Can you sue the state? Not really, and recent court decisions make it harder

LITTLE ROCK, Ark. — Sovereign immunity sounds like something Queen Elizabeth enact on Harry and Meghan, but it can be a royal pain if you have a grievance with a state university’s teaching hospital. You can’t sue UAMS the same way you would a private hospital.

“It’s a grown man’s sport, I’ll tell you that. It’s a contact sport,” said Darren O’Quinn, a medical malpractice lawyer with his own Little Rock practice. He’s seen both sides. “Fifteen years on the defense side and the last 17 years on the patients’ side.”

In the past, he found himself on both sides at the same time. He taught a course in pharmacy law at the University of Arkansas, Little Rock’s Bowen School of Law. 

At the same time, he would bring cases against the University of Arkansas for Medical Sciences. Both are part of state government, and since the Arkansas Constitution says you can’t sue the government, he had to pick a side.

“Overall it’s a longstanding legal doctrine that you don’t sue the state,” O’Quinn said. “They have sovereign immunity. You can’t bring them to their own civil courts.”

RELATED: Hunter Biden agrees to pay child support to Arkansas woman

RELATED: The city of Augusta, Arkansas is ready for its big break

RELATED: Arkansas Supreme Court upholds death sentence case

When O’Quinn chose to focus on his practice, he steered clients with malpractice claims toward the doctors. Individually they can be sued because they are required to be insured. 

But if your gripe is with a nurse, a technician or even a janitor, they are state employees. You have to go a different route and file with the Arkansas Claims Commission.

“Which is a commission appointed by the governor, made up of state employees,” said O’Quinn. “So you have the state deciding its own case if you will.”

And that means a plaintiff never gets the case before a jury, something an attorney like O’Quinn laments. Juries are likely to show more sympathy to a fellow citizen even though that sympathy could cost the government we all share a ton of money.

A state supreme court decision in Jan. 2018 in Board of Trustees v. Andrews complicated the situation, possibly putting limits on even more cases that can go to court and which can go to the commission, according to O’Quinn.

Lawmakers broached a solution in 2019, but courts have ruled that this is a constitutional matter. To change it, people will need to vote on it. There’s an open question of voter appetite to deal with the issue at the ballot box.

“You get a few of those cases out there in the media and publicized and people would think ‘well, that’s just wrong,'” said O’Quinn.

It doesn’t get much easier if you try to sue a hospital with a religious affiliation. Hospitals like Baptist Health or CHI St. Vincent can claim immunity as a charitable organization.

There are some positives to going through the claims commission: it’s free. You can hire a lawyer if you want, but it won’t cost you anything to file. But another drawback: the commission gets about 1,300 claims a year.