On Application for Rehearing
The opinion of November 24, 1999, is withdrawn and the following is substituted therefor.
Paul J. Cranman, as executor of the estate of his son Matthew Cranman, deceased, was the plaintiff in a medical-malpractice action. He appealed from summary judgments entered in favor of the defendants David Maxwell, M.D.; Patricia A. Hubbs, M.D.; John Galaznik, M.D.; and Joe Bethany, M.D. (hereinafter sometimes referred to collectively as "the physicians"). The Court of Civil Appeals affirmed, holding that the physicians were entitled to discretionary-function immunity. Cranman v. Maxwell, 792 So.2d 386 (Ala.Civ.App.1998). We granted Paul Cranman's petition for certiorari review, and we reverse.
Matthew Cranman was a student at the University of Alabama in 1994. On September 12, 1994, he went to the Russell Student Health Center of the University of Alabama ("the student health center"), complaining of swelling and pressure in the area of his left testicle. Dr. Maxwell examined him, diagnosed epididymitis (an inflammation of the sperm-collecting tubes near the testicles), and prescribed antibiotics and sitz baths. Matthew returned on October 11, 1994, complaining of low-back pain. Dr. Galaznik examined him, diagnosed muscle pain, and prescribed medication. On November 7, 1994, Matthew again went to the student health center, reporting that he had a possible prostate infection. Dr. Maxwell saw him and determined that he had a slightly tender mass effect in the left epididymis; however, a testicular examination was negative. Dr. Maxwell prescribed more antibiotics and instructed Matthew to return in two weeks. Matthew returned on November 29, 1994, reporting mild discomfort in his left testicle. Dr. Bethany examined him, noted a slight enlargement of the testicle, changed his medication, and recommended that he consult a urologist in his hometown during the semester break.
Matthew did not visit the student health center again until August 23, 1995. At that time he complained of a stabbing, burning pain in his left flank. Dr. Maxwell examined him, diagnosed left paralumbar pain, and prescribed medication and physical therapy. Two days later, when Matthew reported for physical therapy, he was examined by Dr. Hubbs, who noted that he was tender along the costal margin, in his left side, and in his flank. Dr. Hubbs thought Matthew had suffered a strain of the chest muscles; she prescribed additional medication, recommended that he try heat or ice, and instructed him to return in a week. When Matthew returned six days later, he reported that he was feeling better, and Dr. Hubbs gave him additional medication. On October 11, 1995, Matthew reported to the student health center with back pain and a flareup of his epididymitis. Dr. Hubbs noted that he had the symptoms of a hydrocele and that he had seen a urologist. She examined him, diagnosed recurrent epididymitis and a back strain, prescribed pain and antibiotic medication and back exercises, and instructed him to return in two weeks if he did not improve.
In December 1995, Matthew was diagnosed with testicular cancer. Cancerous cells were found in his lungs and behind his kidneys. His left testicle was surgically removed, and he underwent chemotherapy, radiation, and other cancer treatments.
II. Procedural History
In September 1996, Matthew sued Drs. Maxwell, Hubbs, and Galaznik; the student health center; and others. He alleged that the physicians had negligently or wantonly breached the applicable standard of care in treating him, thereby breaching an implied contract to render medical treatment. In their answer, the physicians asserted the defense of immunity because, they claimed, they were engaged in a discretionary function within the scope of their authority as employees of the University of Alabama. They then moved for a summary judgment on the basis of immunity. Matthew then amended his complaint to add Dr. Bethany as a defendant and to dismiss the student health center.
Matthew Cranman died on November 6, 1997.
Cranman v. Maxwell, 792 So.2d at 391-92.
Paul Cranman petitioned this Court for certiorari review of the Court of Civil Appeals' decision. He frames the issue presented as "whether the physicians in the rendition of purely medical treatment to an individual are performing a discretionary act as contemplated by caselaw and are legally entitled to officer-agent immunity under the Constitution for the State of Alabama, Art. I, Section 14." The Court granted his petition and consolidated this case with three other cases for oral argument. All of the cases question the continuing validity of the doctrine of immunity for health-care providers in the State service. See Wells v. Storey, 792 So.2d 1034 (Ala.1999); Ex parte Rizk, [Ms. 1970493, Nov.24, 1999] (reh'g pending);
III. Development of the Doctrine of Immunity
We today reexamine the doctrine of immunity of officers, agents, and employees of the State for torts committed in the course of their performance of their duties.
