Lojuk v. Johnson, 84-1528

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation770 F.2d 619
Docket NumberNo. 84-1528,84-1528
PartiesWalter LOJUK, Plaintiff-Appellee, v. Bruce JOHNSON, M.D., in his individual capacity and as a physician employee of the Veterans Administration Hospital, North Chicago, Illinois, and other unnamed and unknown defendants, Defendant-Appellant.
Decision Date08 August 1985

Page 619

770 F.2d 619
Walter LOJUK, Plaintiff-Appellee,
Bruce JOHNSON, M.D., in his individual capacity and as a
physician employee of the Veterans Administration Hospital,
North Chicago, Illinois, and other unnamed and unknown
defendants, Defendant-Appellant.
No. 84-1528.
United States Court of Appeals,
Seventh Circuit.
Argued Feb. 11, 1985.
Decided Aug. 8, 1985.

Page 620

Patrick K. Murphy, Chicago, Ill., for plaintiff-appellee.

Michael S. O'Connell, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, and BAUER and FLAUM, Circuit Judges.

CUMMINGS, Chief Judge.

Defendant Dr. Bruce Johnson brings this appeal seeking reversal of the lower court's denial of his motion for summary judgment. Plaintiff Walter Lojuk filed this lawsuit seeking damages allegedly suffered from his receipt of electro-convulsive therapy ("ECT", also known as electro-shock therapy) at the Veterans Administration ("VA") Medical Center, North Chicago, Illinois, in March 1979. For purposes of this appeal, Dr. Johnson, the treating psychiatrist, agrees that Mr. Lojuk received this treatment without his consent and over his family's express objections. 1 The parties have stipulated that Dr. Johnson was acting within the scope of his employment as a VA physician at all relevant times.

This case is now before us for the second time. In our previous consideration of this lawsuit, Lojuk v. Quandt, 706 F.2d 1456 (7th Cir.1983) ("Lojuk I "), we held among other things that plaintiff was a de facto involuntary patient and that Dr. Johnson's decision to administer ECT without plaintiff's consent infringed his liberty interest under the Fifth Amendment. Plaintiff alleges both a constitutional tort claim due to this infringement of his liberty interest and a battery claim under Illinois common law. Dr. Johnson argues in defense before us, as he did below, that he has absolute immunity from the common-law claim and qualified immunity from the constitutional claim. The district court disagreed and therefore denied defendant's motion for summary judgment. For reasons to be discussed herein, we affirm the judgment of the district court in part and reverse in part. But before reaching the merits of this appeal, we must first determine whether jurisdiction is properly laid in this Court.


This Court has "jurisdiction of appeals from all final decisions of the district

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courts of the United States * * * except where a direct review may be had in the Supreme Court." 28 U.S.C. Sec. 1291. Finality means that the district court has nothing left to do " 'but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911). Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, articulated one very narrow exception to this strict finality rule. The collateral order doctrine of Cohen applies to interlocutory orders that "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment." Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458.

We hold, as have other courts before us, see Kenyatta v. Moore, 744 F.2d 1179, 1183 n. 10 (5th Cir.1984) (citing cases), that the denial of absolute immunity is immediately appealable. All three requirements enunciated in Coopers & Lybrand, supra, are met, as they must be for an order to be appealable under the collateral order doctrine. The right to be free from suit, regardless of culpability, is an important issue completely separate from the merits of the action. The district court's denial of absolute immunity conclusively determines the question, because absolute immunity protects the right to be free from trial, rather than just the right to avoid liability. See Powers v. Lightner, 752 F.2d 1251, 1255 (7th Cir.1985); Kenyatta, 744 F.2d at 1183. Consequently, the only effective appellate review is immediate appellate review. Hence the district court's denial of absolute immunity on the common-law claim is reviewable under 28 U.S.C. Sec. 1291.

Whether the claim of qualified immunity is also appealable is a separate question and one that the Supreme Court has recently addressed. In Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 86 L.Ed.2d 411, the Supreme Court held "that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." Id. at ----, 105 S.Ct. at 2817. Crucial to the Supreme Court's analysis was its determination that qualified immunity, like absolute immunity, constituted "immunity from suit rather than a mere defense to liability." Id. at ----, 105 S.Ct. at 2816 (emphasis in original). Indeed officials often argue the two bases of liability in the alternative--that they are absolutely immune or, if not absolutely immune, qualifiedly immune. See Mitchell (Attorney General argued that he should have absolute immunity for performing his national security functions delegated by the President or at least qualified immunity); Harlow v. Fitzgerald, 457 U.S. 800, 813, 102 S.Ct. 2727, 2735, 73 L.Ed.2d 396 (senior Presidential aides argued that they were absolutely immune or otherwise had qualified immunity).

