This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Violet Tousignant,



St. Louis County, Minnesota, et al.,


Filed December 8, 1998


Davies, Judge

St. Louis County District Court

File No. C497602031

David L. Weidt, P.O. Box 630, Duluth, MN 55801-0630 (for respondent)

Alan L. Mitchell, St. Louis County Attorney, Amy Hunt Kuronen, Assistant County Attorney, 100 North Fifth Ave. W., #501, Duluth, MN 55802-1298 (for appellants)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Amundson, Judge.



Appellants assert that vicarious official immunity bars respondent Violet Tousignant's medical malpractice and negligence claims. Appellants challenge the denial of their motion for summary judgment. We affirm.


Following surgery for a broken hip and wrist, respondent Violet Tousignant was admitted to appellant Chris Jensen Nursing Home, a facility owned by appellant St. Louis County. Before her admission, Tousignant's doctor at St. Luke's Hospital had prepared an "Interagency Referral Form" providing doctor's orders concerning patient care. The form contained conflicting directions regarding the use of restraints. In one section, the doctor ordered that vest restraints be used "prn" (as needed), but in another section the doctor ordered "vest restraint on at all times." The nursing home's policy manual required precise physician orders for the use of restraints.

Within hours after Tousignant's admission, nursing home staff faxed a request to the hospital for clarification of the patient care directions. Before receiving a response, the staff left Tousignant unrestrained and unattended in her wheelchair. She fell from the chair, breaking her other hip.

Tousignant sued Chris Jensen Nursing Home and St. Louis County, alleging medical malpractice and negligent failure to restrain. Appellants' motion for summary judgment was denied. This appeal followed.


Appellants argue that official immunity protected the staff's decision not to restrain Tousignant before receiving clarification of the conflicting medical orders. Because no facts are disputed, whether official immunity applies is a question of law for this court to review de novo. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

Official immunity is a common law principle that protects from personal liability or damages "a public official charged by law with duties which call for the exercise of his judgment or discretion," unless the official is guilty of willful or malicious wrongdoing. Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976). A government employee's official immunity may be vicariously applied to his or her governmental employer. Pletan v. Gaines, 494 N.W.2d 38, 42-43 (Minn. 1992). Vicarious official immunity is applied "where the threat of liability against the government would unduly influence government employees from exercising independent judgment in pursuit of legitimate public policy choices." S.L.D. v. Kranz, 498 N.W.2d 47, 51 (Minn. App. 1993).

Official immunity shields only government actions that involve the exercise of discretion or judgment ("discretionary" acts); there is no immunity for the performance of acts that simply implement a decision or policy ("ministerial" acts). Janklow v. Minnesota Bd. of Exam'rs, 552 N.W.2d 711, 716 (Minn. 1996). In deciding whether an act is ministerial, the court must consider whether "the nature, quality and complexity of the decisionmaking process" justifies granting official immunity. Larson v. Independent Sch. Dist. No. 314, 289 N.W.2d 112, 120 (Minn. 1979). A duty is ministerial "when it is absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." Elwood v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937)). When it applies, official immunity shields public officials from both malpractice and negligence claims; we, therefore, do not differentiate between respondent's claims in evaluating its applicability. See Terwilliger v. Hennepin County, 561 N.W.2d 909, 911-12 (Minn. 1997) (evaluating immunity on all tort claims together); Elwood, 423 N.W.2d at 673 (same).

Appellants argue that the nursing home staff's implementation of the policies regarding use of restraints required a high degree of professional expertise, balancing the safety of residents with legal requirements prohibiting unwarranted restraint. Appellants contend that, because there is no "absolute, certain and imperative duty" regarding the restraint of patients in a nursing home setting, the staff's actions were an exercise of discretion and professional judgment and, thus, fall under the umbrella of official immunity.

Appellants misconstrue the nature of official immunity by suggesting that, to be ministerial, an act needs to involve no exercise of judgment. A government official's decision can involve some degree of judgment and discretion and still be a ministerial act. Elwood, 423 N.W.2d at 677 ("Some degree of judgment or discretion will not necessarily confer discretionary immunity on an official."). Patient care decisions made in the nursing home require professional expertise, but those decisions are constrained by applicable policies. In Terwilliger, the supreme court declined to extend official immunity to employees of a county medical facility for their decision not to hospitalize a patient who later committed suicide.

[D]ecisions of this kind--no matter how difficult and no matter how much professional judgment is required--do not involve the discretion protected by official immunity; they only implement Hennepin County's established public policy of providing treatment for its mentally ill citizens.

561 N.W.2d at 914.

Appellants contend that fear of scrutiny and lawsuits will hinder county nursing home staff in making proper care decisions for their patients. In determining the applicability of official immunity, we normally consider the degree to which the threat of liability would unduly influence government practices. See S.L.D., 498 N.W.2d at 50 (immunity protects public officials from a fear of liability that might deter independent performance of duties). But it is difficult to see how ordinary liability for medical malpractice will unduly hinder patient care at county-owned nursing homes. Private health care providers are subject to such scrutiny. Providing a malpractice shield to public health care professionals would be inequitable and we decline to do so. We see no reason to deprive a patient of a malpractice remedy simply because her health care was provided by a public entity.