We begin our discussion with a review of the doctrine of immunity where the issue
In the Constitution of 1865, a change in philosophy first surfaced when the privilege of suing the State was shifted from a matter of right to a matter within the discretion of the Legislature.
In the early years of statehood, this Court allowed a county to enjoy immunity from negligence or nonperformance of its duties except when a statute expressly provided otherwise. A city's liability turned on whether the city was performing a corporate, as opposed to a governmental, function.
In Hutchinson, supra, this Court addressed whether the State, acting in its proprietary function, was entitled nonetheless to assert its immunity. Answering in the affirmative, the Court spoke as follows:
288 Ala. at 24, 256 So.2d at 284. Today we must decide whether agents of the State sued in their individual capacity are entitled under certain circumstances to similarly sweeping immunity, regardless of how we would classify the activity in which they are engaged.
No counterpart to Art. I, § 14, Ala. Const. of 1901, which declares the State immune from suit, appears in the Constitution of the United States. Also, the United States Constitution has no counterpart to Art. I, § 13, guaranteeing every person a remedy by due process of law for "any injury done ... in his lands, goods, person, or reputation." The immunity of the United States Government is based upon the decisional law of the federal courts, uninfluenced by the presence of provisions comparable to §§ 13 and 14 of the Alabama Constitution of 1901.
Restatement (Second) of Torts § 895A cmt. a (1977). Over time, the United States Congress, unfettered by constitutional restraints on lawsuits against the United States and not subject to any constitutional guaranty that a person would have the right to a civil action to redress an injury, enacted statutes that allowed the United States Government to be sued in certain circumstances. For example, in 1855 Congress established the Court of Claims to hear contract cases; in 1887, the Tucker Act waived immunity from suit and conferred jurisdiction upon the Court of Claims and the United States district courts to hear claims against the United
Because the source of the immunity from suit enjoyed by the State of Alabama differs from the source of immunity of the United States Government in that the State's immunity is constitutionally based,
Copeland and Screws, in their 1961 article, supra, refer to State-agent immunity only in passing, when dealing with the separate concept of governmental immunity.
Copeland & Screws at 307 (emphasis in original) (footnotes omitted).
In England, the doctrine that "the king can do no wrong" came to be accompanied by the concept that his ministers were personally responsible when they acted illegally. Under their authority to create a common law, courts have struggled over the years to develop a meaningful compromise between the two extremes.
In Mitchell v. Forsyth, 472 U.S. 511, 521, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court recognized the footings of the doctrine of immunity in considerations of the separation-of-powers doctrine. Art. III, § 43, Ala. Const. of 1901, requires that each of the three separate coequal branches confine its activities to its respective sphere. While we have not heretofore considered the separation-ofpowers doctrine as part of the equation in determining issues of liability of State agents, other jurisdictions have traced the
Soon after the Constitution of 1901 was adopted, this Court, in Elmore v. Fields, 153 Ala. 345, 45 So. 66 (1907), recognized the right of a citizen to sue a State employee for a tort committed in the line of duty. Elmore was the first Alabama case ever to deal with the issue of immunity for State agents sued in their individual capacity for the commission of a tort. The Court recognized no immunity, citing State v. Hill, 54 Ala. 67 (1875), wherein the Court had held that the State could not be liable under the doctrine of respondeat superior for the torts of its agents. The Court in Elmore also cited United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), wherein the Supreme Court had quoted from Chief Justice Marshall's opinion in Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 842-43, 6 L.Ed. 204 (1824), as follows:
106 U.S. at 213. Thus, because the State can do no wrong, its agents, when committing a tort, are not acting within their authority and, therefore, they do not act on behalf of the State. Elmore, 153 Ala. at 351, 45 So. at 67.
Section 13, with its guaranty of a right to a remedy, was applied in J.B. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805 (1930), where a contractor argued that a statute granting Jefferson County the authority to build a sewer system also granted immunity to the county and that the county's immunity shielded it from liability. In rejecting this argument, this Court stated that such a construction of the statute would conflict with § 13 of the Constitution.
