Lojuk v. JohnsonLojuk v. Johnson
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
I
* This Court has “jurisdiction of appeals from all final decisions of the district courts of the United States * * * except where a direct review may be had in the Supreme Court.”
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
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
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
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.
II
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
Strongly supporting this determination was Subsection (e), added to Section 4116 in 1973 and providing in relevant part:
The [VA] Administrator may, to the extent the Administrator deems appropriate, hold harmless or provide liability insurance for any person to whom the immunity provisions of this section apply * * *, for damage for personal injury * * *, negligently caused by such person while furnishing medical care or treatment * * * in the exercise of such person‘s duties * * *, if such person * * * is acting under * * * circumstances which would preclude the remedies of an injured third person against the United States * * * for such damage or injury.
The House Report explaining this provision stated that the statute would “extend this protection [for the defense of negligence and malpractice claims] to cases where Federal Tort claims actions would not lie, but actions could still be brought against the VA employee personally for actions arising in the exercise of his duties.” H.R.Rep. No. 368, 93d Cong., 1st Sess., reprinted in 1973 U.S.Code Cong. & Ad.News 1688, 1710. Thus the House identified Subsection (e) as applying to VA doctors in Dr. Johnson‘s situation, who are sued by individuals without an alternative remedy directly against the United States because their medical malpractice claim sounds in intentional tort. The VA Administrator at the time reinforced this conclusion by explaining that the provision would “provide a means of protecting * * * medical personnel * * * who are sued for assault and battery, * * * in connection with the performance of their assigned duties.” S.Rep. No. 776, 92d Cong., 2d Sess. 51 (1972) (reprinted in Lojuk I, 706 F.2d at 1463). Because absolute immunity would attach solely to acts done within the outer perimeter of a government official‘s duties, the protection provided by
Giving full effect to Congressional intent in enacting
Without question a primary Congressional purpose underlying the legislation of which
The reasoning adopted by the Tenth Circuit in Jackson is very persuasive. The court there noted that Congress’ decision to provide medical personnel who are sued for malpractice either indemnity or insurance, rather than absolute immunity, indicated an intent to ensure a remedy to victims of malpractice while protecting military employees at the same time. Id. at 740-741. The same reasoning applies with equal force to the instant situation. Congress could have immunized VA medical employees without incurring the added expense of indemnity or insurance. That Congress chose to incur this expense indicates a firm purpose to provide compensation to those who are injured. Congress’ choosing to do so avoids the societal cost implicated in denying recompense to injured individuals.
That
Also a red herring is the argument that
Although
The driving force behind Section 4116, as behind analogous statutory provisions, is protecting medical personnel without depriving those who are injured of a remedy. Section 4116(a) authorizes a FTCA claim against the government directly for medical malpractice or negligence claims; Section 4116(e) operates to provide insurance or indemnity only if some exception in the FTCA bars direct action against the government under Subsection (a) for an employee‘s malpractice. Certainly courts interpreting statutes analogous to Section 4116 have understood Section 4116 to have the same scope, as well as the same Congressional purposes, as the statutes waiving the FTCA‘s exemption for assault and battery claims that might arise out of medical malpractice. See, e.g., Mendez v. Belton, 739 F.2d 15, 19 (1st Cir.1984) (
Because
Our decision today accords with the holdings of at least three other circuits. Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179 (3d Cir.1980); Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977) (en banc ); Henderson v. Bluemink, 511 F.2d 399 (D.C.Cir.1974).5 These three cases distinguish between governmental policy decisions and medical treatment decisions and argue that absolute immunity applies only to the former.6 This distinction is fruitful insofar as it requires a court to examine whether absolute immunity in a given situation will accord with its policy underpinnings. We do not, however, expressly rely on the rationale because our examination of the statutory immunity question leaves little doubt that Congress intended VA medical personnel to rely on the protection offered by
These circuits have also imported a ministerial-discretionary distinction into their analysis of the absolute immunity question, a distinction that is unfounded and which this Circuit has never adopted. Cf. Oyler, 743 F.2d at 554 (noting that Illinois state immunity is not as broad as federal immunity, in part because Illinois provides immunity “for discretionary acts taken within the scope of [state officials‘] duty,” inferring that federal immunity extends to both discretionary and mandatory acts).7 The adoption of this distinction apparently derives from references by Justice Harlan in his plurality opinion in Barr, supra, that petitioner had appropriately exercised his discretion. 360 U.S. at 574-575, 79 S.Ct. at 1341-1342. Justice Harlan also emphasized that a person‘s rank was not material to a determination of immunity, although higher-ranking officials would probably receive more protection because such people are afforded a wider range of discretion, making more actions fall within the outer perimeter of their duties. Id. at 573, 79 S.Ct. at 1340. But the Court apparently meant that an official could receive immunity for discretionary acts, as well as for mandatory or ministerial ones. In justifying affording immunity for acts not required by law but undertaken in the individual‘s discretion, Justice Harlan wrote,
That petitioner was not required by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policy-making rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.
