Franklin v. U.S., 92-6056

• Citation: 992 F.2d 1492
• Decision Date: 05 May 1993
• Docket Number: No. 92-6056,92-6056
• Parties: Mrs. Verdie Mae FRANKLIN; Verdie Mae Franklin, Administratrix of the Estate of Lonnie B. Franklin, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1492

992 F.2d 1492

61 USLW 2730

Mrs. Verdie Mae FRANKLIN; Verdie Mae Franklin Administratrix of the Estate of Lonnie B Franklin, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 92-6056.

United States Court of Appeals Tenth Circuit.

May 5, 1993.

Michael T. Braswell, of Braswell & Adjei, Oklahoma City, OK, for plaintiff-appellant.

Timothy D. Leonard, U.S. Atty., Ronny D. Pyle, Asst. U.S. Atty., Oklahoma City, OK, for defendant-appellee.

Before McKAY, Chief Judge, HOLLOWAY, and BARRETT, Circuit Judges.

BARRETT, Senior Circuit Judge.

This appeal ¹ presents two somewhat thorny issues relating to the remedial scope and application of the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. Initially, we hold that the FTCA's intentional tort exclusion bars a claim for damages based on the unauthorized performance of surgery. We then conclude, however, that the operation of that exclusion is nullified in the present context by an immunity statute dealing specifically with medical tort claims arising out of the actions of Veterans Administration (VA) personnel.

I

Plaintiff Verdie Mae Franklin, on her own behalf and as administratrix of the estate of her late husband, Lonnie B. Franklin, appeals from a judgment of the district court dismissing this action under the FTCA. Mrs. Franklin brought suit against the United States claiming the death of her husband was the result of unauthorized surgery performed at a VA hospital in Oklahoma City, Oklahoma. The district court held that the action was in essence one for battery and therefore barred by the intentional tort exclusion contained in 28 U.S.C. § 2680(h), which specifies that the waiver of sovereign immunity effected by the FTCA does not extend to battery claims unless the conduct of investigative or law enforcement officers is involved. We review this question of subject matter jurisdiction de novo. See, e.g., Maddick v. United States, 978 F.2d 614, 615 (10th Cir.1992) (armed service personnel exception to FTCA waiver); Daniels v. United States, 967 F.2d 1463, 1464 (10th Cir.1992) (discretionary function exception (28 U.S.C. § 2680(a)) to FTCA waiver).

Within the scope of its waiver of sovereign immunity, the FTCA makes the United States liable on tort claims "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, and "in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b). Thus, we resolve questions of liability under the FTCA in accordance with the law of the state where the alleged tortious activity took place. See Flynn v. United States, 902 F.2d 1524, 1527 (10th Cir.1990). Our reading of state law in this regard is not constrained in any way by the views expressed by the district court. See Aldrich Enters., Inc. v. United States, 938 F.2d 1134, 1138 (10th Cir.1991) (applying Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), to reject "local judge rule" in FTCA context).

In contrast to questions of liability, however, the threshold jurisdictional issue whether the government has even consented to a certain type of tort suit, particularly as that issue entails interpretation of the various exceptions to the waiver of immunity listed in § 2680(h), is a matter of federal law. United States v. Neustadt, 366 U.S. 696, 705-06 & n. 15, 81 S.Ct. 1294, 1299-1300 & n. 15, 6 L.Ed.2d 614 (1961); Schwarder v. United States, 974 F.2d 1118, 1125 (9th Cir.1992); Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir.1991); see also Molzof v. United States, --- U.S. ----, ---- - ----, 112 S.Ct. 711, 714-15, 116 L.Ed.2d 731 (1992) (while liability issues are determined by state law, meaning of term employed in FTCA "is by definition a federal question"). In resolving this issue, we assume Congress proceeded from an understanding of established tort definitions when enacting and amending the various sections of the FTCA, and consequently look to the "traditional and commonly understood legal definition of the tort" arguably excluded by § 2680(h). Neustadt, 366 U.S. at 706, 81 S.Ct. at 1300. See Molzof, --- U.S. at ----, 112 S.Ct. at 716; Talbert, 932 F.2d at 1066.

