Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ. 

MARGARET L. ATKINSON 

 OPINION BY 

v. Record No. 000934 JUSTICE LAWRENCE L. KOONTZ, JR. 

 March 2, 2001 

ROMAN SACHNO, JR., M.D. 

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON 

Humes J. Franklin, Jr., Judge 

In this medical malpractice case, we consider whether the 

trial court properly held that a physician providing consultant 

services for an agency of the Commonwealth was not an 

independent contractor and was entitled to the protection of the 

doctrine of sovereign immunity from liability for his alleged 

acts of negligence. 

BACKGROUND 

The material facts are not in dispute. Dr. Roman Sachno, 

Jr., is a licensed physician specializing in internal medicine 

in a private practice in Staunton, Virginia. Since 1972, Dr. 

Sachno has contracted with Disability Determination Services 

(DDS), a division of the Virginia Department of Vocational 

Rehabilitation, to serve as a consultant physician. Pursuant to 

this contract, Dr. Sachno performs various examinations of 

claimants for DDS, which is responsible for making disability 

determinations for claimants applying for Social Security and 

Supplemental Security Income disability benefits. 
When DDS determines that the available medical evidence 

needed to make a disability determination is insufficient, it 

refers the claimant to a consultant physician to undergo a 

special “consultative examination” to obtain the needed medical 

information. The contract provides that the specific “type of 

examination (complete or limited) and/or test(s) purchased

depends upon the specific additional evidence needed for 

adjudication after DDS has obtained all available medical 

evidence of record.” (Emphasis added). DDS does not provide 

treatment or therapeutic services. Thus, the consultant 

physicians are utilized by DDS for the limited purpose of 

obtaining additional medical evidence to assist DDS in 

determining a claimant’s eligibility for disability benefits. 

Pursuant to the detailed consultant procedures contained in 

the contract, DDS schedules appointments with Dr. Sachno for 

claimants to undergo the consultative examinations. Although 

Dr. Sachno is not required to accept any referrals from DDS, he 

has agreed to perform two or three of these examinations per 

week. After an examination is scheduled, DDS sends an 

authorization letter to Dr. Sachno detailing the examination 

and/or tests to be conducted by him. If Dr. Sachno determines 

that further diagnostic tests are necessary, he is required to 

obtain authorization from DDS before performing such tests. 

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Without specific authorization from DDS, he is not compensated 

for conducting additional tests. 

In addition to the authorization letter, DDS provides Dr. 

Sachno with “consultative examination requirements” which set 

forth the various protocols and tests that must be performed in 

specific examinations. Dr. Sachno is instructed to examine the 

claimant in accordance with the protocols applicable to specific 

examinations referred to in the authorization letter. The 

protocols and designated tests merely outline what additional 

evidence is needed to adjudicate the disability claim. For 

example, the protocols and examination outline for the 

assessment of a claimant's respiratory status requires the 

physician to complete a detailed history and physical 

examination of the patient, including a report of (1) height and 

weight, without shoes; (2) ancillary studies as indicated on the 

authorization; (3) diagnosis; (4) treatment and response; and 

(5) prognosis. The consultant physician is free to delegate 

certain parts of the examination to qualified support staff. 

Dr. Sachno examines claimants referred by DDS in his 

private office, using his own medical equipment. DDS does not 

assist, directly or indirectly, Dr. Sachno in carrying out these 

examinations. After a particular examination is completed, Dr. 

Sachno submits a report detailing the results of the examination 

to DDS. These reports are considered the property of the Social 

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Security Administration. Dr. Sachno then bills DDS for each 

examination that he has completed. He is paid a fixed fee by 

the Commonwealth for the examination of each claimant referred 

to him by DDS under a maximum fee schedule provided by DDS. 

Claimants do not pay a fee to Dr. Sachno. No taxes or other 

withholdings are deducted from the checks Dr. Sachno receives 

from the Commonwealth for his services. Dr. Sachno does not 

receive any benefits, such as health insurance, and he will not 

receive retirement benefits from the Commonwealth as a result of 

his contract with DDS. 

It was in the capacity as a consultant physician that Dr. 

Sachno examined Margaret L. Atkinson, the plaintiff below. 

Atkinson had applied for Social Security disability benefits, 

and DDS had referred her to Dr. Sachno in order to verify her 

inability to perform work-related activities. Dr. Sachno was 

requested to evaluate Atkinson’s respiratory and arthritic 

impairments. Dr. Sachno’s examination of Atkinson included, 

among other things, ordering a chest X-ray. This X-ray 

reflected a possible 12mm nodule which the radiologist reported 

as not ruling out “an active process including metastatic 

disease.” Dr. Sachno did not advise Atkinson regarding the 

results of this X-ray and the contents of the accompanying 

report that he received from the radiologist. Approximately 

five months later, Atkinson was diagnosed with lung cancer. 

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Thereafter, Atkinson filed a motion for judgment against Dr. 

Sachno for medical malpractice alleging that he negligently 

failed to advise her of the results of the chest X-ray. Dr. 

