Martinez v. Schrock

OPINION OF THE COURT ALDISERT, Circuit Judge. Bailey v. DeQuevedo, 375 F.2d 72, 74 (3d Cir.), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967), held that “an enlisted man in the armed services of the United States cannot maintain an action against an Army medical surgeon for negligence in an operation performed at an Army hospital in line of duty.” The question presented here is whether that bar can be extended to an action brought by the representative of a retired enlisted man against two Army surgeons. The district court held that the surgeons possessed immunity and dismissed the complaint with prejudice. We affirm. Plaintiff’s decedent, a retired Army sergeant and a civilian employee at Fort Dix, New Jersey, died on January 23, 1975, shortly after a gall bladder operation performed on him by defendants, two Army surgeons. Plaintiff initiated survival (N.J. S.A. 2A:15-3) and wrongful death (N.J.S.A. 2A:31-1) claims in the Superior Court of New Jersey contending that defendants’ negligence caused the death. The action was properly removed to the district court pursuant to 28 U.S.C. § 1442(a) where it was dismissed with prejudice. The district court relied on the immunity doctrine enunciated in the defamation case of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) and later applied in this circuit in Keiser v. Hartman, 339 F.2d 597 (3d Cir. 1964), cert. denied, 381 U.S. 934, 85 S.Ct. 1764, 14 L.Ed.2d 699 (1965). Plaintiff appealed the order of dismissal. [767] Our starting point is the Bailey v. DeQuevedo rationale,1 anchored not on Barr v. Matteo but on Feres v. United States, 340 U.S. 135, 141, 71 S.Ct. 153, 157, 95 L.Ed. 152 (1950): “We know of no American law which ever has permitted a soldier to recover for negligence, against either his superi- or officers or the Government he is serving.” In denying relief to the plaintiff in Bailey our justification was two-fold: “the plaintiff was on ‘active duty’ and ‘subject to military discipline’, and the defendant’s alleged negligent action was ‘committed in the course of military duty.’ ” 375 F.2d at 74 (emphasis added). Here we must decide if a different rule should apply because: (a) the survival claim is asserted on behalf of a retired serviceman, entitled to military medical care but no longer on active duty at the time of the alleged negligent conduct or (b) the wrongful death claim, in legal theory, belongs to the decedent’s family, not to the decedent. We concede that the distinction in the status of plaintiff and her decedent deprives these defendants of the benefit of the rationale that “one soldier may [not] sue another for negligent acts performed in the line of duty.” Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965), cert. denied, 383 U.S. 948, 86 S.Ct. 1205, 16 L.Ed.2d 210 (1966), quoted in Bailey v. DeQuevedo, supra, 375 F.2d at 74. But we do not believe that the applicability of immunity doctrines ought to turn on such distinctions. We perceive more meaningful policy considerations at work — considerations looking not to the particular status of the plaintiff, but to the governmental interests inhering in the duties of the defendants. The Supreme Court instructs: [ T]he Court has not fashioned a fixed, invariable rule of immunity but 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 . Doe v. McMillan, 412 U.S. 306, 320, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973) (emphasis added). In particular, two considerations are to be counterbalanced: [0]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities. Barr v. Matteo, supra, 360 U.S. at 565, 79 S.Ct. at 1336; see Doe v. McMillan, supra, 412 U.S. at 319, 93 S.Ct. at 2018. Applying these broad directives from the Supreme Court, we perceive significant public policy considerations at work here which tip the balance in favor of immunity. First, as in Bailey, the defendants here were Army physicians on active duty, performing “in the course of military duty.” They could not pick and choose their patients. The objectives of certainty and uniformity in the law would be ill-served if immunity were wrapped around a surgeon for a nine o’clock operation in an Army hospital on an active-duty soldier who survived the operation, but were removed for a ten o’clock operation in the same operating room on a retired soldier who did not survive the operation. The law should not require the military surgeon, in exercising his informed medical judgment, to concern himself with his patient’s military status or with the technicalities of tort law. The same standard of professional care obviously ought to apply in both situations, and the same legal rules should obtain. Second, if viewed from the perspective of avoiding “perhaps recurring harm to individual citizens”, the plaintiff’s position in this case is equally untenable. Immunizing these defendants from personal liability does not deprive the plaintiff of a remedy: she may seek relief under the Federal Tort [768] Claims Act, 28 U.S.C. § 1346(b), see United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). Indeed, we were advised at oral argument that a timely Federal Tort Claims Act claim has been filed to protect the plaintiff. In Bailey we held the defendants were immune from personal liability even though the plaintiff was precluded from suing under the Federal Tort Claims Act. See Feres v. United States, supra. There was no alternative remedy in Bailey; there is in the case at bar. Insofar as this factor should affect the outcome, our decision today would seem to follow a fortiori from Bailey. Third, concerning the contribution of an immunity rule to “effective government”, we note that this claim is not one where liability would be borne ultimately by the United States or by an insurance carrier. Absent a Federal Tort Claims Act suit naming the United States as a defendant, there is no provision for joinder of or indemnity from the United States; and malpractice insurance is not involved here.2 This case raises the spectre of personal liability on the part of military doctors. We willingly concede that concern for the savings accounts of military doctors should not be controlling in and of itself. But viewed with regard for its possible effect on the delivery of health care to the armed services, the prospect of personal liability takes on added significance. Surely, there is a strong governmental interest in assuring that the military services be able to recruit and retain competent medical personnel. Given today’s litigious