In the general area of unauthorized medical treatment, the traditionally recognized theory of recovery has been that of battery. See, e.g., 61 Am.Jur.2d Physicians, Surgeons, Etc. § 197 (1981); Restatement of Torts § 13 cmt. e, § 16 cmt. a, illus. 1, § 18 cmt. e, illus. 1 (1934); Restatement (Second) of Torts § 13 cmt. c, § 18 cmt. d, illus. 1 (1965). More recently, however, courts and legislatures have recognized a particular subspecies of negligent unauthorized treatment, in which the patient admittedly consented to surgery, but on the basis of an inadequate disclosure of the medical considerations involved, such as potential risks, benefits, and alternative treatment options. This exception to common law battery, often referred to as the doctrine of informed consent, is evidently now also the prevailing view. See 61 Am.Jur.2d Physicians, Surgeons, Etc., § 199; W. Page Keeton et al., Prosser and Keeton on the Law of Torts (Prosser ) § 18, 120-21 (5th ed. 1984). Oklahoma recognizes and distinguishes these two distinct causes of action in a fairly representative manner:

If treatment is completely unauthorized and performed without any consent at all, there has been a battery. However, if the physician obtains a patient's consent but has breached his duty to inform, the patient has a cause of action sounding in negligence for failure to inform the patient of his options, regardless of the due care exercised at treatment, assuming there is injury.

Scott v. Bradford, 606 P.2d 554, 557 (Okla.1979) (footnotes omitted). The distinction drawn here between traditional medical battery and the negligence theory of informed consent is not merely formalistic; the informed consent doctrine has its own unique set of proof requirements touching on duty, proximate cause, and injury, see id. at 558-559, which are peculiarly appropriate to a negligence claim and inapplicable to the intentional tort. See generally Lounsbury v. Capel, 836 P.2d 188, 193-95 (Utah Ct.App.) (discussing substantial differences between battery and negligence claims in this context), cert. denied, 843 P.2d 1042 (Utah 1992); Gerety v. Demers, 92 N.M. 396, 406-11, 589 P.2d 180, 190-95 (1978) (same).

In light of the intentional tort exclusion set out in § 2680(h), this distinction between the doctrines of informed consent and medical battery is critical to the cause of action under review. If the negligence theory applies, redress against the government under the FTCA is available, see, e.g., Haley v. United States, 739 F.2d 1502, 1503, 1506 (10th Cir.1984); Valdiviez v. United States, 884 F.2d 196, 198, 199-200 (5th Cir.1989); Harbeson v. Parke Davis, Inc., 746 F.2d 517, 521-22 (9th Cir.1984), while if the battery theory controls, the action is specifically excluded from the government's waiver of sovereign immunity under the FTCA. See, e.g., Doe v. United States, 769 F.2d 174, 175 (4th Cir.1985); Lojuk v. Quandt, 706 F.2d 1456, 1460-61 (7th Cir.1983), appeal after remand, 770 F.2d 619, 622 (1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986); Moos v. United States, 225 F.2d 705, 706 (8th Cir.1955); Hernandez v. United States, 465 F.Supp. 1071, 1073-74 (D.Kan.1979). ²

The factual basis for the claim asserted in the two-page complaint was that, although Mrs. Franklin and her husband had both made it clear he was not to be operated on without her prior approval, surgery ultimately was performed without either's consent. Aplt. Addendum Vol. I, tab 1. This is unquestionably a medical battery claim. The complaint neither invoked the doctrine of informed consent by name nor alleged any of the elements of the tort. Thus, even though the complaint identified plaintiff's alleged damages as the "direct and proximate result of the negligence of the Defendant," id. at 2 (emphasis added), it stated a claim for battery, not negligence, and therefore ran afoul of the § 2680(h) exclusion.

However, before the action was dismissed, the district court entered a pretrial order, which supersedes the complaint as the basis for disposition of the case. See Hullman v. Board of Trustees of Pratt Community College, 950 F.2d 665, 667 (10th Cir.1991) ("The pretrial order supersedes the pleadings and controls the subsequent course of litigation."). By this time, a factual dispute had developed over whether Mr. Franklin had in fact signed a consent form prior to his surgery, though without the participation of his wife. In keeping with this development, Mrs. Franklin's contentions in the pretrial order included the new, alternative allegation that, even if her husband had given his written consent, it was ineffective because he lacked the mental capacity to give a valid consent at the time. Under this view, the surgery was unauthorized regardless of Mr. Franklin's actions, because Mrs. Franklin's consent was not obtained. See generally Aplt. Addendum Vol. I, tab 2. On appeal, Mrs. Franklin argues that the incorrect assessment of her husband's mental competence, and the consequent failure to obtain her substituted consent, constituted negligence giving rise to liability unaffected by § 2680(h).

This argument actually raises two separate questions that must be addressed sequentially. First, should a claim of unauthorized surgery based on incapacity to consent be treated as merely one variant of the lack-of-consent theory and, thus, a medical battery, or should it be grouped with uninformed consent claims under the rubric of negligence? ³ Applying a similar medical battery/informed consent distinction from Illinois law, the Seventh Circuit held in Lojuk v. Quandt, 706 F.2d 1456, that by asserting "because of his mental state he was unable to consent, ... plaintiff in effect...