision in his neck to permit the insertion of a ventilator tube. Following the surgery, the man was taken to the Surgical Trauma Intensive Care Unit (STICU) for recovery.

 

Following this type of surgery, it is important to keep the patient’s head stable to enable blood to flow. The man’s surgeon placed an order in the “order section” of his chart which stated, among other things: “Please do not apply any pressure to the right neck area in the vicinity of the incision.” The doctors overseeing the man’s care did not write any orders specifically governing the position of his head or neck; i.e., they did not order the nurses to maintain his head in a neutral or midline position. Nurses were required to exercise judgment and discretion in determining how to position the patient’s head and how to avoid pressure in the vicinity of the neck incision. A surgeon at the hospital testified that he would rely on the skill and expertise of the nurse to position the patient’s head appropriately following surgery. Progress notes for the day after his surgery stated, “Keep head in neutral position,” and “[n]o pressure to right side of face/neck.” Nurses are not required to read progress notes. Progress notes are not the same as orders.

 

During the morning five days after the surgery, the man was found with his neck tilted to the right, a position that would cause venous compromise. The staff on the floor was instructed to avoid this practice. That afternoon, the man’s attending physician found him again in that position. His face and neck were massively swollen. As a consequence, he had to undergo further surgery in an effort to salvage the palate reconstruction surgery. Those efforts were not successful and reconstruction surgery failed.

 

The man sued the STICU registered nurse (RN) for medical malpractice. The complaint alleged the STICU RN was negligent in failing to keep the man’s head stable to enable blood to flow. Specifically, the complaint alleged the STICU RN failed to monitor the position of the man’s head and failed to avoid pressure near the incision.

 

The STICU RN filed a motion to dismiss arguing the claim was barred because she had sovereign immunity from suit. Courts apply a non-exclusive four-factor test to determine whether a plea of sovereign immunity should be sustained. Virginia courts consider (1) the function the employee was performing, (2) the state’s interest and involvement in that function, (3) whether the act performed by the employee involved the use of judgment and discretion, and (4) the degree of control and direction exercised by the state over the employee. Following the presentation of evidence, the Circuit Court of the City of Richmond dismissed the man’s complaint because the STICU RN at the state run medical center was entitled to sovereign immunity.

 

The Supreme Court of Virginia affirmed. The court held that the first two factors, the function the employee was performing and the state’s interest and involvement in that function, support a finding of sovereign immunity; the STICU RN’s use of judgment and discretion supported a finding of sovereign immunity; and the state’s control and direction over STICU RN supported a finding of sovereign immunity.

 

The first two factors, the function the STICU RN was performing and the state’s interest and involvement in that function, support a finding of sovereign immunity. By providing specialized health services not widely available in Virginia through the STICU, the STICU RN was serving an essential governmental function. The court agreed with the trial court’s assessment that the STICU RN had a great depth of expertise in offering this kind of specialized care and her actions were essential to carrying out the express interest of the Commonwealth as embodied in Virginia Code § 23-50.16:2(4). Virginia Code § 23-50.16:2(4) provides that the essential missions of this particular state university’s teaching hospital include serving as a “general hospital and health care facility” and “provid[ing] high quality patient care and other specialized health services not widely available in the Commonwealth,” and that these “missions constitute essential governmental functions.

 

The STICU RN’s use of judgment and discretion supported a finding of sovereign immunity. The court found that the evidence did not support the man’s claim that the STICU RN was performing a ministerial act. The evidence established that the STICU RN had to exercise her discretion to determine how to carry out the doctor’s orders to avoid pressure in the vicinity of the man’s neck incision and to keep his head in a neutral position. The specific omissions alleged, the STICU RN’s failure to monitor the position of the man’s head and failure to avoid pressure near the incision, cannot be viewed in artificial isolation. The STICU RN’s sphere of responsibility extended beyond simply positioning the man and avoiding pressure near the neck incision. She had to prioritize and address many tasks. According to the evidence, she was required to provide “minute to minute” care by, among other things, monitoring the man’s drugs, checking his vital signs, and consulting with residents. The STICU RN was exercising discretion in caring for the man. The court concluded that the third factor, whether the act performed by the employee involved the use of judgment and discretion, while not determinative, supported a finding of sovereign immunity.

 

The state’s control and direction over the STICU RN supported a finding of sovereign immunity. The STICU RN’s discretion was limited by the physician’s orders. The STICU RN did not have the option to refuse to accept a particular patient. The trial court found that the hospital had a high degree of control over the STICU RN. She was supervised by more senior nursing staff. She was subject to the hospital’s policies. The state university’s teaching hospital paid her wages and determined her schedule and whether she could take leave.

 

The Supreme Court of Virginia affirmed the trial court’s dismissal the man’s complaint because a registered nurse in the Surgical Trauma Intensive Care Unit at the state run medical center was entitled to sovereign immunity.

 

See: Pike v. Hagaman, 2016 WL 3097727 (Va., June 2, 2016) (not designated for publication). 

 

 

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