medical malpractice environment,3 we believe that such persons would be substantially discouraged from pursuing military medical careers by the prospect of personal liability in malpractice actions. Civilian physicians are having difficulty meeting the spiralling cost of malpractice insurance premiums.4 Some have felt compelled to leave previously lucrative practices. It could hardly be suggested that the purchase of costly insurance would provide a solution for the more modestly compensated military doctor. Therefore, if there is a governmental interest in the delivery of health care to the armed services — and we strongly believe there is — a result imposing personal liability on military medical personnel would be antithetical to that interest. Finally, to argue, as does the plaintiff, that the protection of military medical officers is a matter for Congress,5 and not for [769] the courts, is to ignore the reality that it has been the Supreme Court, not Congress, that has developed the principles of absolute immunity,6 as well as the principles of qualified immunity.7 Moreover, such an argument ignores the fact that it was this court, not Congress, that afforded protection to military physicians from claims by persons on active military duty. Bailey v. DeQuevedo, supra. We see the issues reduced to this: being limited to the salary of a military officer without the financial emoluments of private civilian practice, and being under military obligation to accept patients sent to him, should a military physician be confronted with potential personal liability for a claim of medical malpractice? Would such liability be consonant with sound public policy? We think not. We think that the contribution of immunity to effective government, relating here to the armed services’ ability to recruit and retain competent medical personnel, outweighs the perhaps recurring harm to individual citizens who, in fact, have recourse under the Federal Tort Claims Act. The judgment of the district court will be affirmed. Footnotes [1] We cheerfully concede that the Bailey rationale has not captured universal acceptance. See, e. g., Henderson v. Bluemink, 167 U.S.App.D.C. 161, 511 F.2d 399 (1974). [2] See the Report of the House Committee on Armed Services, note 5, infra, concerning the reasons why a plaintiff might choose not to sue the United States, and the general absence of malpractice insurance in this kind of litigation. [3] See, e. g., New York Times, June 15, 1975, at 44, col. 3 (remarks of Dr. Malcolm C. Todd, president of the American Medical Association (“A.M.A.”), during the 124th Annual Meeting of the A.M.A.): “Malpractice is the number one problem that faces the American medical profession.” [4] “The A.M.A. undertook the financial risk of forming a re-insurance company under pressures created by soaring malpractice premium rates and by the commercial industry’s virtual abandonment of medical malpractice coverage.” New York Times, June 20, 1975, at 39, col. 5. In the 10-year period prior to the A.M. A.’s action, rates jumped 1,600%, so that the annual premium for $1 million insurance coverage came to nearly $15,000 for high risk fields such as orthopedic surgery — and this figure obtained before carriers proposed doubling rates in 1975. New York Times, June 1, 1975, at 47, col. 5. [5] The House of Representatives has passed H.R. 3954, 94th Cong. 1st Sess., to provide an exclusive remedy via the Federal Tort Claims Act for claims against active duty military physicians, dentists, nurses, pharmacists and paramedical personnel. Such protection had already been extended to medical personnel of the Veterans Administration, 38 U.S.C. § 4116, and of the Public Health Service, 42 U.S.C. § 233. The House Committee on Armed Services Report accompanying H.R. 3954 explained the problem: . . . If the defendant loses the case he must pay the judgment. Of course, if the individual is sued jointly with the United States and a judgment is entered against both jointly, the United States will satisfy the judgment. However, if the defendant is sued individually, neither the United States nor the individual can bring in the United States as a party defendant in order to invoke the provisions of the Federal Tort Claims Act. One may ask why a plaintiff would not join the United States or sue the United States alone in order to claim the benefit of the world’s largest self-insurer. There are sever [769] al possible reasons. For example, a jury trial is not available in such a suit against the United States and the plaintiff may care to obtain jury consideration of the circumstances giving rise to the alleged malpractice . . . . Also, there are cases where the two-year statuite of limitations on claims against the Umited States may have run out while the local statute for suit in a state court may not have run. In addition, there have been instances where for emotional or vindictive reasons plaintiffs have insisted on suing a physician personally for alleged negligence. The present propensity of individuals to pursue more actively alleged medical malpractice and the attendant alarming increase in the cost of malp>ractice insurance coverage have caused physicians, dentists, nurses, paramedics and other individuals assigned to medically-related duties in the Department of Defense to be increasingly concerned over personal exposure to civil liability for alleged malpractice and their increasing inability to meet the cost of malpractice insurance. The Department of Justice reported to the Committee that it is defending 20 such lawsuits in which 37 Defense Department defendants are being sued personally for damages in United States District Courts. In all but three cases there is no insurance coverage, and of those three the limitations on liability appear to fall well below the damages claimed. The total damages claimed in those 20 cases is in the amount of $13,755,-450.00. The Department of Justice, in reporting its experience regarding the national proliferation of medical malpractice claims and litigation, has advised the Committee that at the present time it is involved in approximately 494 suits characterized as arising out of alleged medical malpractice of officers or employees of the Federal establishment. H.R.Rep.No.94-333, 94th Cong., 1st Sess. 2-3 (1975). [6] Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, 44 U.S.L.W. 4250 (1976); Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). [7] Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, supra, note 6.