The Constitution and cases construing it require that we not ignore § 13 in order to protect State agents from suit. However, the vulnerability of State agents to suit, if not constrained, could lead to excessive judicial interference in the affairs of coequal branches of government, contrary to
We cannot ignore precedents such as Elmore, J.B. McCrary Co., and Finnell, clearly recognizing an open door to lawsuits against State agents and written by Justices of this Court who lived, worked, and wrote in an era much closer to the drafting of the Constitution of 1901 than we do. Yet, at the same time, we cannot ignore the strong policy against judicial interference in the affairs of State government as articulated in § 14 and mandated by § 43. Although § 14 is, by its terms, restricted to prohibiting lawsuits against the State, we cannot disregard its impact upon our obligation to observe the constitutional separation of powers. However, we cannot give excessive deference to the authority of the legislative branch, grounded in the separation-of-powers doctrine stated in § 43, to eliminate entirely personal liability of State agents. The authority to exercise the judicial power in § 6.01 of Amendment No. 328 appears after Art. I, § 36.
In light of the foregoing constitutional provisions, we conclude that while we have the constitutional power to decide cases—thereby applying the law in cases that come before us—if the authority conferred upon this Court pursuant to the Judicial Article (Article VI) conflicts with the provisions of § 13, we must construe § 13 as dominant, subject to our obligation to observe the separation of powers established by § 43. In applying the doctrine of separation of powers, we must recognize § 14 as an expression of a strong public policy against the intrusion of the judiciary into the management of the State while, at the same time, acknowledging that it speaks only to a prohibition of lawsuits against the State and does not mention lawsuits against individuals. For this reason, the express provisions of § 13 establishing the right to a remedy through a lawsuit against an individual must, as to the issue before us, stand above the implications from § 14 in the hierarchy within the declaration of rights. In the final analysis, we cannot invoke merely the authority to declare "sound public policy" through caselaw in order to find State agents immune from suit; in order to declare them immune, we must find the immunity in constitutional provisions. This constitutional backdrop enables us to articulate public policy through caselaw in this troublesome area, using constitutional principles, and not simply personal notions of good government, as our compass.
Against this backdrop, we turn to the more recent cases dealing with Stateagent
Over the years since this Court decided DeStafney, a case in which an injured child was allowed to sue an employee of a day-care center operated by the University of Alabama, based on the ministerial nature of the employee's duties, the doctrine of State-agent immunity has been applied in a variety of settings. A review of the cases in their factual context illuminates the line the courts of this State have drawn between conduct involved in planning or decision-making in the administration of government
The most difficult applications of the rule derived from the Restatement come in instances where the discretion being exercised has little, if any, bearing on the administration of an agency of government or the execution of duties imposed by law. We cannot insulate State employees acting outside that zone, without disregarding § 13. In Taylor v. Shoemaker, 605 So.2d 828 (Ala.1992), this Court again dealt with the question of qualified immunity and noted the impact of DeStafney on earlier cases:
605 So.2d at 829-30. This Court in Taylor noted that the sweep of Finnell had been restricted by DeStafney.
Our more recent cases dealing with the question when conduct constitutes the performance of a discretionary function as opposed to the performance of a ministerial function have used language that suggests a requirement that the actor be involved in "planning tasks" and "policy-level decision-making" in order to qualify for immunity. See Defoor v. Evesque, 694 So.2d 1302, 1305 (Ala.1997), followed in Town of Loxley v. Coleman, 720 So.2d 907 (Ala.1998). Recently, the Court of Civil Appeals referred to conduct that falls under
Under the most elementary elaboration of the DeStafney formulation, conduct related to policy and planning and involving the exercise of judgment carries immunity, while ministerial acts carrying out the commands of decision-makers do not. However, at least two primary problems arise in the application of this test drawn from the American Law Institute's appreciation of prevailing law from around the country.
First, as is the case with liability under the Federal Tort Claims Act, as discussed in Berkovitz v. United States, see note 17, cases from other jurisdictions often draw the line in the context of statutory remedies under which all agents enjoy immunity and therefore the point of demarcation relates only to the extent to which the public coffers will be open. These decisions arising in a context where all agents are immune do not have to reckon with the effect upon the rendition of governmental services if agents are inclined to indecision rather than risk personal liability. However, because we are bound by the aforementioned constitutional provisions, we cannot allow such extraconstitutional considerations to control the outcome.
