Jackson v. Kelly

• Citation: 557 F.2d 735
• Decision Date: 24 June 1977
• Docket Number: No. 75-1937,75-1937
• Parties: Sheila M. JACKSON, Plaintiff-Appellant, v. Paul A. KELLY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 735

557 F.2d 735

Sheila M. JACKSON, Plaintiff-Appellant, v. Paul A. KELLY, Defendant-Appellee.

No. 75-1937.

United States Court of Appeals Tenth Circuit.

Argued Oct. 13, 1976.

Submitted May 19, 1977.

Decided June 24, 1977.

Gene M. Hoffman, Hoffman, McDermott & Hoffman, Denver, Colo., for plaintiff-appellant.

Jerre W. Dixon, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for defendant-appellee.

Before LEWIS, Chief Judge, and BREITENSTEIN, SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges, sitting en banc.

LEWIS, Chief Judge.

Plaintiff sought to recover damages in the district court for the District of Colorado in this diversity action for medical malpractice by defendant. At the time of the alleged malpractice, defendant was a military physician stationed at the United States Air Force Hospital in Lakenheath, England, and plaintiff was the dependent spouse of an air force captain. Plaintiff alleged that defendant, a specialist in obstetrics and gynecology, negligently treated her for conditions relating to her pregnancy. The district court dismissed plaintiff's suit, holding that defendant as a federal official is immune from a suit such as this arising out of actions taken within the scope of his official employment. For purposes of this appeal we assume defendant was acting within the scope of his employment as a military physician.

In the absence of statutory immunity, the test for whether an official shall be immune from liability for money damages is not mechanical. "(T)he immunity conferred (is) not . . . the same for all officials for all purposes." Doe v. McMillan, 412 U.S. 306, 319, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912. It thus requires a careful inquiry into the nature of the alleged wrongful acts and scope of the accused official's duties. The need for a careful inquiry stems from the competing policies underlying official immunity from money damages. From the perspective of the individual citizen, some compensatory remedy must be available to vindicate injury inflicted by government officials. From the perspective of the public interest in the effective administration of policies of government, officials must be free to exercise their duties, especially discretionary duties, without having to defend their actions in court. The doctrine of immunity reflects the view that an official may be excessively hampered if he is subject to the tedious and potentially embarrassing process of litigation regardless of the ultimate outcome. Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 3 L.Ed.2d 1434.

The Supreme Court has only recognized a very narrow category of judicially- created absolute immunity for some federal officials. ¹ See Barr v. Matteo, supra at 569, 79 S.Ct. 1335. Since defendant does not come within the narrow category of federal officials entitled to absolute immunity under recent Supreme Court decisions, the mere fact defendant was acting within the outer perimeter of his authority does not immunize him from personal liability. Any intimation to the contrary in Bates v. Carlow, 10 Cir., 430 F.2d 1331, that an official operating at defendant's level is absolutely immune from liability for acts performed within the scope of his authority is inconsistent with recent Supreme Court pronouncements and thus must be overruled.

Doe v. McMillan, supra, makes it clear we must apply the discretionary function test, i. e., whether defendant's duties were discretionary, to determine whether defendant is immune from personal liability for acts within the scope of his authority. ² In Doe, the immunity of the Public Printer and the Superintendent of Documents for Congress was at issue. Plaintiffs alleged these officials invaded their privacy by publishing certain derogatory documents for use in Congress and distribution elsewhere. The Court found the officials were acting within the scope of their duties but their duties were not discretionary. The Court held official immunity does not automatically attach to any conduct expressly or impliedly authorized by law, unless the official was exercising a discretionary function. This rule is appropriate because the effective administration of policies of government is not severely impaired if officials with ministerial duties are answerable in damages for failure to perform obligatory functions with reasonable care.

Doe further indicates that when an official acting in a nondiscretionary capacity claims immunity, the Supreme Court

has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens . . ..

