Fifyne Henderson, Appellant, v. Major George Bluemink, 511 F.2d 399 (D.C. Cir. 1974)

Appellant sought to recover damages in District Court for the alleged negligence of Major George Bluemink, an officer and doctor in the United States Army stationed at Walter Reed Army Medical Center. The complaint alleged that Major Bluemink (1) 'improperly treated, diagnosed, and prescribed improper medication' for appellant's illness, (2) 'failed to take the necessary medical tests, analyses, (and) biopsies, before making such a decision,' and (3) failed expeditiously to 'take medical measures to prevent the condition which was progressing rapidly.' Armed with the stipulation that 'at all pertinent times (he) was acting within the scope of his official employment as a medical officer in the United States Army,' Major Bluemink sought and was granted summary judgment on the ground that he was 'entitled to absolute immunity.'¹  This appeal followed. Inasmuch as we disagree with the District Court's conclusion that by virtue of his employment as an Army officer appellee is clothed with absolute immunity from civil liability, we reverse and remand for further proceedings.

* Whether judicially or statutorily²  created, immunity of public officers and employees from personal liability is dependent upon the relationship of the officer or employee to the government, and the nature of the duties performed. As a general rule, government officials are privileged to enjoy a blanket of immunity from civil liability for torts committed while acting in the line of their official duties.³  In Barr v. Matteo,⁴  the Supreme Court stressed the importance of insuring that government officials be

free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties---suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.⁵ 

The privilege is not restricted to executive officers of cabinet rank,⁶  but the 'immunity conferred (is) not . . . the same for all officials for all purposes.'⁷  Accordingly, while an absolute immunity exists for judges and executive officers, a more limited form of the privilege is extended to lower officials.⁸  The Court has declined, however, to establish a

fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweighs the perhaps recurring harm to individual citizens . . ..⁹ 

This Court has engaged in precisely such a 'discerning inquiry' in its formulation of a rule of immunity to be applied to the District of Columbia, its governmental units, and its officers. In Elgin v. District of Columbia,¹⁰  we sounded the death knell of the 'governmental-proprietary'¹¹  distinction and heralded the coming of the more workable 'discretionary-ministerial' test which we later formally adopted in Spencer v. General Hospital of Distnict of Columbia.¹²  We recognized in Elgin that where a government acts to formulate policy its decisions are immune from suit because 'heavily fraught with discretionary determinations.'¹³  Where that same government acts to execute its policy, however, it is charged with the duty of reasonable care, and may incur liability based upon its negligent breach thereof.¹⁴  Seeking 'not to jeopardize 'the quality and efficiency of government itself' by exposing the exercise of discretion in the formulation of governmental policy to the scrutiny and sanction of tort liability',¹⁵  we concluded in Spencer that a municipal hospital is not immune from civil liability merely by virtue of its status as a governmental unit. The 'discretionary-ministerial' analysis of governmental immunity which we applied in Spencer to governmental units of the District of Columbia is equally appropriate in its application to District of Columbia officers.¹⁶  Since judicial creation of municipal immunity is motivated by the same policies which underlie judicial creation of federal immunity,¹⁷  we find no justification in creating for appellee that which we have declined to create for doctors employed by the District of Columbia.

Turning to the facts of the instant case, we cannot say that the District Court was asked to review federal policy decisions made by appellee in the area of health. Rather, the complaint (no less--but certainly no more--than one sounding in malpractice) charged that appellee, albeit a government officer, was negligent in the practice of medicine. Since appellee is neither a judge nor an executive officer, and is therefore clothed at best with a limited form of immunity,¹⁸  we reject the conclusion of the District Court that appellee's employment by the Army as a medical officer confers absolute immunity for his allegedly tortious conduct. That court's perception of appellee's governmental employment as the dispositive factor in the litigation is to us merely the point of departure. To be sure, the acts complained of involved the exercise of discretion in the normal usage of that term but the significant factor is that the discretion exercised might have been medical rather than governmental.¹⁹  The chief policy underlying the creation of immunity for lower governmental officials is mainly that which stems from the desire to discourage 'the fearless, vigorous, and effective administration of policies of government.'²⁰  However, that policy is not applicable to the exercise of normal medical discretion since doctors making such judgments would face the same liability outside of government service as they would face if the complaint below is upheld. A fortiori, the threat of liability for negligence would not deter the fearless exercise of medical discretion within government service any more than the same threat deters the exercise of medical discretion outside of government. Holding government medical personnel to the same standards of care which they would face outside of government service in no way burdens their public responsibility or deters entry into government service or the vigorous exercise of public responsibility once having entered that service.²¹ 

Appellee relies on Bates v. Carlow,²²  and Estate of Burks v. Ross,²³  wherein other circuits, on the basis of absolute immunity, affirmed summary judgments in actions against government physicians. The result in Bates is not persuasive since the court there advanced no reasoning which would indicate that our decision in Spencer should be limited to municipal immunity. In Estate of Burks, the court applied a 'discretionary-ministerial' analysis, but failed to draw the distinction between medical and governmental discretion which we deem essential to a proper application of that analysis.²⁴  In sum, we decline to alter the course which we set in Elgin, delineated in Spencer, and continue to follow today. We turn now to a brief examination of the applicability to the case at bar of the Federal Tort Claims Act and other similar provisions.

II

Generally, suits involving damages caused by an employee²⁵  of the United States are brought under the Federal Tort Claims Act²⁶  which provides a basis for recovery against the United States. However, with the exception of a provision in the Act²⁷  and others found elsewhere,²⁸  there is no statutory protection for federal employees from personal liability arising out of their own negligent conduct while acting within the scope of their employment. The Act itself provides that a judgment against the United States shall operate as a bar to any action against the individual employee,²⁹  but that section proscribes a double recovery, not a suit against the individual employee in the first instance.

We note with particular interest the statutory provision relieving Veterans' Administration medical personnel from personal liability for malpractice.³⁰  The extension of similar protection to the class of which appellee is a member is properly within the realm of the legislative branch of the United States. We refrain from affording absolute immunity by judicial decision.

III

We remand in order for the District Court to receive evidence bearing on the issue whether the acts complained of were immune from suit under our Spencer analysis. Our remand is not to be taken as any indication of our views on the merits of the claims presented in the law suit. We hold only that on the facts before us the District Court erred in granting summary judgment for appellee on the ground of absolute immunity.

The case is remanded for further proceedings not inconsistent with this opinion.

So ordered.