Second, as long as the agent has not disobeyed clear instructions, almost any challenged conduct can be reduced to the exercise of some degree of judgment or discretion. However, judicial deference to all conduct in which judgment or discretion is employed would exalt the immunity of § 14 over the right to a remedy preserved by § 13. As an example, there should be some recognizable difference in legal consequence between, on the one hand, a prison warden's decision not to fire or not to sanction the entity contracting with the State Department of Corrections to provide medical services and, on the other hand, a decision by the driver of a pickup truck on how to drive through or around potholes while transporting prisoners. Each situation involves judgment or discretion. Under our recent cases, the warden is immune
We cannot, in blind obedience to the doctrine of stare decisis, continue to accept an expansive application of caselaw characterizing as a discretionary function conduct remote from the execution of governmental policy; to do so would perpetuate an erroneous construction of the Constitution. Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 42 (Ala.1998) (Lyons, J., concurring specially) (citing Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434,
IV. Restatement of the Rule Governing State-agent Immunity
We therefore restate the rule governing State-agent immunity:
A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or
(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.
We today only modify Elmore and cases relying upon it so as to preserve the proper balance between §§ 13, 14, 43, and § 6.01 of the Judicial Article. Our decision today strikes a balance between constitutional provisions—between the right to a remedy guaranteed by § 13 and the immunity of the State provided for by § 14; this decision is informed by the wisdom of the doctrine of separation of powers, as considered in light of the presence of § 14, and this decision should prevent Justice Thomas's point made by exaggeration in his dissenting opinion in Finnell from becoming prophecy. The Legislature, should it see fit to do so, can create a mechanism for providing State employees with liability insurance or it can propose a constitutional amendment that would authorize statutory procedures to make the
V. Application of the Restated Rule of State-agent Immunity to the Physicians
We now return to the question presented by this case: Whether physicians employed by the University of Alabama to work at the student health center, a facility funded by the State for the purpose of providing readily accessible medical care to students, are entitled to State-agent immunity. The physicians argue that decision-making exercised by a physician in treating a patient should be entitled to immunity because, they say, such decision-making inherently involves the utmost discretion, while the plaintiff Cranman argues that a physician's treatment of a patient is too remote from governmental policy to be entitled to immunity. In response, the physicians argue that governmental policy need not be material to the physician's decision-making because, they say, the business of government is whatever government chooses to do.
We determine the immunity issue pursuant to today's restatement of the rule governing State-agent immunity
APPLICATION GRANTED; OPINION OF NOVEMBER 24, 1999, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
HOOPER, C.J., and HOUSTON, J., concur.
JOHNSTONE, J., concurs specially.
COOK, J., concurs in the judgment and concurs in part in the opinion.
BROWN, J., concurs in the judgment.
MADDOX and SEE, JJ., dissent.
ENGLAND, J., recuses himself.
JOHNSTONE, Justice (concurring specially).
I concur, but with the reservation that the Restatement (Second) of Torts § 895D "Public Officers" (1974), and not § 14 or § 43 of the Alabama Constitution of 1901, seems to be the current basis for Alabama's doctrine of State-agent immunity, DeStafney v. University of Alabama, 413 So.2d 391, 393 (Ala.1981), although I recognize that some of our cases, including DeStafney, contain language to the effect that § 14 is, to some extent, the basis. The Restatement of Torts derives principally from the common law and from the public-policy judgments of the legal scholars who have authored the Restatement of Torts in a private capacity and not in the capacity of public officials. This basis of common law and legal scholarship amply supports the re-restatement of the law of Stateagent immunity in this Cranman decision, which is worded to provide a way to distinguish immune conduct from nonimmune conduct with consistent accuracy.
COOK, Justice (concurring in the judgment and concurring in part in the opinion).
I concur in the judgment. I would concur in the opinion but for two concerns.
"(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students."
792 So.2d at 405 (emphasis in main opinion). Because none of these elements is involved in this case, I regard the statements regarding this "rule" as dicta, and I do not concur in them.
Second, I disagree with much of the discussion in Part III of the main opinion, regarding the "development of the doctrine of immunity." The discussion implies that Alabama's discretionary-function immunity arises out of Ala. Const.1901, § 14. That is not so.
Section 14 "prohibits the State and its agencies from being made defendants in any court of law." Rutledge v. Baldwin County Comm'n, 495 So.2d 49, 51 (Ala. 1986) (emphasis added). This Court has "interpreted § 14 as affording absolute immunity to some State officials, as well as to the State itself." DeStafney v. University of Alabama, 413 So.2d 391, 392 (Ala.1981) (on rehearing) (emphasis added). Thus, where § 14 is applicable, it is an absolute defense to tort liability.