Sachno responded by filing a plea of sovereign immunity. 

Following the receipt of briefs, the trial court conducted 

a hearing on the plea of sovereign immunity. Atkinson argued 

that Dr. Sachno, based upon the undisputed facts, is an 

independent contractor and not an employee of the Commonwealth 

who may be entitled to the protection of sovereign immunity. 

The trial court initially ruled that “[i]ndependent contractors 

are not entitled to the protection of sovereign immunity” and 

then proceeded to determine whether Dr. Sachno was an employee 

of the Commonwealth or an independent contractor. Relying 

primarily upon the four-part test for determining whether a 

master and servant relationship exists that this Court approved 

in Hadeed v. Medic-24, Ltd., 237 Va. 277, 288, 377 S.E.2d 589, 

594-95 (1989), the trial court ruled, as a matter of law, that 

Dr. Sachno is not an independent contractor. 

 After deciding that Dr. Sachno was not an independent 

contractor, and by implication that he is therefore an employee 

of the Commonwealth, the trial court applied the test 

established in James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 

869 (1980), to determine whether Dr. Sachno is entitled to the 

protection of sovereign immunity. The trial court concluded 

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that Dr. Sachno is entitled to sovereign immunity and sustained 

his plea. By final order entered on February 15, 2000, the 

trial court dismissed Atkinson’s claim with prejudice. We 

awarded Atkinson this appeal. 

DISCUSSION 

The doctrine of sovereign immunity is indeed alive and well 

in Virginia. City of Virginia Beach v. Carmichael Development 

Company, 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000); Messina 

v. Burden, 228 Va. 301, 307, 321 S.E.2d 657, 660 (1984). 

Furthermore, in order for the purposes of the doctrine to be 

fully realized, the immunity afforded by the doctrine cannot be 

limited to the sovereign only. The cloak of immunity must be 

extended to “some people who help run the government . . . for 

the state can only act through individuals.” Messina, 228 Va. 

at 308, 321 S.E.2d at 661. 

The determination that a particular individual is entitled 

to the protection of sovereign immunity frequently involves 

unique factual considerations when that individual is a 

physician. See, e.g., Benjamin v. University Internal Medicine 

Foundation, 254 Va. 400, 403, 492 S.E.2d 651, 652 (1997); Lee v. 

Bourgeois, 252 Va. 328, 331, 477 S.E.2d 495, 497 (1996). 

Essentially this is so because while the Commonwealth may have 

an interest and involvement in the function performed by the 

physician to accomplish a governmental objective, the means and 

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methods used by the physician to exercise his or her required 

professional skill and judgment with regard to patients is not 

readily subject to the control and direction of others. That 

control, or lack of it, is the most significant factor in such 

cases in resolving issues of sovereign immunity and respondeat 

superior, which are, however, separate and distinct legal 

concepts. 

In James, we refused to grant immunity to a physician who 

was a full-time member of the faculty of a Commonwealth medical 

school. 221 Va. at 55, 282 S.E.2d at 870. In that case, we 

established a four-part test to determine whether a physician 

who was an employee of the Commonwealth was entitled to the 

protection of sovereign immunity. Id. at 53, 282 S.E.2d at 869. 

Subsequently, we applied that test in Lohr v. Larsen, 246 Va. 

81, 85, 431 S.E.2d 642, 644 (1993). Application of the James

test, however, presupposes that the physician seeking the 

protection of sovereign immunity is an employee or agent of the 

Commonwealth. In other words, the James test is not applicable 

if the individual is an independent contractor and, thus, not an 

employee or agent of the Commonwealth.∗ Contrary to Dr. Sachno’s 

 ∗

In McDonald v. Hampton Training School for Nurses, 254 Va. 

79, 486 S.E.2d 299 (1997), we observed that the trial court 

incorrectly relied upon the sovereign immunity cases of James

and Messina in concluding that a physician was an independent 

contractor. McDonald, 254 Va. at 81 n.1, 486 S.E.2d at 301 n.1. 

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assertions in this case, the trial court properly ruled that 

independent contractors are not entitled to the protection of 

sovereign immunity. So that no doubt will exist on that issue, 

we expressly hold that while some employees or agents of the 

Commonwealth may be entitled to the protection of sovereign 

immunity, all independent contractors are excluded from that 

protection. 

Accordingly, the dispositive question in this appeal is 

whether Dr. Sachno is an employee or agent of the Commonwealth, 

or is an independent contractor. We defined an independent 

contractor in Epperson v. De Jarnette, 164 Va. 482, 486, 180 

S.E. 412, 413 (1935). There we stated that an independent 

contractor is 

[a] person who is employed to do a piece of work 

without restriction as to the means to be employed, and 

who employs his own labor and undertakes to do the work 

according to his own ideas, or in accordance with plans 

furnished by the person for whom the work is done, to 

whom the owner looks only for results. 

Id.

Whether a person is an independent contractor or an 

employee is generally a question of fact for a jury; however, 

when “the evidence admits of but one conclusion, the question is 

 

We specifically rejected the applicability of James and Messina

to issues regarding respondeat superior, thus limiting their 

application to sovereign immunity issues. Id.

