DOUGLAS E. PIKE
KATHRYN S. HAGAMAN
THE CIRCUIT COURT OF THE CITY OF RICHMOND Gregory L. Rupe,
All the Justices
STEPHEN R. McCULLOUGH JUSTICE
E. Pike, the plaintiff in a medical malpractice action,
challenges the trial court's dismissal of his complaint
on the basis of sovereign immunity. Pike argues that the
defendant Kathryn S. Hagaman, a registered nurse in the
Surgical Trauma Intensive Care Unit at Virginia Commonwealth
University, or VCU, Medical Center is not entitled to
sovereign immunity. Applying the four factor test from
James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980), we
disagree and affirm.
was a surgical patient at VCU Medical Center, a hospital that
is part of the VCU Health System. He underwent a complex and
lengthy surgery lasting over 12 hours to reconstruct his hard
and soft rear palates, i.e., the back of his mouth. Very few
hospitals in Virginia can perform such a surgery, with VCU
Medical Center being the only one in central Virginia that
can perform it.
the surgery, Pike was taken to the Surgical Trauma Intensive
Care Unit for recovery. This intensive care unit is a
specialized unit, which "has the infrastructure and the
expertise to manage the most complex surgical patients in the
hospital." Post-operative care in this unit requires
"a minute-to-minute obligation to manage the
post-operative care such that the patient continues to
improve." The patients are often in very critical
condition and, therefore, require "complex nursing
care." Each nurse in this unit is responsible for two
patients at most. Nurses must observe and assess patients,
closely monitor vital signs, monitor the drugs that might be
required for blood pressure support, care for patients on
ventilators, and carry out "the complex orders that
might be written by the surgery team." To provide this
care, the nurses in the unit are highly trained, including in
"postanesthetic care, postoperative care, wound care,
and the management of unstable patients."
environment is a collaborative one in which residents
frequently consult and work closely together with the nurses
in caring for the patients. The residents' interaction
with the nurses is integral to the training curriculum.
Nurses participate in the orientation of the residents to the
unit and support the residents by providing information.
surgery included making an incision in his neck to permit the
insertion of a ventilator tube. Following a surgery such as
the one Pike underwent, it is important to keep the
patient's head stable to enable blood to flow. Dr. Marc
Sarcia placed an order in the "order section" of
Pike's chart which stated, among other things:
"Please do not apply any pressure to the right neck area
in the vicinity of the incision." The doctors overseeing
Pike's care did not write any orders specifically
governing the position of his head or neck; i.e., they did
not order the nurses to maintain Pike's head in a neutral
or midline position. According to testimony from multiple
witnesses, nurses were required to exercise judgment and
discretion in determining how to position the patient's
head and how to avoid pressure in the vicinity of the neck
incision. A surgeon at the hospital testified that he would
rely on the skill and expertise of the nurse to position the
patient's head appropriately following surgery.
notes for the day after Pike's surgery stated, "Keep
head in neutral position, " and "[n]o pressure to
right side of face/neck." Dr. Andrea Pozez testified that nurses are
not required to read progress notes, and Hagaman testified
that progress notes are not the same as orders.
the morning five days after the surgery, Pike was found with
his neck tilted to the right, a position that would cause
"venous compromise." The staff on the floor was
instructed to avoid this practice. That afternoon, Dr.
Christopher Campbell, Pike's attending physician, found
Pike again in that position. Pike's face and neck were
massively swollen. As a consequence, Pike had to undergo
further surgery in an effort to salvage the palate
reconstruction surgery. Those efforts were not successful and
reconstruction surgery was for naught.
Health System Authority paid nurse Hagaman's wages and
her pay did not vary based on the number of patients that she
saw. She did not bill patients for the care she provided. A
scheduling committee made up of other staff nurses set her
work hours and approved her leave from work. She had no
discretion to refuse to see a patient.
filed a medical malpractice action, alleging that Hagaman was
negligent. In response, Hagaman filed a plea of sovereign
immunity. Following the presentation of evidence, the trial
court granted Hagaman's plea. In a memorandum opinion,
the court outlined the evidence and concluded that sovereign
immunity barred the action. This appeal followed.
review de novo a trial court's ruling on a plea of
sovereign immunity. City of Chesapeake v.
Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426
[w]hen evidence is presented "on [a] plea ore tenus, the
circuit court's factual findings are accorded the weight
of a jury finding and will not be disturbed on appeal unless
they are plainly wrong or without evidentiary support."
McBride v. Bennett, 288 Va. 450, 454, 764 S.E.2d 44,
46 (2014) (quoting Hawthorne v. VanMarter, 279 Va.
566, 577, 692 ...