How Lawyers Deal with Government Sovereign Immunity for Wrongful Death and Personal Injury

Example:  An IV catheter mistake leads to wrongful death

Bethany Johnson was a patient at a Kansas City, Missouri hospital.  She was undergoing chemotherapy to treat her cancer.  Her physicians decided to give her the cytotoxic chemotherapy drug Taxol through a peripheral vein.

• They failed to check for leaks.
• They failed to check for a back flow.

Ms. Johnson informed the nurses she was experiencing pain and burning in her arm that seemed to be spreading.

• They continued giving the cytotoxic chemotherapy drug in spite of her report.

Ms. Johnson then reported blisters and ulcers on her arm that seems to be spreading.  She felt sick like she had the flu.

• Her nurses’ aides and the physicians did not switch to a central vein catheter.
• Johnson was not treated.

Her extravasation injury led to the amputation of her right arm.  This extended her hospital stay, caused an infection, and ultimately her death.  Ms. Johnson was staying at a hospital owned by the government.

Can her survivors recover for their loss?

The History of Governmental Immunity from Wrongful Death and Injury lawsuits

“Sovereign immunity” has a long historical tradition in our court system.  We adopted our laws from the British common court system.  The British adopted its laws from Rome and the Catholic Church.

Each of these systems lived by the principle that “the king can do no wrong.”  See Guy Seidman, The Origins of Accountability: Everything I Know About Sovereign Immunity, I Learned from King Henry the Third, 49 St. Louis U. Law J. 393 (2004).  In short, the government cannot be sued in court for money unless it consents.

Governments Have Immunity from Wrongful Death Claims In Most Circumstances

Our legislature has enacted statutes following up injury accidents and wrongful death claims against the government.  This is codified in R.S.Mo. § 537.600.

The sovereign immunity statute for wrongful death and injury lawsuits adopts the immunity of government as existed in the common law of courts prior to 1977.

Two Exceptions to Sovereign Immunity

“Sovereign immunity is the rule rather than the exception.”  Benoit v. Mo. Hwy. & Trans. Comm’n, 33 S.W.3d 663,673 (Mo.App. 2000).

However, our statute carves out two exceptions where the government can be sued for wrongful death or injury.  These exceptions are as follows:

1. Injuries caused by the negligence of a public employee while operating an automobile within the scope of their employment.
2. Injuries caused by the condition of a public property.  This is when the premises is in a dangerous condition at the time of injury.  The dangerous condition must have been created by a reasonably foreseeable risk of harm and be the type of injury that the victim actually suffered.  The employees had to have actual or constructive notice of the condition with sufficient time to protect the victim but failed to do so.

Municipal City Governments Only Get Partial Immunity

State governments get full 100% immunity when they don’t carve out an exception for themselves.  Cities are not so lucky.  Municipalities only get sovereign immunity when they are conducting a “governmental function.”  Richardson v. City of St. Louis, 293 S.W.3d 133,136-37 (Mo.App. 2009).  Cities do not get immunity when they are merely providing a “proprietary function.”  Crouch v. City of Kansas City, 444 S.W.3d 517,521 (Mo.App. WD 2014).  This means a wrongful death or injury victim can sue a city if its negligent act was a proprietary function.

What Is a “Governmental” vs. “Proprietary” Function?

The distinction between a governmental function and a proprietary function for a wrongful death or a personal injury case against a city is the difference between you being able to have your lawsuit and collect money compensation and not having a lawsuit at all.  The courts are highly inconsistent in making the distinction between governmental and proprietary functions.  Jones v. State Hwy. Comm’n, 557 S.W.2d 225,229 (Mo. banc 1977).  Worse, they even produce “uneven and unequal results which defy understanding.”  Id.

Courts look to the nature of what the government is doing at the time it caused the injury to determine whether it is a governmental or a proprietary function. Courts look at what that government person was actually doing that caused the injury and why they were doing it.  St. Joseph’s Light & Power Co. v. Kaw Valley Tunneling Inc., 589 S.W.2d 267 (Mo. banc 1979).  The type of lawsuit does not matter.

When Is It a “Governmental Function?”

A governmental function that will allow the city to claim immunity from a wrongful death lawsuit or a personal injury claim will focus on whether the person doing the act was an agent of the state government.  Bennartz v. City of Columbia, 300 S.W.3d, 259 (Mo.App. W.D. 2009). Look to who they were benefiting.

• Were they benefiting the general public?
• Were they benefiting the common good of all?
• Was the person keeping the peace by enforcing laws and ordinances?
• Was the person preserving public health?

Kunzie v. City of Olivette, 184 S.W.3d 574 (Mo. banc 2006); Parish v. Novus Equities Co., 231 S.W.3d 242 (Mo. App. 2007).

The city can claim immunity and dismiss your lawsuit if it can convince the court it was acting merely as an agent of the state government for the functions outlined above.  It will claim that no exception is outlined in Mo. Stat. § 537.600 or anywhere else.  The city will move to get a dismissal of your wrongful death or personal injury case.

What is a “Proprietary” Function?

A proprietary function does not have sovereign immunity.  The city can be sued for merely providing a proprietary function that injures or kills.  These functions are those that benefit or profit the municipality itself in its corporate capacity.  In other words, they benefit or provide services or convenience to the city’s individual citizens.

Lawyers:  Do Not Forget This!

A lawyer bringing a wrongful death or a personal injury case against a city municipal government must remember; governmental sovereign immunity is not an affirmative defense.  Do not merely file your petition like normal and wait for an affirmative defense to be pled out under Rule 55.27.  You will have your petition dismissed.

The victim has a requirement that they must plead, not only allegations of the waiver of sovereign immunity, but also the specific facts that give the victim the exception to sovereign immunity.  Richardson v. City of St. Louis, 293 S.W.3d 133,137 (Mo.App. 2009).  It is the victim’s burden to demonstrate that the city government was engaged in a proprietary function at the time that the person was wrongfully killed or injured.  Cover this in advance before you get a motion to dismiss.

Conclusion

One can see from the case of Ms. Johnson that there is a vast difference between claims made for extravasation, wrongful death, personal injury, and other situations based upon the type of hospital or medical care provider that did the error.  City hospitals may have partial immunity.  State hospitals may have complete immunity.  The specific but critical distinction must be prepared for and covered in advance.