Present: All the Justices 

TRINICA ANN LEE, AN INFANT, WHO 

SUES BY EARTHA K. LEE, HER MOTHER 

AND NEXT FRIEND 

v. Record No. 952317 OPINION BY JUSTICE ELIZABETH B. LACY 

 November 1, 1996 

F. JOHN BOURGEOIS, M.D. 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Jay T. Swett, Judge 

 In this case we consider whether an attending physician 

employed by the state is entitled to sovereign immunity for 

alleged acts of simple negligence. 

 Eartha K. Lee was admitted to the high risk pregnancy 

service at the University of Virginia Hospital (University 

Hospital) on September 23, 1985, when she was approximately 28 

weeks pregnant. Dr. Siva Thiagarajah, Lee's attending physician, 

prescribed a management plan for her medical treatment. Dr. 

Thiagarajah's plan was to stop preterm labor with drugs and to 

monitor Lee for infection. When Dr. Thiagarajah went off duty on 

the afternoon of September 27, 1985, Dr. Francis John Bourgeois 

took over as Lee's attending physician. 

 Around five o'clock on the evening of September 27, 1985, 

Dr. Julie L. Blommel, a first year resident, was notified by 

nurses that Lee was having contractions. Dr. Blommel visited Lee 

45 minutes later and determined that she needed to be moved 

across the hall to the labor and delivery room for assessment of 

whether she was in labor. Around 6:45 p.m., Dr. John Donnelly, 

the chief resident of the high risk pregnancy service, performed 

a pelvic examination on Lee. Although delivery by cesarean 
section was the preferred form of delivery for Lee's condition, 

Lee's labor had progressed too far and a cesarean section was no 

longer a viable option. Therefore, Dr. Donnelly performed an 

emergency vaginal delivery. The baby was in a breech position 

and during delivery its head was entrapped when the cervix 

constricted upon the baby's neck and head after the delivery of 

the legs. In the course of the delivery, Dr. Donnelly applied 

traction. The baby's spinal cord was traumatically injured and 

she is permanently paralyzed. 

 The infant, Trinica Ann Lee, filed a motion for judgment by 

her mother and next friend, Lee, naming the Commonwealth and 

seven doctors, including Drs. Thiagarajah and Bourgeois as 

defendants, alleging that they negligently provided medical 

treatment to her. The plaintiff nonsuited five of the doctors 

and the Commonwealth. One of the remaining doctors, Dr. 

Bourgeois, filed a plea of sovereign immunity and a motion for 

summary judgment based on that plea. The trial court held that 

Dr. Bourgeois was entitled to sovereign immunity and dismissed 

Dr. Bourgeois from the case with prejudice. Dr. Thiagarajah was 

subsequently nonsuited. We awarded the plaintiff an appeal to 

review the trial court's determination that Dr. Bourgeois was 

entitled to sovereign immunity. 

 In determining whether a state employee is entitled to 

sovereign immunity in an action alleging acts of simple 

negligence, we apply the four-part test set out in James v. Jane, 

221 Va. 43, 267 S.E.2d 108 (1980), and Messina v. Burden, 228 Va. 

301, 321 S.E.2d 657 (1984). The four factors are: the nature of 
the function performed by the employee, the extent of the state's 

interest and involvement in that function, the degree of control 

exercised by the state over the employee, and whether the alleged 

negligent act involved the use of judgment and discretion. Id. 

at 313, 321 S.E.2d at 663. 

 In this case, the trial court focused its analysis on the 

first two factors, the function of the employee and the state's 

interest in that function. These two factors have previously 

been addressed in the context of state-employed physicians. In 

James v. Jane, we determined that three physicians employed by 

the Commonwealth as faculty members at the Medical School of the 

University of Virginia were not entitled to sovereign immunity in 

actions for negligence based on allegations that they failed to 

exercise reasonable care in attending a patient. 221 Va. at 55, 

267 S.E.2d at 114. The rationale of the decision was two-fold. 

First, the Commonwealth's paramount interest was that the 

University of Virginia operate a good medical school staffed with 

competent professors. The Commonwealth's interest in quality 

patient care was the same whether that patient was being treated 

in a public teaching hospital or in a private medical 

institution. Since the actions complained of related to the 

provision of patient care, not the educational function of the 

faculty members, the state's interest was slight. Second, a 

physician's exercise of professional skill and judgment in 

treating a patient is not subject to the control of the 

Commonwealth. 221 Va. at 54-55, 267 S.E.2d at 114; Lohr v. 

