Alabama’s Supreme Court recently issued a remarkable opinion in a case pitting a deceased patient’s estate against a formerly private, non-profit hospital whose assets and operation had been taken over by a local university’s medical center.   (Healthcare Authority for Baptist Health vs. Davis, Case no. 1090084, January 14, 2011).  The Court ruled the healthcare authority, in which the assets and operation of the hospital were organized after its takeover, enjoyed the same sovereign immunity from suit, as the university medical center which reorganized it.

Sovereign immunity is a hoary idea that is alleged to have arisen in the Middle Ages in England (some scholars dispute that it ever really existed in anything but theory).  It is founded on the premise that “The King can do no wrong”.  The King of England was considered ordained to rule by God himself (“Divine Right”).  Since God was perfect, i.e., could do no wrong, then neither could the King.  So the King (and presumably God) could not be made to suffer suit in a court of law.  It was not an overly viable legal theory.  The ability of a King to assert sovereign immunity would necessarily be directly and positively correlated with the King’s political power, which in turn, would be directly and positively correlated with his political popularity.   A popular, and thereby powerful, King might capably assert sovereign immunity as a shield against liability for his actions, but probably rarely needed to.   A weak King could not, making the idea, were it ever actually practiced, mostly a nullity. 

Then the colonists got hold of it.  Though the post-preamble text of the Declaration of Independence is basically a laundry list of the King’s imperfections, implying that the colonists might have been a bit skeptical that the King was an earthly personification of God’s perfection; and the subsequent US Constitution mentions the doctrine not at all, sovereign immunity was nonetheless adopted as a viable legal doctrine by the judiciary of the newly-formed United States almost as quickly as it was able.  (e.g., see Chisolm vs. Georgia, 1793; Cohens vs. Virginia, 1821, and Clark vs. United States, 1834).  The colonists specifically disdained the imperatives and trappings of monarchy, but afforded their new government with one of the most distasteful of its prerogatives.

With sovereign immunity, the only recourse in the event of a governmental breach of contract or the tortious conduct of its employees or agents was for the injured to petition the legislature (i.e., Congress) for redress, a most inefficient and fraught undertaking.    It didn’t take long for the US to whittle away at the doctrine.  In the mid- and latter-1800’s, it passed laws acknowledging that a government which can make contracts must also provide the parties with which it contracts the means of redress in the event of a breach, if the notion of a government contract is to have any meaning.  But it took until 1946 for the US government to admit almost fully its imperfection in the eyes of God and man, passing the Tort Claims Act that allowed suits against the government for the tortious conduct of its agents and employees (with a few exceptions related to governmental imperatives like waging war and otherwise providing the protections which form the essence of government’s purpose.  Interestingly, it retained immunity for its conduct of monetary operations—a little factoid of which Federal Reserve Governors are doubtlessly aware). 

The states were so incensed at the Supreme Court’s ruling in Chisolm, that they passed the Eleventh Amendment in 1795, granting them immunity from suit by, inter alia, the citizens of another state, which was extended to immunity from suit by the state’s own citizens in Hans v. Louisiana in 1890.  Thus sovereign immunity for the states began when the US government was abandoning the idea for itself.  I doubt it an accident that it arose at roughly the same time as the post-Reconstruction, Jim Crow era began.

In Alabama, there was no sovereign immunity until ratification of the Constitution of 1875 (Article I, Section 14) provided that the state could not be made a defendant in law or equity.   Yet Section 13, just preceding the immunity article (14), seemed to at least indirectly contradict it, guaranteeing every person a remedy by due process of law for “any injury done … in his lands, goods, person, or reputation”.   Clearly, confusion was bound to ensue.  Of course, clarity in law is the bane of the legal industry.   With clarity, there would be no need for lawyers, and little of courts.  With confusion, resolution of matters great and small become the imperative of legal sophists and rhetoricians.  And so it was with the doctrine of sovereign immunity in the State of Alabama.

The first question to answer regarding state sovereign immunity is what, exactly, constitutes the State?  Is it the actual judicial, executive and legislative operations at the core of State functions?  Or is it all the various agencies, departments, etc., that arise to facilitate accomplishing the imperatives of State government?  Are colleges immune?  How about mental health facilities?  Once it is decided which entities enjoy immunity, it must then be considered (for those that are immune), does the protection extend to the employees, agents and officers of the entity?  If so, what actions does it cover?  Does an employee driving a school bus enjoy immunity from a wreck when he is found to have been driving under the influence of drugs?   What if he wrecks because of simple carelessness?  Imagine the billable hours resolving all this nonsense has entailed.

Ultimately, until the Court’s decision in Davis, sovereign immunity had been all but effectively eliminated.  Counties and municipal corporations, though considered to be part of the State, lost their immunity in a series of cases in 1975 (though their liability is subject to a $100,000 limitation).  Employees, agents and even officers of the State are said to be acting without State authority when committing tortious acts (they’re doing wrong, which is impossible for the state, so they can’t enjoy immunity), so they don’t enjoy immunity, even when engaged in the very activity for which they represent the state, like the taking of private property for a public purpose.  Sovereign immunity, created in Alabama by Constitutional fiat, had been judicially winnowed until it existed mostly as just an abstraction. 