It has long been recognized, however, that not every person or agency infused with some aspect of governance qualifies for § 14 immunity. "State officers and employees, in their official capacities and individually, ... are absolutely immune from suit [only] when the action is, in effect, one against the State." Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989). "In determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought." Ex parte Carter, 395 So.2d 65, 67-68 (Ala.1980). An action is essentially one against the state "when a result favorable to the plaintiff would directly affect a contract or property right of the State." Id. at 68 (emphasis added). "`[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.'" DeStafney, 413 So.2d at 393 (quoting Ford
The scope of § 14 is further limited by the fact that it extends only to "the protection of `immediate and strict governmental agencies of the State, as its State Board of Administration, State Docks Commission,... the University of Alabama, the State Insane Hospital, and other mere governmental agencies.'" City of Foley v. Terry, 278 Ala. 30, 34, 175 So.2d 461, 465 (1965) (emphasis added) (quoting Ex parte Board of School Comm'rs of Mobile County, 230 Ala. 304, 305, 161 So. 108, 109 (1935), which concluded that § 14 does not apply to "county and city boards of education").
Where the action is not one against the State, however, this Court has adopted the discretionary-function analysis of the Restatement (Second) of Torts § 895D (1974). DeStafney, supra; Grant v. Davis, 537 So.2d 7 (Ala.1988) (citing DeStafney as the progenitor of Alabama cases applying the Restatement approach); Crowe v. City of Athens, 733 So.2d 447 (Ala.Civ.App.1999) (citing Grant v. Davis as the case adopting the Restatement approach). This Court said in DeStafney:
413 So.2d at 395.
Thus, where an action is against a public official and is not, in reality, one against the State, the immunity analysis involves the principles of the Restatement—not § 14. Defoor v. Evesque, 694 So.2d 1302, 1305 (Ala.1997) (Restatement principles apply "[w]hen a State employee is sued for negligence in an action that is not, in effect, an action against the State"). See also Alabama State Docks v. Saxon, 631 So.2d 943, 948 (Ala.1994) ("employees of the State Docks are protected from individual liability only under the doctrine of discretionary function immunity"); Nance v. Matthews, 622 So.2d 297 (Ala.1993).
Admittedly, language in some of our cases suggests that even discretionary-function immunity proceeds from § 14. For example, DeStafney suggested that § 14 "extend[s] a qualified immunity" in such cases. 413 So.2d at 392 (emphasis added); see also Ex parte Kelley, 739 So.2d 1095 (Ala.1999); Pack v. Blankenship, 612 So.2d 399, 403 (Ala.1992) (stating that § 14 also contemplates "qualified immunity," but, nevertheless, using the analysis of the Restatement and the cases applying it). The statement in DeStafney was not followed by any citation of authority, however. Indeed, the contrary proposition was apparent in Ex parte Board of School Commissioners, supra, which directly rejected the contention of the Commissioners that they came "within the protection of section 14." 230 Ala. at 304, 161 So. at 109. In that case, this Court, discussing the immunity afforded to county and city boards of education "from liability for torts of [their] servants or agents," suggested that such immunity flowed from the "broad principle of public policy," rather than from § 14. 230 Ala. at 305, 161 So. at 109.
In fact, DeStafney itself went on to explain that the concept of "qualified immunity... accords with the majority rule with respect to public officials and employees, even in those states that have no comparable constitutional immunity." 413 So.2d at 392 (emphasis added). The Court then proceeded to consider whether
As a matter of pure logic, the distinction between § 14 and the Restatement is patent and fundamental. If § 14 applies, it matters not whether the challenged conduct of the defendant was discretionary or was ministerial. The official is absolutely immune. In such a case, there is nothing to "weigh" or to "balance." The result is not based on "policy," but on the express prohibition of Alabama's Constitution.
On the other hand, where the action is not one against the State, the immunity analysis is based on considerations of public policy and proceeds upon the general principles of the Restatement. In that case, the existence of immunity turns on whether the conduct of the defendant-official involved the exercise of discretion. Such actions involve a discretionary-function analysis not different in any respect from analyses applied in states that do not have a provision comparable to § 14. Thus, the analysis would be the same if the Alabama Constitution did not contain § 14. Because § 14 is superfluous in such cases, it is disingenuous to suggest that discretionary-function immunity is based on § 14. Although some are confused as to the difference between absolute (§ 14) immunity and discretionary-function (Restatement) immunity, this Court must keep the distinction plainly in view.
