Public Health Examples
The exceptions to state tort liability have resulted in a vast body of unpredictable case law amongst the states, so no general rule applies everywhere. Situations where immunity against tort liability was extended to health officials:
Department of Health officials in Vermont received immunity for negligently issuing a lodging license, based on a vendor’s promise to bring a septic system into compliance with public health regulations. The decision to issue the license was deemed discretionary in nature. Johnson v. State, 682 A.2d 961 (1996).
A court ruled that Georgia’s sovereign immunity extended to its counties, and that this immunity barred an action to recover damages from the county health department for an allegedly negligent reading of a chest X-ray. The X-ray was taken when the plaintiff utilized the health department's free tuberculosis screening clinic. The screening failed to detect a tumor in the lung that should have been discovered, but the plaintiff’s action was dismissed. James v. Richard County Health Dept., 309 S.E.2d 411 (1983).
A licensed, board-certified physician, engaged as a fellow in medical research and training program conducted by a state hospital, was held immune from liability for the medical malpractice he allegedly committed against a patient participating in the program. Gargiulo v. Ohar, 387 S.E.2d 787 (Va. 1990). An Alabama court, on similar facts, found that teaching physicians at an Alabama state medical school were not covered by discretionary immunity.[ Ex parte Cranman, 792 So.2d 392 (Ala. 2000) ]
A state-employed public health physician in Virginia was entitled to immunity from liability for his alleged negligence in failing to order a mammogram and needle biopsy, after detecting a lump in a patient's breast. The physician was assigned by the state to provide medical services to the public health clinic that provided care to citizens who could not afford to pay for private medical care. Lohr v. Larsen, 246 Va. 81 (Va. 1993).
Contrast these cases to the recent Louisiana case, Gregor v. Argenot Great C. Ins. Co., 851 So. 2d 959 (La. 2003). The Department of Health and Hospitals was held 50% liable for the wrongful death of a restaurant patron who died from eating raw oysters. The restaurant was obligated by law to post signs warning of the risks associated with consuming raw oysters. The restaurant had a sign posted at the bar where most oyster sales occurred, but had no sign in the dining room where the decedent consumed the oysters. The Department was not extended immunity and was held partially liable for not properly enforcing the law in its inspection of the restaurant. According to the court, the law left no room for policymaking or discretion.
The consistent rule in this area of law is that if regulations exist, a state employee has a duty to comply, or risk subjecting the state to liability under the state’s TCA for any resulting damages from the failure to comply. If the state applies a governmental- proprietary distinction, most public health activities will be covered by immunity because they are governmental in nature.