Hoesl v. United States

• Decision Date: 26 April 1978
• Docket Number: No. C-77-0948-CBR.,C-77-0948-CBR.
• Citation: 451 F. Supp. 1170
• Parties: Gerald J. HOESL, Plaintiff, v. UNITED STATES of America and Dr. David Allen Kasuboski, Defendants.
• Court: U.S. District Court — Northern District of California

451 F. Supp. 1170

Gerald J. HOESL, Plaintiff, v. UNITED STATES of America and Dr. David Allen Kasuboski, Defendants.

No. C-77-0948-CBR.

United States District Court, N. D. California.

April 26, 1978.

Harvey M. Kletz, Kletz & Moll, Oakland, Cal., for plaintiff.

G. William Hunter, U. S. Atty., John F. Barg, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM OF OPINION

RENFREW, District Judge.

Plaintiff brought this action against the United States and Dr. David Allen Kasuboski under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. Only the United States was served. The Court has jurisdiction pursuant to 28 U.S.C. § 1346(b).

On December 22, 1977, defendants filed a motion to dismiss the action for failure to state a claim upon which relief may be granted or, in the alternative, for summary judgment. After both sides briefed their positions, the Court heard oral argument on January 12, 1978. In a letter dated January 17, 1978, the Court informed counsel of some preliminary conclusions and requested some additional briefing, which the parties supplied. The Court heard additional argument on February 2, 1978.

Having considered the briefs and arguments of counsel, the Court grants defendants' motion to dismiss the action and denies defendants' motion for summary judgment.

I. FACTUAL BACKGROUND

This statement of facts is based on the complaint, whose allegations the Court assumes to be true for the purposes of the pending motions.

In May 1975, plaintiff was employed by the United States Department of the Navy as a civilian electrical engineer at the Naval Air Rework Facility ("NARF") in Alameda, California. On May 9, 1975, plaintiff's supervisors at NARF directed him to report on the same day to the Navy Regional Medical Center at Oakland, California, for a medical examination, and plaintiff complied. The examination was conducted by Dr. Kasuboski, a psychiatrist employed by the Navy, and its purpose was to determine whether plaintiff suffered from any mental disability which made him unable to carry out his responsibilities. Based on this examination, Dr. Kasuboski concluded that plaintiff did suffer from such a disability. Plaintiff alleges that Dr. Kasuboski was negligent in making this diagnosis and that the diagnosis was incorrect.

After the examination Dr. Kasuboski prepared a written report setting forth his findings. He sent this report to the NARF Industrial Medical Department, which forwarded it to plaintiff's supervisors. Relying on the conclusions reached by Dr. Kasuboski in his report, the supervisors placed plaintiff on an emergency suspension for medical reasons. Plaintiff was subsequently terminated as medically disabled.

Plaintiff appealed these actions through administrative channels, and the Civil Service Commission eventually reinstated him to his original position and awarded him at least partial back pay for the period of his suspension and separation. Plaintiff then filed an administrative claim against the United States for damages in compliance with the requirements of the FTCA, 28 U.S.C. § 2675(a). After this administrative claim was denied, plaintiff filed this action on May 6, 1977.

Plaintiff claims that as a result of Dr. Kasuboski's negligence in preparing his report, "he has suffered permanent and irreparable harm to his professional reputation * * *" and impairment of his earning capacity. Other claimed elements of damage include severe mental anguish, the expenses which plaintiff incurred in his efforts to obtain relief in administrative and judicial proceedings, and the rest of his back pay. The general damages sought are seven million dollars and as yet unascertained special damages.

II. LIABILITY OF THE UNITED STATES

Plaintiff contends that he seeks to recover for the medical malpractice of Dr. Kasuboski and that the FTCA provides a remedy for negligent medical performance by government personnel, see Ramirez v. United States, 567 F.2d 854, 856 (9 Cir. 1977) (en banc). However, "`the label which a plaintiff applies to a pleading does not determine the nature of the cause of action which he states,'" and "a litigant cannot circumvent the FTCA by the simple expedient of drafting in terms of negligence a complaint that in reality is a claim as to which the United States remains immunized." Johnson v. United States, 178 U.S. App.D.C. 391, 394-395, 547 F.2d 688, 691-692 (1976) (footnotes omitted), quoting Aktiebolaget Bofors v. United States, 90 U.S. App.D.C. 92, 95, 194 F.2d 145, 148 (1951). The correct characterization of the tort for which plaintiff seeks to hold the United States liable is defamation, and because libel and slander are torts for which the United States is immune, 28 U.S.C. § 2680(h), plaintiff has not stated a claim upon which relief may be granted against the United States.

