State law liability is controlled by the state's constitution and the state's TCA, which differ among
states. The basic principle is that state public health officials have official immunity when they are
making policy decisions or performing discretionary acts, which are those that require the exercise
of professional judgment. Official immunity is determined by the nature of the function and can
extend to every employee of the department, although the law is not so clear that tasks done by
private contractors have the same immunity as those done by government employees. Inspecting a
restaurant and deciding whether it should be cited is a discretionary function. Discretionary
immunity applies unless a plaintiff can show that a reasonable person in the official's position would
have known that the action was unambiguously beyond the scope of the official's legal authority or
was otherwise illegal. Ministerial tasks are those that do not require discretion because they either
follow a predetermined plan and cannot be changed, such as following a health department
checklist regulation, or they do not involve any special expertise related to public health, such as
driving a car. Plaintiffs may bring ordinary negligence claims if they are injured through a ministerial
function. For example, plaintiffs were allowed to recover when the government failed to follow its
own regulations for approving a polio vaccine.[Berkovitz by Berkovitz v US, 486 US 531 (1988)]
Most states divide public health functions into government or proprietary functions. There is official
immunity for discretionary governmental functions, but not for proprietary functions. These
definitions vary greatly between states, with some states holding that almost all public health
functions are governmental and others finding that a substantial group are proprietary. Traditional
public health services such as restaurant inspection, animal control, health and safety permits and
licenses, sanitation, vital statistics, and related functions are considered governmental in almost all
states. Many states do not consider personal medical services, such as prenatal care clinics and
general indigent health care clinics, to be governmental functions and apply ordinary medical
malpractice law to them, although some states do include these under governmental immunity.
However, if the medical service is related to protecting the public, rather than just helping the
individual, it will be governmental. Thus, treatment and testing for tuberculosis would be a
governmental function.
If the function is proprietary or ministerial, then the state TCA will determine the extent of liability
and when the official is personally liable. State TCAs have differing caps on liability, varying
between $100,000 and $1,000,000, and they generally prevent the recovery of punitive damages.
TCAs provide that the state will defend the lawsuit and pay the claim if the official is sued
personally The TCA does not apply if the claim is for intentional wrongdoing that is outside the
official's duties, such as sexual assault charges or criminal conduct. The TCA may not cover
nonemployees such as contract physicians in clinics. These individuals may need to have private
insurance to defend and pay claims brought against them.