Larsen, 246 Va. 81, 85-86, 431 S.E.2d 642, 644-45 (1993). 
 Since James v. Jane, we have considered other cases 

involving allegations of negligence against physicians who were 

employed by the Commonwealth. In Gargiulo v. Ohar, 239 Va. 209, 

387 S.E.2d 787 (1990), a board-certified physician was employed 

by a state hospital as a fellow in a medical research and 

training program run by the hospital. We held the employee was 

entitled to immunity in an action alleging that she negligently 

treated a patient participating in the research program. In 

discussing the nature of the employee's function, we concluded 

that the alleged negligent acts were performed by the employee in 

her capacity as a student which was a function "essential to 

achievement of the Commonwealth's goal . . . of training and 

maintaining a pool of specialists skilled in a particular 

discipline." Id. at 213, 387 S.E.2d at 790. 

 Subsequently in Lohr, we concluded that a physician treating 

a patient for breast cancer in a public health clinic was 

entitled to sovereign immunity for alleged acts of simple 

negligence. Analyzing the function of the physician employee and 

the state's interest, we concluded that treating the patient was 

"an essential part of the clinic's delivery of its health care 

services" and that the state had a substantial interest in 

providing quality medical care for citizens in certain areas of 

the state who are economically unable to secure such services 

from the private sector. 246 Va. at 86, 431 S.E.2d at 644-45. 

 In analyzing the employee's function and the Commonwealth's 

interest and involvement in that function in this case, the trial 

court found that Dr. Bourgeois' function at the time of the 
alleged negligent acts was to be "available for consultation by 

any member of the obstetrical house staff." Because no member of 

the house staff consulted Dr. Bourgeois concerning Lee's 

pregnancy and delivery and he had no other personal contact with 

her, the trial court concluded that Dr. Bourgeois' function was 

that of "a teacher and consultant to residents, as opposed to a 

treating physician administering medical care to patients." The 

trial court held that in this role Dr. Bourgeois was furthering 

the paramount interest of the University Hospital as set out in 

James v. Jane, that is, operating a good medical school staffed 

with competent professors. 

 Our review of the record, however, indicates that Dr. 

Bourgeois' function at the time of the alleged negligent acts was 

more than simply being available to consult with residents or 

other members of the obstetrical staff. In his role as attending 

physician, his primary function related to the treatment of 

patients and is analogous to that of Dr. Hakala, the attending 

physician in James v. Jane. We conclude that Dr. Bourgeois, like 

Dr. Hakala, is not entitled to sovereign immunity under the 

circumstances of this case. 

 The physicians at the University Hospital are divided into 

two categories. The "house staff" category includes interns, 

residents, and fellows. The house staff does not have hospital 

admitting privileges. The "medical staff" category is comprised 

of fully-licensed physicians who have completed their training 

and are full-time faculty members in the Department of the School 

of Medicine. The medical staff supervises the house staff. 
 The University Hospital requires that all patients in the 

hospital be assigned an attending physician who is a member of 

the medical staff. The attending physician is responsible for 

determining a treatment plan for the patient and for making 

decisions regarding the medical care of the patient. The 

attending physician is also responsible for supervising the 

patient care administered by the house staff. The house staff 

may not undertake certain procedures, such as performing a 

delivery by cesarean section, without consulting the attending 

physician. 

 If the attending physician for a patient goes off duty, 

another member of the medical staff of the hospital must be 

designated as the attending physician for that patient. The 

subsequent attending physician has the same responsibilities 

regarding the medical care of the patient as the previous 

attending physician.*

 In this case, Lee arrived at the emergency room with 

pregnancy complications. Dr. Allen Hogge admitted her to the 

high risk pregnancy service and later Dr. Thiagarajah became her 

attending physician. Both Dr. Hogge and Dr. Thiagarajah were 

members of the medical staff and the Maternal Fetal Medicine 

division of the Department of Obstetrics and Gynecology at the 

University Medical School. Dr. Thiagarajah devised a treatment 

 

 *The trial court and Dr. Bourgeois refer to the doctor's 

role as an "on call attending" or an "on call faculty member." 

