Appeal From the United States District Court for the District of New Jersey.
Seitz, Chief Judge, Aldisert and Gibbons, Circuit Judges. On reargument: Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Adams, Circuit Judge, concurring in the result. Seitz, Chief Judge, Gibbons, Circuit Judge, dissenting.
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, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959) and later applied in this circuit in Keiser v. Hartman, 339 F.2d 597 (3d Cir. 1964), cert. denied, 381 U.S. 934, 14 L. Ed. 2d 699, 85 S. Ct. 1764 (1965). Plaintiff appealed the order of dismissal.
Our starting point is the Bailey v. DeQuevedo rationale,*fn1 anchored not on Barr v. Matteo but on Feres v. United States, 340 U.S. 135, 141, 95 L. Ed. 152, 71 S. Ct. 153 (1950): "We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior 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, 16 L. Ed. 2d 210, 86 S. Ct. 1205 (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:
The 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, 36 L. Ed. 2d 912, 93 S. Ct. 2018 (1973) (emphasis added). In particular, two considerations are to be counterbalanced:
On 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; see Doe v. McMillan, supra, 412 U.S. at 319.
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 Claims Act, 28 U.S.C. § 1346(b), see United States v. Brown, 348 U.S. 110, 99 L. Ed. 139, 75 S. Ct. 141 (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.*fn2 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,*fn3 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.*fn4 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,*fn5 and not for the courts, is to ignore the reality that it has been the Supreme Court, not Congress, that has developed the principles of absolute immunity,*fn6 as well as the principles of qualified immunity.*fn7 Moreover, such an argument ignores the fact that it was this court, not Congress, that afforded ...