In this case, no one contends that the physicians were acting pursuant to any statutory authority, or that they are "state officials" being sued in their official capacities. There is no means by which the University of Alabama, and by extension, the State of Alabama, could be charged with any judgment in favor of Cranman. Thus, § 14 is simply immaterial to this case. Instead, the case involves ordinary discretionary-function immunity, such as is extended to officials in a myriad of roles invested with a public interest. Thus, I disagree with any implication in the main opinion that discretionary-function immunity arises out of § 14.
I agree, however, with the premise of the main opinion that a physician's exercise of discretion in treating a patient at a state university's health clinic is not such conduct that to subject it to liability would violate the doctrine of separation of powers. During oral argument of this case, which was consolidated for oral argument and consideration with three other medical-malpractice actions against State-paid physicians, namely, Wells v. Storey, 792 So.2d 1034 (Ala.1999); Ex parte Rizk, [Ms. 1970493, Nov. 24, 1999];
The rule of Kassen is consistent with, if not identical to, the two-step approach adopted by the United States Supreme Court in Berkovitz v. United States, 486 U.S. 531, 539, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) (officials are immune "only [for] conduct that involves the permissible exercise of policy judgment"), modified, United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (immunity attaches only to those decisions that
On the other hand, "[t]he physicians argue that decision-making exercised by a physician in treating a patient should be entitled to immunity because, they say, such decision-making inherently involves the utmost discretion." 792 So.2d at 406 (emphasis added). The physicians' argument is, in other words, that simply by virtue of their profession they are immune from liability in the practice of that profession. In my view, it is the failure to adopt a Kassen-type rule that would violate the doctrine of separation of powers. Otherwise stated, it is the rule urged by the defendant physicians that would violate that doctrine.
As the main opinion points out, some courts have discussed the doctrine of qualified immunity within the context of the separation-of-powers doctrine. See 792 So.2d at 399-400 (citing cases).
This rationale rests on two premises. First, there are certain "realms of policy" beyond the judiciary's sphere of "institutional competence," realms into which "courts must not intrude." Id. (emphasis added). Second, the separation-of-powers principle requires deference to the policymakers in the coordinate branches of government as to those matters that involve "issues of basic policy." Id. Neither of these premises supports the proposition
A. Institutional Competence
As one justification for judicial deference to certain policy-makers, it is said that "[t]he judicial branch lacks the fact-finding ability of the legislature." Ransom, 113 Idaho at 205, 743 P.2d at 73; Helton v. Knox County, 922 S.W.2d 877, 885 (Tenn. 1996); see also Brooks v. Logan, 127 Idaho 484, 903 P.2d 73 (1995). The truth of this assertion, however, is contextual. In some contexts—such as the one involved in this case—the reverse is true. The distinction was recognized in Womble v. Singing River Hospital, 618 So.2d 1252 (Miss.1993), where the application of this premise to "medical personnel ... making treatment decisions" was soundly rejected. 618 So.2d at 1262-63.
Specifically, the Supreme Court of Mississippi explained:
Id. at 1264 (emphasis added).
Similarly, the judiciary of Alabama has "special competence to decide discrete cases and controversies involving particular parties and specific facts." Alabama Power Co. v. Citizens of Alabama, 740 So.2d 371, 381 (Ala.1999) (emphasis added). Within that sphere, the institutional competence of the judiciary is supreme.
The standard of care for medical treatment is the same whether the institution employing the treating physician is a public institution or a private one. In other words, physicians are, in either case, obligated—both legally and morally—to exercise due care in treating their patients. Determining whether that obligation was met in any given case is a matter peculiarly within the prerogative of the judicial branch. The matter is not, in any sense, legislative or executive. Indeed, the only branch with a legitimate role in issues involving a breach of the standard of care owed by a physician to a patient is the judicial branch, acting in its fact-finding role.
B. Deference to Policy-makers
The second premise underlying the separation-of-powers rationale is that it requires deference to the policy-makers of the coordinate branches of government in matters involving the "issues of basic policy." Ransom, 113 Idaho at 205, 743 P.2d at 73. Here again, the legislative and executive branches are uninvolved. This is so, because "there is nothing inherently governmental about decisions regarding individual medical treatment. They do not involve the formulation of public policy in any respect. Therefore, the notion of promoting governmental decisions that are in the public good is completely inapplicable." Womble, 618 So.2d at 1263. Hence, the distinction "between governmental [discretion] and medical discretion." Kassen v. Hatley, 887 S.W.2d at 11 (emphasis added).