Along comes some obscure amendment in 2003 to the law authorizing counties and municipalities to create health care entities (which, when formed by counties and cities, carry the same bar to immunity as counties and cities, and the same $100,000 cap on liability) that allowed public educational institutions (i.e., state universities, inter alia) to create health care entities (specifically, “Health Care Authorities”) like the counties and cities could.  Presumably, the law was passed under the assumption that the health care entities created by the educational institutions would have the same liability cap and suffer the same lack of protection afforded by immunity.  Baptist didn’t even argue for immunity at trial, only bringing up the subject on appeal. 

And then, astoundingly, the Court grants immunity to Baptist because of it having conditionally given over all its assets to a health care entity created by one of the state’s universities.  A city or county government enjoys no sovereign immunity, but a private hospital being run by a public university does?

This really sounds bad.  Why in the world would anyone go to a publicly-owned hospital if they enjoyed complete immunity for negligence?  You can imagine the scenario, “Oops, sorry we cut the wrong leg off, but hey, try getting any money out of the hospital.  Now turn over and let me get at that leg I was supposed to cut off.”  It just wouldn’t fly.  Fortunately, though the Court, which likes to do things that generate confusion such that contributions will more readily flow from the lawyers that profit from the legal ambiguities it creates, has not so foolishly abrogated liability for all medical care providers.  Individual doctors that are negligent, even those working for university hospitals, can still be sued and held liable (pursuant to Crannon v. Maxwell decided in 2000).  But by providing immunity to all the university-owned hospitals, it has protected, at least in theory, about half of the institutions (by size, not number) that operate hospitals in the state.

Thus a principle that arose from the conceit of a people wishing to deify the imperatives of their monarch several hundred years ago has mutated and evolved and adapted until it squirts out on the other end of history as a narrow abstraction purporting to shield the State from liability because the State can do no wrong.  Operatively, if something is nonetheless done wrong, then the State couldn’t be considered to have done it.  Yet, in the  Baptist vs. Davis case at least, the negligence of a hospital was absolved, because in a “case of first impression”, the Court found royal perfection in an entity about two levels removed from actual State governance.  You couldn’t make this up if you tried.  (I should point out that the notion of imperial perfection as justification for sovereign immunity evolved to a line of reasoning that basically said since the State creates the laws forming the foundation of the cause of action against it, it is immune from the prosecution of those laws by its citizens.  All the logical conundrums pregnant in such reasoning makes the head hurt just considering it.) 

What practical effect does this ruling have?  Very little, outside of this immediate case.  It means that doctors and nurses and other health care professionals working in university-operated hospitals won’t have the State backing them up in court when they are sued for negligence.  They didn’t before, but maybe they’ll better understand it now.  Medical malpractice suits will still happen, but they’ll reach individuals rather than the organizations in which they work.  Without the shield of the State’s deep pockets, health professionals working for university hospitals better make sure their liability insurance is in order.  But really, this is the way things should be.  Doctors should never be able to hide their incompetence behind the walls of a hospital.   Doctors receive really very little oversight from the hospitals that employ them.  They should effectively be indemnifying the hospitals for their negligence and incompetence.

I’ve wondered whether the doctors treating my son realized that they could be held individually liable for their mistakes and negligence.  They certainly behaved as if they didn’t.  Would a doctor allow an actively-bleeding child to go nearly eighteen hours without platelets (the part of the blood needed for it to clot), if he thought he might have to answer for it in a court of law?  Would a doctor have failed to ensure a child had enough platelets before pushing him into surgery to install a dialysis catheter, after having been given 24 hours to make sure his platelet levels were adequate, if he understood he could be held legally liable for his incompetence?  Would a bone marrow transplant doctor have misdiagnosed graft versus host disease (a specific complication of a transplant) for six months while the child’s liver and kidneys slowly failed him, if he’d felt the threat of legal action breathing down his back?  Would a bone marrow transplant doctor have ordered the insertion of a catheter for a bleeding bladder over the directives of the urologist, had he feared responsibilities for the outcome?  Would a hospital create a children’s wing of their transplant unit at an off-site location, and then exercise virtually no oversight and control over its operation, had they not enjoyed immunity from their bureaucratic stupidity?   Only the last of the situations might enjoy the King’s immunity.  The rest could be reachable in a suit against the doctors, though given their disregard in following standard medical practices (breaching the hospital’s own guidelines for platelet levels in two of the cases), it’s doubtful the doctors were much concerned or believed that they answered to anyone.   Maybe their disregard will prove misplaced.

Everyone answers to someone, or in fact, everyone.  All owe a duty to not harm each other.   Criminal and punitive law provides penalties for the intentional infliction of harm.  Civil law provides penalties for negligently-inflicted harm.  Either way, criminal or civil, prince or pauper, the duty each to the other does not change. 

What little is left of the quaint anachronism of sovereign immunity, woven more or less from whole cloth by a legal industry bent on creating confusion with which to line its pockets, should be now and forever conclusively discarded.  If litigious citizens wish to sue the state or its employees and agents, let them.  Dismiss suits that are without merit (e.g., there’s never has been a cause of action against legislators for the votes they cast in legislative sessions and that wouldn’t change by abolishing sovereign immunity) and allow those with merit to proceed.  No individual or organization–business, political or otherwise– should ever feel as though they can act, or fail to act, with impunity.  Responsibility for what we do forms the foundation of the social contract we embrace when agreeing to live together in civilization.  The political organizations specifically created to facilitate the social contract should not themselves be exempted from its operation.