HUNSTEIN, Chief Justice.
We granted certiorari in this case to determine whether physicians employed as faculty members at the Medical College of Georgia ("MCG") were entitled to official immunity in treating a patient at MCG's Children's Medical Center. Appellees Kenneth Jones and Clara Ramon, individually and as parents and next friends of their minor son, ("Plaintiffs") filed a medical malpractice action against Appellants Prem Singh Shekhawat, M.D. and Wayne Mathews, M.D., along with other defendants, arising from treatment rendered to Plaintiffs' child at the Children's Medical Center in December 2003. The trial court granted summary judgment to both Appellants, concluding that they were entitled to official immunity under the Georgia Tort Claims Act. The Court of Appeals reversed, finding a genuine issue of material fact as to whether Appellants, in treating Plaintiffs' child, were acting within the scope of their employment with the State under the analysis utilized by this Court in Keenan v. Plouffe, 267 Ga. 791, 482 S.E.2d 253 (1997). Jones v. Allen, 312 Ga.App. 762, 720 S.E.2d 1 (2011). We granted certiorari to review Keenan's application, and we now conclude that Keenan must be overruled, because it conflates our standard for official immunity with that for sovereign immunity. Utilizing the proper analysis, we hold that Appellants were entitled to official immunity because they were acting within the scope of their state employment in rendering the medical care at issue. We therefore reverse the judgment of the Court of Appeals.
"On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 273 Ga. 715, 717-718(4), 545 S.E.2d 875 (2001). So viewed, the relevant evidence shows as follows.
On December 28, 2003, Plaintiffs' newborn son suffered a life-threatening condition and was transferred to MCG from another hospital. Dr. Shekhawat, the MCG neonatologist who was on call, directed the transport team that brought the child to MCG, personally treated the child when he arrived, and supervised a resident fellow who performed follow-up treatment. The child underwent surgery in the early morning hours of December 29, and Dr. Mathews, the on-call anesthesiologist, assisted with the operation. Prior to the surgery, a resident anesthesiologist intubated the child under Dr. Mathews' supervision. Following surgery, the child's endotracheal tube became unsecured, resulting in a dramatic drop in his heart rate and requiring emergency life-saving measures. The child suffered significant permanent disabilities, which Plaintiffs allege are the result of the medical team's failure to ensure the child was adequately oxygenated during intubation.
At the time they treated the child, Dr. Shekhawat and Dr. Mathews were both employed as associate professors of medicine at MCG by the Board of Regents of the University System of Georgia. As MCG faculty physicians, defendants' job responsibilities
1. The doctrine of official immunity in its current form originates with the ratification and enactment of a constitutional amendment generally reinstating sovereign immunity to the State. See Charles N. Kelley, Jr., Peach Sheets, Georgia Tort Claims Act: Provide a Limited Waiver of Sovereign Immunity, 9 Ga. St. U.L. Rev. 349, 349-350 (1992). Prior to the 1990 amendment, the State had waived its sovereign immunity as to claims covered by liability insurance, though only up to the dollar amount of coverage provided. Id. at 349; see Martin v. Dep't of Public Safety, 257 Ga. 300, 357 S.E.2d 569 (1987). With the amendment's enactment, this waiver of immunity was removed and sovereign immunity was generally restored "[e]xcept as specifically provided by the General Assembly in a State Tort Claims Act." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). See id. at (a) (General Assembly may waive sovereign immunity by enacting a State Tort Claims Act). In 1992, our legislature enacted the Georgia Tort Claims Act ("GTCA"), OCGA §§ 50-21-20 to -36. Ga. L. 1992, p. 1883, § 1.
Expressly framed as an effort to balance the unfairness that immunity visits on injured parties with the State's interest in protecting the public purse from liability arising from the array of functions that government performs, the GTCA waives the State's sovereign immunity in limited circumstances, in accordance with prescribed procedures. See OCGA § 50-21-21; see also Kelley, 9 Ga. St. U.L. Rev. at 352 (explaining GTCA's detailed procedural requirements). As the "exclusive remedy for any tort committed by a state officer or employee," OCGA § 50-21-25(a), the GTCA permits suits against the State for the torts of state officers and employees when committed "while acting within the scope of their official duties or employment." OCGA § 50-21-23(a).