Plaintiff states a cause of action for defamation under California law. The substantive tort law of California governs plaintiff's claim under the FTCA because the allegedly tortious conduct was committed in California and because the alleged injury to plaintiff caused by that conduct was suffered by him in this state. Crain v. Krehbiel, 443 F.Supp. 202, 212 n. 6 (N.D.Cal. 1977). California Civil Code § 45 defines libel as

"Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."

Plaintiff's complaint contains allegations which state a claim under this section.¹

First, the complaint alleges that Dr. Kasuboski's diagnosis of plaintiff was false.

Second, plaintiff alleges that the defamatory matter applies to and concerns him, as California Code of Civil Procedure § 460 requires.

Third, plaintiff has alleged the publication of this allegedly false diagnosis. Publication consists of the communication of the defendant's characterization of the plaintiff to a person other than the plaintiff.² Farr v. Bramblett, 132 Cal.App.2d 36, 281 P.2d 372, 378 (1955); Hellar v. Bianco, 111 Cal. App.2d 424, 244 P.2d 757, 759 (1952). Plaintiff alleges that Dr. Kasuboski sent a copy of his diagnostic report to his superiors, who then forwarded it to plaintiff's supervisors.

Fourth, Dr. Kasuboski communicated his diagnosis to plaintiff's superiors by means of a written report, so the publication was in writing.

Finally, plaintiff alleges that the publication of this diagnosis tended "to injure him in his occupation." Cal.Civ.Code § 45. California applies a broad definition to injuries to reputation, Moore v. Greene, 431 F.2d 584, 592 (9 Cir. 1970), and language alleged to be libelous need only be fairly included within the statutory definition of libel. Schomberg v. Walker, 132 Cal. 224, 227, 64 P. 290, 291 (1901). The imputation of severe psychological problems to an individual is generally held defamatory on its face. Mattox v. News Syndicate Co., 176 F.2d 897, 901 & n. 5 (2 Cir.), cert. denied, 338 U.S. 858, 70 S.Ct. 100, 94 L.Ed. 525 (1949) (L.Hand, J.) (general rule that publication that person is insane or of unstable mind is libelous per se); W. Prosser, Law of Torts 758 & n. 71 (4th ed. 1971) (hereinafter cited as Prosser); American Law Institute, Second Restatement of the Law of Torts § 573 Comment (c) and Illustration 6, at 191-193 (1977) (hereinafter cited as Restatement of Torts).

Like other courts, California courts have refused to hold defamatory on its face or defamatory at all an imputation of mental disorder which is made in an oblique or hyperbolic manner. Correia v. Santos, 191 Cal.App.2d 844, 13 Cal.Rptr. 132, 137 (1961) (statement made "not to describe the plaintiff as a person who was mentally ill but as one who was unreasonable in his actions and his demands"); Campbell v. Jewish Committee for Personal Service, 125 Cal. App.2d 771, 271 P.2d 185, 187-188 (1954) (letter implying that mental patient released by hospital should still be institutionalized is not libelous per se); Wetzel v. Gulf Oil Corp., 455 F.2d 857, 863 (9 Cir. 1972) (dictum that "nut" and "crazy" in context of argument are not libelous per se under Arizona law); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314, 1329-1330 (W.D.Pa.1974) (under circumstances of case, characterization of plaintiff as "paranoid" and "schizophrenic" constitutes nondefamatory hyperbole). However, in a case involving the unambiguous and considered publication to an employer that an employee has a specified mental disorder serious enough to make him unfit for his job, California courts would unquestionably follow other courts and hold the publication defamatory on its face.

Dr. Kasuboski's report is such a publication. It did more than impute or imply plaintiff's unfitness for his position; it explicitly stated that he was unfit because of a psychiatric disorder. Even if this defamatory publication was not libelous on its face, it is still actionable provided that plaintiff "alleges and proves that he has suffered special damage as a proximate result thereof." Cal.Civ.Code § 45a. Plaintiff has satisfied that requirement because he alleges that the publication of the report led directly to his suspension and termination.

If one of plaintiff's coworkers had accused him of the kind of psychiatric disorder that Dr. Kasuboski diagnosed, plaintiff could sue only for defamation, and the mere fact that defendant in this case is a physician and that he obtained the allegedly defamatory information about plaintiff during the course of a professional consultation does not mean that he committed some tort other than defamation. Under the law of California and other jurisdictions, a doctor who communicates untrue medical information about his patient to a third party commits defamation, unless of course the publication is privileged. Shoemaker v. Friedberg, 80...