"[T]he exercise of medical discretion does not require the same protection as the exercise of governmental discretion. Without immunity, some government officials might hesitate to take actions for the public's protection that could subject them to individual liability." Id. "For example, a police officer might decide not to pursue a suspect. However, a doctor cannot avoid personal liability through inaction because physicians are under a duty to exercise ordinary care to treat patients." Id. (Citation
Under this distinction, physicians still enjoy immunity for the exercise of "governmental discretion," that is, decisions establishing governmental policy. Otherwise stated, immunity would attach to such decisions as "require governmental judgment." Gleason v. Beesinger, 708 F.Supp. 157, 159 (S.D.Tex.1989). Examples of such decisions would be those related to the questions "whether a patient is eligible for treatment and whether facilities are available to treat a patient," id. at 162 (citing Costley v. United States, 181 F.2d 723, 724-26 (5th Cir.1950)); and whether "to provide health service, which and how many services to provide, and where and how to provide them." Comley v. Emanuel Lutheran Charity Bd., 35 Or.App. 465, 478, 582 P.2d 443, 450 (1978).
In short, acts involving only "medical discretion" do not implicate the premises underlying the separation-of-powers rationale. I say once again, the only branch of government with a legitimate role in issues involving a breach of the standard of care owed by a physician to a patient is the judicial branch, acting in its constitutional, fact-finding, remedial role. The rule proposed by the plaintiff in this case and the patients in the cases orally argued with this one does not offend that principle; the rule proposed by the defendant physicians does.
This is so, because the separation-ofpowers principle would be offended by a rule that established absolute immunity for State-paid physicians operating within the physician/patient relationship. Such a rule would oust the judiciary of jurisdiction in matters precisely within the sphere of its constitutional prerogative. See Alabama Power Co. v. Citizens of Alabama, supra, 740 So.2d at 381 (judiciary has "special competence to decide discrete cases and controversies involving particular parties and specific facts"). If—as the defendant physicians urge us to hold— physician immunity includes acts of medical-treatment discretion, then, in every conceivable medical-malpractice action against a State-paid physician, once the physician invoked the defense of discretionary-function immunity, the court would have nothing to do but summarily dismiss the physician from the action. Indeed, during oral argument, counsel were unable to hypothesize any credibly foreseeable scenario under which a State-paid physician would not be immune under the immunity rule urged by the physicians in this case.
Simply stated, the rule would leave the judiciary nothing to do in a class of cases committed to it by the constitution. See Ex parte Jenkins, 723 So.2d 649 (Ala. 1998); Broadway v. State, 257 Ala. 414, 60 So.2d 701 (1952) (separation-of-powers principle was violated by a statute that deprived the court of the right to act "judicially" in a certain class of cases); Sanders v. Cabaniss, 43 Ala. 173 (1869). This Court may not, under the guise of a separation-of-powers
BROWN, Justice (concurring in the judgment).
While the main opinion's attempt to restate generally the law in this area is a worthwhile endeavor, I can concur only in the judgment. I prefer to make at this time no determinations that would reach beyond the issues in the case before us.
MADDOX, Justice (dissenting).
In my opinion, the facts of this case do not require a conclusion different from that reached in Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971). In that case, I discussed the doctrine of sovereign, or governmental, immunity and its applicability to state agencies and their employees, and wrote: "The wall of `governmental immunity' is almost invincible, made so by the people through their Constitution as interpreted by this Court." Hutchinson, 288 Ala. at 24, 256 So.2d at 283. In my opinion, that statement accurately describes the law of sovereign immunity, which is derived from § 14 of the Alabama Constitution of 1901.
Sovereign immunity has a an undeniable constitutional dimension. For that reason, I wrote the following in Hutchinson:
288 Ala. at 24, 256 So.2d at 285. I believe now, as I did when this Court decided Hutchinson, that only a constitutional amendment can disassemble the wall erected by § 14.
My views have not changed since I wrote the opinion in Hutchinson; therefore, I must respectfully dissent.
SEE, Justice (dissenting).
I dissent from the grant of the application for rehearing, from the substituted opinion, and from the judgment. I believe that the defendant State-employed physicians were entitled to discretionary-function (or "State-agent") immunity.