Closely intertwined with the GTCA's restoration of sovereign immunity is its recognition of official immunity. While sovereign immunity protects from tort liability the State itself, including its agencies and instrumentalities, official immunity protects state employees from being sued in their personal capacities. Donaldson v. Dep't of Transp., 262 Ga. 49, 56, 414 S.E.2d 638 (1992) (Hunt, J., concurring). Thus, the GTCA, while allowing tort suits to proceed against the State within its prescribed parameters, also makes clear that any liability rests not with state employees in their individual capacities but rather with "the state government entity for which the state officer or employee was acting." OCGA § 50-21-25(b). See also Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d) (with limited exceptions, "officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions").
The result is that, where a state employee commits a tort while acting within the scope of his employment with the State, the State through the employing government agency may be held liable, but the individual state employee may not. See Riddle v. Ashe, 269 Ga. 65(2), 495 S.E.2d 287 (1998). Where the alleged tortfeasor was not acting within the scope of his employment, however, the State's sovereign immunity remains intact, and any recourse must be sought against the tortfeasor personally. See OCGA § 50-21-25(a) (state officer or employee does not enjoy immunity "if it is proved that the officer's or employee's conduct was not within the scope of his or her official duties or employment"); see also Donaldson, 262 Ga. at 56, 414 S.E.2d 638 (Hunt, J., concurring) (distinguishing between liability in state employee's official capacity versus liability in personal capacity).
As this explication of the statute makes clear, the sole issue in determining whether an individual state employee may be liable as
Unfortunately, our appellate jurisprudence on official immunity in the context of state-employed physicians has for the past decade and a half strayed considerably from this straightforward analysis. The genesis of this misguided path was this Court's opinion in Keenan v. Plouffe. In Keenan, which also involved malpractice claims against an MCG physician, we held that the state-employed physician did not enjoy official immunity, on the ground that the physician's conduct in treating patients called for "the exercise of his medical (as opposed to governmental) discretion" and involved "distinct obligations to [the patient] that were independent of his official state duties." 267 Ga. at 791, 793, 482 S.E.2d 253. Summing up its rationale, this Court stated:
Id. at 795, 482 S.E.2d 253. Concluding that the purposes of official immunity were not served by extending immunity under the circumstances presented, we then posted an important caveat:
Id. at 796, n. 17, 482 S.E.2d 253.
Since Keenan was decided, this Court and the Court of Appeals have struggled with its scope and application. Shortly after Keenan, we held that the "key factor in Keenan which prevented reliance on official immunity was that the patient was a private patient." Harry v. Glynn County, 269 Ga. 503, 505(2), 501 S.E.2d 196 (1998). See also Schulze v. DeKalb County, 230 Ga.App. 305, 308(3), 496 S.E.2d 273 (1998) (noting Keenan's "limited scope" in declining to apply it to the county-employed paramedics). More recently, the Court of Appeals has construed Keenan as holding that official immunity is abrogated only where the state-employed physician is treating "private-pay" patients and those patients had sought care from that particular physician, rather than simply from the state facility at which he worked. Porter v. Guill, 298 Ga.App. 782(1), 681 S.E.2d 230 (2009).