Dr. Johnson has stipulated that, as Mr. Lojuk alleges, he ordered the ECT treatment without Mr. Lojuk's consent or the consent of his family. The Supreme Court in Mitchell expressly contemplated immediate appeals from a district court's ruling that "if the facts are as asserted by the plaintiff, the defendant is not immune." --- U.S. at ----, 105 S.Ct. at 2816. Since that language describes precisely the instant situation, Mitchell controls and we have jurisdiction over this appeal as an appealable collateral order. 2

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We have jurisdiction over the district court's denial of both absolute immunity and qualified immunity. We turn first to the question of absolute immunity.


Absolute immunity is a doctrine largely of judicial origin and evolution. Barr v. Matteo, 360 U.S. 564, 569, 79 S.Ct. 1335, 1338, 3 L.Ed.2d 1434. Its purpose is to advance "the fearless, vigorous, and effective administration of policies of government," id. at 571, 79 S.Ct. at 1339, by insulating governmental officials from lawsuits based on acts done in the furtherance of their official duties. Although doing so means that "[t]here may be occasional instances of actual injustice which will go unredressed," id. at 576, 79 S.Ct. at 1342, that price is the one paid to preserve innocent officials from the threat and the burden of baseless litigation. It is also the price paid to assure that capable individuals do not shun government service due to the threat of liability.

The basic inquiry is whether the lawsuit is based on state common law, and whether the federal official executed the action complained of within the outer perimeter of his delegated duty. Id. at 574-575, 79 S.Ct. at 1341-1342; Oyler v. National Guard Association of the United States, 743 F.2d 545, 551-553 (7th Cir.1984). Nonetheless, the process is one of balancing the advantages derived from compensating individuals for damage inflicted by government officials against the harm to the public interest incurred by the effect of vindictive or ill-founded damage suits on public officials. Barr, 360 U.S. at 564-565, 79 S.Ct. at 1335-1336. Consequently, the doctrine should not be extended unthinkingly, and each situation should be evaluated to ascertain whether extending immunity would harmonize with the policies underlying the absolute immunity doctrine. Doe v. McMillan, 412 U.S. 306, 320, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912. Cf. Mitchell v. Forsyth, --- U.S. at ----, 105 S.Ct. at 2813-2814 (functional approach used to deny blanket immunization of Attorney General's alleged violation of constitutional rights; qualified immunity adopted instead); Ferri v. Ackerman, 444 U.S. 193, 202-205, 100 S.Ct. 402, 408-410, 62 L.Ed.2d 355 (refusing to afford absolute immunity to a court-appointed lawyer sued by his former client for malpractice). Doing so is especially important when the immunity extended has not been mandated by Congress but is of judicial origin alone.

Although we suggested in Lojuk I, supra, that absolute immunity might be unwarranted in this case, we did not consider the question due to the limited briefing on the issue at that time and because consideration of the issue would not result in disposal of the entire suit. Instead, we remanded to the district court for a fuller consideration. 706 F.2d at 1469. We now hold that absolute immunity should not be accorded to Dr. Johnson.

Understanding our reasons for doing so requires a reexamination of our holding in Lojuk I. There we characterized Mr. Lojuk's medical malpractice claim against Dr. Johnson as one for battery, because he alleged a total lack of consent to ECT. Consequently, his receipt of the treatment constituted an intentional unauthorized touching of his person. Id. at 1460. As a result, he was foreclosed from proceeding against the United States under the Federal Tort Claims Act ("FTCA"), due to its exception for intentional tort cases. Id. at 1462. Had he alleged lack of informed consent, rather than no consent, the complaint would have sounded in negligence, id. at 1460, and a FTCA action would have been available.

We then considered whether the individual VA defendants were immunized from suit by 38 U.S.C. Sec. 4116(a), which applies to suits requesting damages for personal injury "allegedly arising from

Page 623

malpractice or negligence of a physician." Our examination of the statute convinced us that it immunizes VA medical personnel...

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