Geiger, In re

• Decision Date: 14 May 1997
• Docket Number: No. 95-3913,95-3913
• Citation: 113 F.3d 848
• Parties: , 37 Collier Bankr.Cas.2d 1727, Bankr. L. Rep. P 77,370 In re Paul W. GEIGER, Debtor. Paul W. GEIGER, Appellant, v. Margaret KAWAAUHAU and Solomon Kawaauhau, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 848

113 F.3d 848

65 USLW 2746, 37 Collier Bankr.Cas.2d 1727,

Bankr. L. Rep. P 77,370

In re Paul W. GEIGER, Debtor Paul W. GEIGER, Appellant, v. Margaret KAWAAUHAU and Solomon Kawaauhau, Appellees.

No. 95-3913.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1997.

Decided May 14, 1997.

Laura K. Grandy, Belleville, IL, argued (Kevin J. Stine, Belleville, IL, on the brief), for appellant.

Norman W. Pressman, St. Louis, MO, argued (Teresa A. Generous, on the brief), for appellee.

Before ARNOLD, Chief Judge, and McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This case raises the question whether a judgment debt resulting from a medical malpractice action is dischargeable in bankruptcy. The Kawaauhaus maintain that it is not, because it is a "debt ... for willful and malicious injury by the debtor," which 11 U.S.C. § 523(a)(6) exempts from discharge. The bankruptcy court agreed with the Kawaauhaus, see In re Geiger, 172 B.R. 916 (Bankr.E.D.Mo.1994), and the district court affirmed that judgment in an unpublished opinion. On further appeal, a unanimous panel of this court reversed, relying on Cassidy v. Minihan, 794 F.2d 340 (8th Cir.1986). The panel observed that the worst that might even colorably be said of the debtor's behavior was that it was reckless, and that since there was no evidence that he intended to harm his patient, it was not possible to say that his actions were either willful or malicious, much less both. See In re Geiger, 93 F.3d 443 (8th Cir.1996).

We granted the Kawaauhaus' subsequent suggestion for rehearing en banc, and we reverse the judgment of the district court.

I.

Mrs. Margaret Kawaauhau sought treatment from Dr. Paul Geiger after she injured her foot. He admitted her to the hospital for treatment for thrombophlebitis, ran tests that suggested the presence of an infection, and concluded that continuing the oral tetracycline that he had already prescribed would be an effective treatment for her condition. He eventually prescribed oral penicillin in place of the tetracycline. Dr. Geiger then departed on a business trip, leaving his patient in the care of other physicians, who began to administer intramuscular penicillin and decided to transfer her to an infectious disease specialist. When Dr. Geiger returned from his trip, however, he discontinued all antibiotics because he believed that the infection had run its course. A few days later, Mrs. Kawaauhau's condition deteriorated and her leg had to be amputated below the knee. When the Kawaauhaus succeeded in an action for malpractice against Dr. Geiger, he petitioned for bankruptcy.

In an effort to prove that the malpractice judgment was not a dischargeable debt, the Kawaauhaus introduced into evidence before the bankruptcy court certain portions of the transcript of the trial of the malpractice action. The transcript revealed that Dr. Geiger had admitted at trial that the proper treatment for the streptococcus infection with which he was faced was intravenous penicillin, that he knew that at the time, but that he had nevertheless administered the penicillin orally partly because his patient had frequently complained about medical expenses (he had been treating her for a number of years) and had specifically expressed a desire to avoid costly medicines. In response to a direct question about whether he acknowledged that intravenous penicillin was "the proper standard of care in the circumstances," Dr. Geiger answered that he did.

The Kawaauhaus, without objection from Dr. Geiger, also introduced into evidence before the bankruptcy court the deposition of Dr. Peter Halford, a physician hired to examine both Mrs. Kawaauhau's medical records and Dr. Geiger's testimony in the original trial and to render expert opinions based on them. In his deposition, Dr. Halford first offered his opinion that Dr. Geiger's treatment of Mrs. Kawaauhau had been negligent in at least four particulars: He had initially misdiagnosed her condition as phlebitis, or inflammation of the veins in her leg, rather than as an infection; he had initially given her the wrong antibiotic (tetracycline instead of penicillin); he had started penicillin too late, and then had administered it by mouth rather than intravenously; and he had stopped administering all antibiotics for a time. But Dr. Halford agreed with counsel that Dr. Geiger's most egregious error was that he had considered the relative costs of administering oral and intravenous penicillin in deciding which treatment to choose. It is mainly on the foundation of this last exchange that the Kawaauhaus have erected their theory that Dr. Geiger acted willfully and maliciously, because, the argument runs, he intentionally rendered substandard care to Mrs. Kawaauhau, an act, the Kawaauhaus say, that necessarily led to her injury. "It is this intentional substandard treatment of the plaintiff," the Kawaauhaus said before the bankruptcy court, "in conjunction with the other misfeasance, that is the crux of our case."