412 U.S. at 320, 93 S.Ct. at 2028. Thus, the Court mandates the use of the discretionary function test, and a direct balancing of the policies underlying the immunity doctrine in the context of each fact situation. See, e. g., Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (qualified immunity granted to school board officials who exercise discretion); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (qualified immunity for Governor and executive officers of state exercising discretionary responsibilities).

Mindful of these principles, the first step here is to decide whether defendant's functions were discretionary. Secondly, the consideration of harm to the individual citizen must be balanced with the threat to effective government in the context of this case.

I.

No foolproof measure of discretionary duties exists. One source of guidance useful here, however, is the explanation of the discretionary-ministerial distinction developed in the context of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. This distinction is important under the FTCA because the Act excepts claims based on performing or failing to perform discretionary functions. 28 U.S.C. § 2680(a). Generally speaking, a duty is discretionary if it involves judgment, planning, or policy decisions. It is not discretionary if it involves enforcement or administration of a mandatory duty at the operational level, even if professional expert evaluation is required. Nelms v. Laird, 4 Cir., 442 F.2d 1163, rev'd on other grounds, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499; Hendry v. United States, 2 Cir., 418 F.2d 774. The key is whether the duty is mandatory or whether the act complained of involved policy-making or judgment. For example, negligence in the construction of a government facility is nondiscretionary and subjects the government to liability under the FTCA. See Seaboard Coast Line R. R. v. United States, 5 Cir., 473 F.2d 714.

This court has twice held the discretionary function exception does not except the government from liability for negligent medical care. In Griggs v. United States, 10 Cir., 178 F.2d 1, rev'd on other grounds, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, an army officer died while under treatment in an army hospital and it was alleged the death was caused by the negligent, careless, and unskillful acts of army medical personnel. We held the discretionary function exception did not apply to medical treatment because

(i)t is manifestly plain that the alleged acts of negligence, while involving skill and training, were non-discretionary.

178 F.2d at 3. In United States v. Gray, 10 Cir., 199 F.2d 239, plaintiff, who was a patient in an army hospital, jumped out a hospital window after the guard which had been assigned to her room had been removed. In holding the discretionary function exception did not bar recovery for her injuries we said

(w)hile it was within the discretion of the managerial authorities at the hospital to determine in the first instance whether suitable facilities were available for the care and treatment of plaintiff, having decided that such facilities were available and having admitted her, the Government was not authorized to exercise in an unbridled manner and without due regard for the known facts and circumstances a plain and clear duty or function in respect to her care and treatment, with complete immunity under the Act from liability for negligence in connection therewith proximately resulting in personal injury to plaintiff.

Id. at 241-42.

Applying these principles and precedents, it is clear defendant's duty in treating plaintiff was nondiscretionary. He did not engage in planning or policy-making, but merely attempted to carry out the ministerial duty of caring for plaintiff in a reasonable manner as he was obliged to do as an air force physician. Plaintiff's complaint merely charges defendant with the negligent practice of medicine; it does not ask the district court to review a federal health policy decision made by defendant.

We recognize that medical treatment involves judgment and discretion. This does not resolve the matter, however, because medical treatment by a government doctor does not necessarily involve governmental discretion. This distinction is cogently presented in Spencer v. General Hospital, 138 U.S.App.D.C. 48, 425 F.2d 479, 489 (Wright, J., concurring, emphasis in original):

The point is that medical, not governmental judgment and discretion are involved. The common law of malpractice, as normally applied to private doctors and hospitals, already grants the leeway properly left for expert judgment in the relatively stringent requirements it imposes upon plaintiffs in medical negligence suits. No further leeway is required for the publicly employed doctor or the public hospital than for their private counterparts.

The District of Columbia Circuit Court of Appeals recently held an army doctor does not have immunity from civil liability arising out of actions of a strictly medical nature. Henderson v. Bluemink, 167 U.S.App.D.C. 161, 511 F.2d 399. The court reasoned government employees would be protected when they exercised discretion of a governmental nature...