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one of law.” Hadeed, 237 Va. at 288, 377 S.E.2d at 594. This 

case presents such a question of law. 

We recognize that there are abundant tests and criteria 

that can be used to determine whether the relationship between 

the individual and the Commonwealth is that of an independent 

contractor or an employee. See Ross v. Schneider, 181 Va. 931, 

939, 27 S.E.2d 154, 157 (1943)(noting numerous criteria to 

determine relationship); The Texas Co. v. Zeigler, 177 Va. 557, 

566, 14 S.E.2d 704, 707 (1941)(recognizing that many potential 

tests exist for determining whether a person should be 

classified as an independent contractor). A survey of the many 

tests and cases “makes it clear that the individual 

circumstances of each case play an important part in answering 

the query.” The Texas Co., 177 Va. at 566, 14 S.E.2d at 707. 

In Hadeed, a case involving the issue of a physician’s 

status as an employee or independent contractor, we used four 

factors to resolve that issue: (1) selection and engagement; 

(2) payment of compensation; (3) power of dismissal; and (4) 

power to control the work of the individual. It is well 

established that the fourth factor, the power of control, is 

determinative. 237 Va. at 288, 377 S.E.2d at 594-95. We will 

apply the Hadeed analysis here. 

The following facts are pertinent to that analysis. Dr. 

Sachno conducts his full-time practice of internal medicine in 

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his private office, using his own equipment, and employing his 

own support staff. The number of examinations he may perform in 

a given week for DDS is not substantial when compared to the 

volume of his regular patients. Dr. Sachno is not obligated to 

accept any referrals from DDS. He is paid a fixed fee for the 

examination of each claimant referred to him by DDS. No 

withholdings of any form are deducted from his compensation 

received from the Commonwealth for conducting these 

examinations. Dr. Sachno considers himself to be “an 

independent physician that is asked to do certain work for the 

State.” These facts weigh heavily in support of the conclusion 

that Dr. Sachno is an independent contractor and not an employee 

or agent of the Commonwealth. However, consideration of the 

fourth factor, the power of control, established in Hadeed

compels that conclusion in this case. 

The numerous regulations, protocols, and procedures under 

which Dr. Sachno must perform the various examinations and tests 

sought by DDS merely ensure that the specific and objective 

medical evidence needed by DDS is obtained. Indeed, the 

contract between Dr. Sachno and DDS provides that the type of 

examination and/or tests “purchased” by DDS depends upon the 

specific additional medical evidence needed by DDS to resolve a 

particular disability claim. In this context, Dr. Sachno 

essentially provides a product to DDS: a report detailing the 

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results of the requested examinations and/or tests, and 

providing objective medical evidence, if any, of a claimed 

impairment. Accordingly, the various regulations, protocols, 

and procedures under which Dr. Sachno produces that report, or 

product, do not constitute control by DDS of the means and 

methods by which he performs the examinations and tests. 

Rather, Dr. Sachno exercises his professional judgment in making 

the medical assessments of a particular claimant’s condition in 

order to accurately produce the report requested by DDS. See

McDonald, 254 Va. at 86, 486 S.E.2d at 303 (exercise of 

professional judgment by a physician is a factor in determining 

extent of control). 

Finally, that Dr. Sachno is required to obtain additional 

authorization before performing any diagnostic test not 

specifically listed in the authorization letter is the result of 

pragmatic and monetary concerns, and is not evidence that DDS 

controls, or has the right to control, the means and methods by 

which Dr. Sachno performs the examinations and tests that are 

authorized. The DDS justifies this requirement on the basis 

that frequently the information obtainable from additional tests 

is already in a claimant’s file and, thus, additional tests 

would cause an unnecessary duplication of expense. 

“It is only by consideration of all the facts 

pertaining to the relationship in any case, including 

the provisions of the contract, the actual conduct of 

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the parties, and the conditions of the business in 

which they are engaged, that it can be determined 

whether the [individual] is endowed with that control 

over his own methods and means of doing the work which 

is the test of an independent contractor.” 

The Texas Co., 177 Va. at 568, 14 S.E.2d at 708 (quoting Gulf 

Refining Co. v. Brown, 93 F.2d 870, 873 (4th Cir. 1938)). 

Because the evidence in this case “admits of but one 

conclusion” under Hadeed, we hold, as a matter of law, that Dr. 

Sachno is an independent contractor, and not an employee or 

agent of the Commonwealth. We further hold that because Dr. 

Sachno is an independent contractor he is not entitled to the 

protection of sovereign immunity with regard to Atkinson’s claim 

against him for medical malpractice. 

CONCLUSION 

For the reasons stated above, the trial court erred in 

sustaining Dr. Sachno’s plea of sovereign immunity. 

Accordingly, the final order dismissing the case will be 

reversed, and the case remanded to the trial court for further 

proceedings consistent with the views expressed in this opinion. 

Reversed and remanded. 

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