Whether, in forming his opinion concerning the propriety of Dr. Geiger's treatment, Dr. Halford believed that Mrs. Kawaauhau had requested that Dr. Geiger cut costs, Dr. Halford did not say, and the bankruptcy court made no finding on the matter. Dr. Halford observed only that "cost certainly plays a role in what we choose if we have an alternative that is more economically feasible, but cost should have no role in directing our therapeutic efforts when you are dealing with life and death." Dr. Halford then reviewed the portion of Dr. Geiger's trial testimony in which he admitted knowing, "in fact, that intravenous penicillin was the appropriate standard of care for this type of problem and yet he intentionally used something that was less effective for the sake of cost." Dr. Halford ended his deposition by agreeing with the Kawaauhaus' lawyer that "Dr. Geiger intentionally administered substandard care to Margaret Kawaauhau that necessarily resulted in advancing infection in her leg, then loss of her leg, and permanent damage to her kidneys."

The bankruptcy court, though it did not say so directly, evidently credited everything that Dr. Halford said in his deposition, and concluded that "Dr. Geiger's treatment of Mrs. Kawaauhau was so far below the standard level of care that it can be categorized as willful and malicious conduct for dischargeability purposes." In re Geiger, 172 B.R. 916, 923 (Bankr.E.D.Mo.1994). The bankruptcy court further opined that in the context Dr. Geiger's consideration of costs "offends even a person lacking formal medical training." Id. In affirming the judgment of the bankruptcy court, the district court, relying on our opinion in In re Long, 774 F.2d 875 (8th Cir.1985), indicated its belief that Dr. Geiger's admission that "he knew he was providing Mrs. Kawaauhau with substandard care when he prescribed oral penicillin" rendered his conduct willful, and the fact that "his conduct was certain or substantially certain to cause physical harm" rendered it malicious within the meaning of the relevant provision of the bankruptcy code.

II.

We begin our consideration of this evidence by admitting to some uneasiness about the procedure employed in the bankruptcy court. The complaint before the bankruptcy court sought to have a judgment debt declared nondischargeable because, in the words of the statute, it was a "debt ... for willful and malicious injury." See 11 U.S.C. § 523(a)(6). The relevant judgment was entered, and thus the debt was necessarily predicated on, a jury verdict that was in turn based on evidence presented at a trial. The parties did not furnish us with a copy of the trial transcript, and we are thus unable to know what testimony the jury heard that might have convinced it that Dr. Geiger had committed medical malpractice. We therefore find it hard to understand how we can decide what conduct the verdict, and thus the "debt," was "for" within the meaning of the statute. We wonder about the propriety of going behind the pleadings in the original malpractice action, which asked for damages for Dr. Geiger's negligence, to decide what this "debt" was "for." (Plaintiffs prayed for punitive damages, but the issue was not submitted to the jury.) Even if the trial transcript contained particularly shocking evidence of gross negligence and recklessness, or even of intent to injure, we would have no way of knowing what testimony the jury credited, what their verdict was supported by, and therefore what the "debt" under consideration was "for."

Dr. Geiger, however, does not raise these difficulties on appeal, and we leave them to another day, because we are of the view that the evidence before the bankruptcy court, even when viewed in a light most favorable to the Kawaauhaus, cannot make this debt one that is "for willful and malicious injury by the debtor," as the statute requires. See 11 U.S.C. § 523(a)(6).

This phrase has a long history. It was part of the Bankruptcy Act as early as 1898, and in Tinker v. Colwell, 193 U.S. 473, 481, 490, 24 S.Ct. 505, 506-07, 48 L.Ed. 754 (1904), Mr. Justice Peckham gave it an expansive reading, leading to a holding that a judgment based on a husband's complaint for criminal conversation (adultery) was not dischargeable. Despite the debtor's argument that in order to be malicious his action had to have evidenced ill will toward the husband, the Court held that it was unnecessary under the statute for the debtor to have acted with "personal malevolence toward the husband." Id. at 485, 24 S.Ct. at 508. It was enough (that is, the statute was satisfied) if the debtor had committed " 'a wrongful act, done intentionally, without just cause or excuse.' " Id. at 486, 24 S.Ct. at 508, quoting Bromage v. Prosser, 4 Barn. & Cres. 247, 255, 107 Eng.Rep. 1051, 1054 (K.B.1825). In order for an act to be...