 These terms are not defined in the record and the record 

speaks only of an "attending physician" in terms of the 

requirements for patient care. 
management plan for Lee. Dr. Thiagarajah and various interns and 

residents, under Dr. Thiagarajah's supervision and direction, 

attended to the care of Lee. 

 On September 27th, Dr. Bourgeois became the attending 

physician for Dr. Thiagarajah's patients. As part of the 

transfer of patients from one attending physician to another, Dr. 

Thiagarajah reviewed the condition and status of his patients 

with Dr. Bourgeois. According to Dr. Bourgeois, the patients 

were not identified by name, but their conditions were summarized 

in general categories. In accepting this assignment as attending 

physician, Dr. Bourgeois testified that he assumed the same 

responsibilities for Lee's care as those borne by Dr. 

Thiagarajah. He acknowledged that, as attending physician, he 

became responsible for making the final decisions on Lee's care. 

 He could examine Lee, review her chart, change Dr. Thiagarajah's 

treatment plan, and alter instructions to the residents regarding 

notification of labor or the method of delivery. As attending 

physician, Dr. Bourgeois was also obligated to respond to 

inquires from the residents regarding the care of the patients. 

 As the trial court noted, the role of the attending 

physician includes teaching responsibilities, particularly when 

responding to questions raised by residents or other members of 

the house staff. However, the hospital policy requiring an 

attending physician for each patient at all times is not 

primarily directed to the goal of good teaching practices, but to 

insuring that patients receive competent care. Furthermore, the 

General Assembly has required that all persons in the category of 
house staff be responsible and accountable to a licensed member 

of the hospital staff. Code §§ 54.1-2960, -2961. The care of 

the patient could not be, and was not, left solely to the house 

staff. Thus, the function of Dr. Bourgeois as attending 

physician was directly related to assuring that the patient, in 

this case Lee, received the proper care, whether delivered 

directly by him or indirectly through a member of the house 

staff. 

 The trial court and Dr. Bourgeois put significant emphasis 

on the fact that Dr. Bourgeois did not engage in any direct 

treatment of Lee and was not consulted by a member of the house 

staff regarding her treatment. The argument that the absence of 

action by the attending physician or the failure of a resident to 

call on the attending physician makes the attending physician's 

function solely a teaching function is not persuasive. Dr. 

Bourgeois accepted Lee as a patient for whose care he was 

responsible when he agreed to replace Dr. Thiagarajah as Lee's 

attending physician. Dr. Bourgeois used his professional medical 

judgment when he determined that the medical treatment plan 

devised for Lee by Dr. Thiagarajah was proper and would remain in 

place during Dr. Bourgeois' time as attending physician. As 

noted above, Dr. Bourgeois also used his professional judgment 

regarding Lee's treatment when he decided that he did not need to 

examine her or her charts or engage in any other clinical 

evaluation of her at the time he became her attending physician. 

 The responsibility of an attending physician and the decisions 

incumbent upon one in that position are directly aimed at 
insuring quality care for the patient. While the acts which Dr. 

Bourgeois did, or did not do, may be relevant to issues of 

liability, his acts or omissions are not dispositive on the issue 

of sovereign immunity in this case. 

 The only difference between Dr. Bourgeois and Dr. Hakala, an 

attending physician in James v. Jane, is that Dr. Hakala was 

consulted as to the need for surgery and was present in the room 

while the surgery was performed by another. 221 Va. at 49, 267 

S.E.2d at 111. Dr. Hakala did not render any direct treatment to 

the patient. Nevertheless, we held he was not entitled to 

sovereign immunity because the alleged acts of negligence 

occurred as part of patient care, not as part of maintaining a 

good medical school, and the acts involved the exercise of 

professional medical judgment, a function beyond the control of 

the Commonwealth. Id. at 54-55, 267 S.E.2d at 114. 

 Because we find that Dr. Bourgeois' function as an attending 

physician in this case was related to patient care and that acts 

taken regarding patient care are within the professional medical 

judgment of the physician, we conclude that the state's interest 

and degree of involvement are slight. Id. Therefore, Dr. 

Bourgeois is not entitled to sovereign immunity for the alleged 

negligent acts raised in this action. 

 Accordingly, the judgment of the trial court will be 

reversed and the case remanded for further proceedings. 

Reversed and remanded.