Court Examines Sovereign Immunity Protection for Doctors

In Martinez v. Maruszczak, 123 Nev. Adv. Op. No. 43 (October 11, 2007), the Nevada Supreme Court considered " the extent to which sovereign immunity protects publicly employed physicians from common-law liability for medical malpractice."

The Court's analysis turned "on Nevada's statutory waiver of sovereign immunity and a statutory exception to that waiver, which immunizes state actors from liability for actions grounded upon the state actor's exercise or performance of a discretionary function or duty. Because Nevada jurisprudence concerning the scope of the discretionary-function exception is unclear, and because Nevada's statutory language mirrors the Federal Tort Claims Act," the Court adopted a two-part federal test for determining when the discretionary-function exception to the general waiver of governmental immunity applies.

"Under this two-part test, state-employed physicians enjoy immunity from medical malpractice liability only when their allegedly negligent acts involve elements of judgment or choice, and the judgment or choice made is of the kind that the discretionary-function exception was designed to shield, that is, a judgment or choice involving social, economic, or political policy considerations.

If those two requisites for discretionary-function immunity are not satisfied, state-employed medical professionals are liable for malpractice to the extent of the statutory cap that applies to damages awards in tort actions against state employees."