These cases show that the official immunity analysis for state-employed physicians has
A close review of Keenan reveals its analytical flaw. Specifically, this Court appears to have conflated the test for official immunity with that for sovereign immunity in distinguishing between medical and governmental discretion and between the physician's duty to the patient and his duty to the State. Where the State agency is the defendant and sovereign immunity is at issue, the analysis does depend on whether the employee who committed the tort was exercising a "discretionary function," which the GTCA defines as "a function or duty requiring a state officer or employee to exercise his or her policy judgment." OCGA § 50-21-22(2). Thus, we have held, in assessing the sovereign immunity of a state agency with respect to alleged medical malpractice of agency staff, that "medical decisions about the proper diagnosis and treatment of [a patient] do not involve policy judgments based on social, political, or even economic factors." Edwards v. Dep't of Children & Youth Servs., 271 Ga. 890, 893, 525 S.E.2d 83 (2000). However, the GTCA's "discretionary function" exception is relevant only to the issue of sovereign immunity, and not to the issue of official immunity, which depends entirely on the state employee's scope of employment.
In undertaking our analysis in Keenan, we appear to have erroneously relied on a Virginia Supreme Court decision involving similar facts, James v. Jane, 221 Va. 43, 282 S.E.2d 864 (Va.1980). See Keenan, 267 Ga. at 794-795, 482 S.E.2d 253. Reliance on James, however, was misplaced, as James was decided under the doctrine of sovereign immunity as it existed under Virginia law at the time. See James, 282 S.E.2d at 869. While the facts and policy arguments in James were similar to those in this case, the difference is that here we are bound by the plain language of the GTCA, which apparently had no analogue in Virginia law at that time.
As this Court has noted before:
City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 732-733, 13 S.E. 252 (1891). Having recognized the analytical flaw in Keenan and our appellate courts' subsequent efforts to limit its application, we now overrule it. Accordingly, our analysis of a physician's official immunity under the GTCA shall proceed exclusively on the basis of whether the physician was acting within the scope of his state employment in performing the treatment that is the subject of the malpractice action.
Framed in these terms, the issue in this case is easily resolved. Appellants were acting within the scope of their employment with MCG. Both physicians attested to this fact in sworn affidavits, and the evidence clearly reflects that both physicians were performing the regular duties of their employment, during their regular hours of employment, at their regular site of employment. Though Plaintiffs attempt to obscure the issue of Appellants' employment status with evidence regarding the complex affiliation agreement among the entities comprising the MCG academic medical center, this evidence fails to alter the simple truth that Appellants were acting within the scope of their state employment in rendering the treatment at issue here. Therefore, Appellants are entitled to official immunity.
2. As we have noted, the effect of recognizing official immunity does not necessarily leave the injured plaintiff without recourse. While official immunity relieves the state employee of personal liability, the injured plaintiff may still seek relief against the "state government entity for which the state officer or employee was acting," OCGA § 50-21-25(b);
3. As a final note, we observe that this case does not present a situation involving physicians who are state-employed but also engage in some type of outside private practice. In theory, one can envision a scenario in which a state-employed physician, while "off-duty" from the State, might practice in a separate clinic, which is owned, operated, and administered independently of the State; bills and collects payments for its medical services with no State involvement; and insures its physicians with private malpractice coverage or self-insurance.
Judgment reversed.
All the Justices concur, except THOMPSON, P.J., who concurs specially.
THOMPSON, Presiding Justice, concurring specially.
Although I agree with much of what is said in the majority opinion, I write separately because I see no need to overrule Keenan v. Plouffe, 267 Ga. 791, 482 S.E.2d 253 (1997). Simply put, while much of the discussion in Keenan strayed from a proper analysis of official immunity under OCGA § 50-21-25(a), its holding can be limited to its facts,
Keenan proffered several reasons for concluding that Dr. Plouffe was not acting in the scope of his official state duties when he treated his patient. However, none of these reasons was viewed as a talisman and we subsequently made it clear that "[t]he key factor in Keenan which prevented reliance on official immunity was that the patient was a private patient." Harry v. Glynn County, 269 Ga. 503, 505, 501 S.E.2d 196 (1998) (emphasis added). That is because Ms. Keenan sought out and engaged Dr. Plouffe who agreed to be employed as her physician. Compare Keenan, supra at 793, 482 S.E.2d 253, with Porter v. Guill, 298 Ga.App. 782, 786, 681 S.E.2d 230 (2009).