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MARCH 02, 1988




This is an appeal from a ruling of the Circuit Court

of Hinds County dismissing the plaintiff's tort action as to the defendant Dr. Chawla on grounds of sovereign immunity.

 The plaintiffs are the surviving heirs of the late Wesley Marshall. Their complaint alleges that on October 25, 1980, Wesley Marshall became violently ill with a severe headache and vomiting. His wife, Margaret Marshall, took him to the Kuhn Memorial State Hospital, a state eleemosynary institution located in Vicksburg. Wesley Marshall was admitted to the emergency room; the attendants called Dr. Anwant Chawla, who was on duty at the time. Dr. Chawla did not come to the emergency room to examine Marshall, but told the staff to administer dramamine to him. This was done, and Marshall was discharged without further treatment at about 2 o'clock in the morning on October 26. He was taken home, where he suffered a stroke and died approximately ten hours later.

 The plaintiffs filed their complaint in the Circuit Court of Hinds County against the Board of Trustees of the State Eleemosynary Institutions; the hospital itself; Dr. Chawla; and hospital supervisors Dr. K. S. Potnis and Charles Harper, charging them with negligence which was the proximate cause of Wesley Marshall's death. The Board of Trustees, the hospital and Charles Harper moved to dismiss on grounds of sovereign immunity. This motion was granted on May 7, 1984. Dr. Potnis moved to dismiss on the grounds that he was acting in the exercise of duties where discretion and decision-making were required and he was thus immune from suit on the basis of public official immunity. This motion was granted on May 8, 1984. Finally, Dr. Chawla moved to dismiss on grounds of sovereign immunity. On December 6, 1984, the trial court granted this motion announcing it was relying on this Court's decision in Hudson v. Rausa, 462 So.2d 689 (Miss. 1984). Feeling aggrieved, the plaintiffs are appealing as to Dr. Chawla; the other defendants are not parties to this appeal.


 The only issue in this appeal is whether Dr. Chawla was protected from liability by the doctrine of sovereign immunity or by the qualified immunity given to public officials acting in a discretionary capacity within the scope of their duties. The landmark decision of Pruett v. City of Rosedale, 421 So.2d 1046 (Miss. 1982), provided that sovereign immunity would be abolished only for causes accruing after July 1, 1984; causes accruing before that date would be governed by the traditional common law immunities. In the present case, the cause accrued in 1980.

 Therefore, the plaintiffs action is governed by the traditional common law immunities and is unaffected by the rules laid down in Pruett and by the subsequent legislative enactments in the realm of sovereign immunity. Properly speaking, the present case does not involve sovereign immunity at all, since that doctrine in the strict sense applies only to the state government and its subdivisions, rather than to their individual employees. At common law, however, Mississippi public officials did enjoy a qualified immunity for injuries inflicted by them while acting within the scope of their duties. Like many other states, Mississippi has commonly applied a distinction between the" discretionary "and" ministerial "duties of such officials; as a rule, officials are protected from suit if they were acting in a" discretionary "capacity. E.g., Karpovs v. Mississippi, 663 F.2d 640, 647, (5th Cir. 1981); Davis v. Little, 362 So.2d 642, 645 (Miss. 1978); State, ex rel. Russell v. McRae, 169 Miss. 169, 179, 152 So. 826, 828 (1934). The prevailing test for the classification of these deeds was set forth in Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935):

 The most important criterion . . .is that if the duty is one that has been positively imposed by law and its performance required at a time and manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion, the act being discharged thereof is ministerial.

 171 Miss, at 864-65, 158 So. at 923.

 Otherwise, the act is presumably discretionary. The result has been a fairly broad application of the public official immunity principle in Mississippi. Hudson v. Rausa, 462 So.2d 689 (Miss, 1984), the case on which the trial judge relied, illustrates this. Rausa was a physician employed by the State Board of Health charged with carrying out a program to prevent the spread of tuberculosis. Pursuant to this program he prescribed a certain drug to a man named Hudson. The drug in question sometimes produced hepatitis as a side effect in certain individuals; Hudson proved to be one of these individuals and died of hepatitis after the drug was administered to him. His survivors sued under the wrongful death statute and Rausa claimed sovereign immunity as a defense. The Hudsons responded that while the formation of the overall health policy against tuberculosis might have been" discretionary ", particular actions in carrying it out, such as the treatment of specific

 individuals, were ministerial. The court rejected this narrow view, saying" we believed the discretion given to the defendants applied not only to their decisions with instituting a program for control, but also the treatment administered in carrying out such policies. "The court came very close to saying that" all "medical decisions would be immunized from suit if they occurred in the context of a state institution because" the administration of medical treatment involves the exercise of considerable professional judgment and its discretion. . . . "Hudson, 462 So.2d at 695-96.

 It is obvious that if Hudson controls this case the dismissal of the action against Dr. Chawla was proper and the appellants must lose. The appellants attempt to distinguish Hudson by arguing that Hudson was immunized from liability by his status as a health department official implementing a health policy enacted for the good of the people of the state as a whole, as opposed to Dr. Chawla who was" simply a physician employed by the state hospital to treat the general public and his actions of the treatment of patients was subject to the same standards of care as other physicians. "This interpretation cannot be reconciled with the Hudson court's finding that the physician was immunized for particular acts of medical treatment. Nor is it clear why the distinction between a physician performing medical treatment in his capacity as a county health official is distinct in any legally significant way from the same physician performing medical treatment as a staff member in a state hospital.

 The appellants do not, in so many words, ask this Court to overrule Hudson. They do, however, ask this Court to hold that the" discretion "exercised by a doctor in the normal practice of medicine is not of the type which should immunize a doctor in public service from personal liability. As ...

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