Discretionary-function immunity requires a balancing of the competing policies
The original per curiam opinion of November 24, 1999, which is today withdrawn, restated the rule concerning discretionary-function immunity as follows:
I concurred with this statement of the law. In the opinion substituted today on application for rehearing, the rule concerning discretionary-function immunity has been changed to read as follows:
I disagree with the significant and substantial change in the statement of the law given in the substituted opinion. First, the substituted opinion does not "restate"
I would apply the rule as stated in the original per curiam opinion of November 24, 1999, because the balancing of the policies of §§ 13, 14, and 43 of the Constitution of Alabama of 1901 weighs in favor of applying discretionary-function immunity to the physicians in this case. The people of Alabama have chosen to provide opportunities for higher education for the benefit of Alabama citizens. See Ala. Const. of 1901, art. XIV, § 256, amended by amend. no. 111, and § 264, amended by amend. no. 399. To further this effort, the Legislature has authorized the University to provide health-care services for students.
Thus, because the State-employed physicians were exercising a discretionary function and because it does not appear in this case that the burden on the plaintiff significantly outweighs the benefits of applying State-agent immunity to the defendant State-employed physicians, the balance of the § 13 and § 14 policies, in light of § 43, favors the application of discretionary-function immunity to these State-employed physicians in the performance of their University-related health-care responsibilities. Accordingly, I dissent from the conclusion of the substituted opinion that the trial court erred in entering the summary judgments in favor of the defendant Stateemployed physicians, and I dissent from the judgment reversing those summary judgments.
APPENDIX TO MAIN OPINION
A Listing of Alabama Cases Discussing the Doctrine of State-Agent Immunity
Bell v. Chisom, 421 So.2d 1239, 1240 (Ala.1982) (State Docks worker could not sue a coemployee); Tutwiler Drug Co. v. City of Birmingham, 418 So.2d 102 (Ala. 1982) (landowner could not sue city official over legislative matter); Deal v. Tannehill Furnace & Foundry Comm'n, 443 So.2d 1213 (Ala.1983) (swimmer injured while diving could not sue members of parks commission); Barnes v. Dale, 530 So.2d 770, 782-84 (Ala.1988) (victim of psychiatric patient could not sue official who allowed patient's release); Grant v. Davis, 537 So.2d 7 (Ala.1988) (person injured because of defect in road could not sue individual responsible for prioritization of road repairs); Phillips v. Thomas, 555 So.2d 81 (Ala.1989) (victim of swimming accident could sue individual who erroneously completed a checklist describing pool as fenced); Smith v. Arnold, 564 So.2d 873 (Ala.1990) (estate of psychiatric patient who committed suicide could not sue consultant); White v. Birchfield, 582 So.2d 1085 (Ala.1991) (victim of motor-vehicle collision could not sue deputy sheriff on basis of injuries caused by deputy's speeding to a crime scene); Point Properties, Inc. v. Anderson, 584 So.2d 1332 (Ala.1991) (landowner denied right to excavate could not sue official in individual capacity over attempt to rescind vacation of a road); Taylor v. Shoemaker, 605 So.2d 828 (Ala. 1992) (automobile-accident victim could not sue individual responsible for decision on whether to apply resources to removal of embedded rails in road); Pack v. Blankenship, 612 So.2d 399 (Ala.1992) (applicant could not sue individual over denial of a sewer permit); Smith v. King, 615 So.2d 69 (Ala.1993) (estate of mental-health inmate who committed suicide could not sue individual who had made subjective assessments about inmate's condition); Nance v. Matthews, 622 So.2d 297 (Ala.1993) (victim of school aide's failure to catheterize recuperating student as she had been instructed to do could not sue the aide's supervisor); Lennon v. Petersen, 624 So.2d 171 (Ala.1993) (victim could not sue coach for failure to recognize an injury soon enough); Hayes v. Walters, 628 So.2d 558 (Ala.1993) (victim of injury in gym class could not sue individual with indirect supervisory duties); Patton v. Black, 646 So.2d 8 (Ala.1994) (claim by student victim of tumbling accident presented jury question as to immunity of teacher); Roden v. Wright, 646 So.2d 605 (Ala.1994) (landowner claiming to be victim of tortious interference could not sue county commissioner over publication of official's opposition to proposed land usage); Lightfoot v. Floyd, 667 So.2d 56 (Ala.1995) (student claiming property improperly seized by Department of Public Safety investigator could sue investigator);
The substituted Rizk opinion of June 30, 2000, is published at 791 So.2d 911.
The substituted Wimpee opinion of September 1, 2000, is published at 791 So.2d 915.
472 U.S. at 522, 105 S.Ct. 2806 (citation omitted).