“But Vestiges Remain”: The Anomaly of Sovereign Immunity for Public Hospitals

Abstract Public hospitals are critical institutions in the American healthcare delivery system. Yet because they are publicly owned, they sit apart from the rest of the medical sector, enjoying in some instances immunities from suit or significant limitations on damage recovery due to their public status. In today’s environment where states have legislated carefully balanced systems regulating medical malpractice liability, the prospect of immunity provides public hospitals and their employees, additional, in many cases more stringent protection from suit. This aspect of public hospital immunity has been obscured by the variety of systems from state to state governing immunity of public entities and their employees. The attention paid the subject appears to be in inverse relationship to the significance of public hospitals in our health care system. Public hospitals provide care for large segments of the population and are particularly important providers of care for poor, urban, and un- or underinsured citizens. They are centers offering specialized care and around which specialized care providers are organized in many communities. Public hospitals are particularly associated with transplant and burn centers. In addition, they are usually the highest-level trauma care centers in the communities they support. Much of what makes public hospitals critical to their communities relates to their propensity to be centers of education and training. They are often associated with medical schools, offering clinical training opportunities to medical students and are either partners with medical schools in offering graduate medical education or sponsors of such education independently.