Id. at 575, 79 S.Ct. at 1341 (emphasis in original) (footnote omitted). In other words, Justice Harlan was explaining how immunity for discretionary decisions could be justified as being as much within an official‘s duty as his mandatory duties. The clear inference is that the discretionary-ministerial distinction is unfounded.8
As suggested above, the result reached by the Third, Tenth, and D.C. Circuits can be justified without resort to the ministerial-discretionary distinction, by arguing that absolute immunity is appropriate for governmental policy decisions alone and a medical treatment decision simply has no relation to the effective administration of government. This view has some force, especially when a statute such as
Indeed, the Third, Tenth, and D.C. Circuits all made reference either to
Case law Dr. Johnson cites in support of his position is singularly unpersuasive. The majority of cases relied on are quite old, predating Congress’ enactment of
Having found that the district court correctly denied absolute immunity to Dr. Johnson on Mr. Lojuk‘s malpractice claim of battery, we next consider the district court‘s denial of qualified immunity to Dr. Johnson on Mr. Lojuk‘s constitutional tort claim.
III
In Lojuk I we recognized that the plaintiff had “a constitutional liberty interest in avoiding the unwanted administration of ECT that must be protected under the Due Process Clause” of the
In the case at bar, Mr. Lojuk is unable to demonstrate that the liberty interest at stake was clearly established in March 1979. To meet this standard we have “required caselaw which clearly and consistently recognized the constitutional right.” Coleman v. Frantz, 754 F.2d 719, 730 n. 15 (1985). Specifically, that we were able to define the liberty interest at stake and find that it was protected by the Constitution is insufficient to determine whether the right was clearly established at the pertinent time. A reasonable government official cannot necessarily be expected to recognize the significance of a few scattered cases from disparate areas of the law for a right that is just evolving. Courts have given force to the qualified immunity concept to protect officials from liability imposed for conduct that from the vantage point of 1985 appears obviously to infringe constitutional rights but six years ago did not so clearly do so. Case law may exist that legitimates our recognition of the protected liberty interest, but it does not necessarily mean that the right was also clearly established. While cases involving the exact fact pattern at bar are unnecessary, case law in a closely analogous area is crucial to permit us to conclude that reasonably diligent government officials would have known of the case law, related it to the situation at hand, and molded their conduct accordingly.
In attempting to prove that the right to avoid unwanted administration of ECT was clearly established, Mr. Lojuk has pointed to several statutes, both federal and state. Last year the Supreme Court clarified the role statutes play in determining whether a constitutional right is clearly established. See Davis v. Scherer, --- U.S. ----, 104 S.Ct. 3012, 82 L.Ed.2d 139. Plaintiff argued there that Florida officials had violated his clearly established constitutional rights, but the Court rejected out of hand the contention that the law had been clearly established. Id. at ----, 104 S.Ct. at 3018-3019. Plaintiff argued in the alternative that even if defendants had not violated clearly established constitutional rights, they should be denied qualified immunity because they had violated a state administrative regulation. The Court also rejected this contention, holding firm to the “clearly established” analysis laid out in Harlow, supra. Id. at ----, 104 S.Ct. at 3019-3021.
In so holding the Court did not reject referring to statutes to prove the existence of clearly established constitutional rights, provided the statute in question has some bearing on the constitutional right, as when the statute creates the substantive right that the Due Process Clause then protects. Id. at ---- n. 11, 104 S.Ct. at 3019, n. 11. In the case at bar the right Mr. Lojuk asserts rises not from a statute but directly out of the
The major portion of the case law cited by plaintiff is inapposite to determining whether the right to refuse ECT treatment was clearly established. In Lojuk I we expressly held that
Likewise Mr. Lojuk‘s citation of Winters v. Miller, 446 F.2d 65 (2d Cir.1971), certiorari denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369, is unconvincing. Winters involved the forced medication of a Christian Scientist, whose religious beliefs precluded resort to drugs. The
Closer on point is our decision in Nelson v. Heyne, 491 F.2d 352 (7th Cir.1974), recognizing the rights of juveniles incarcerated in a medium security state correctional institution. Two arguments examined there relate to the case at bar. One involves the forced intramuscular administration of tranquilizing drugs; the other relates to the juveniles’ claimed right to rehabilitation and treatment. Because our analysis of the first argument turned on the
Nonetheless, our discussion in Nelson regarding the adequacy of treatment as a subset of the right to rehabilitative treatment bears on the instant situation. In fact we stated there “that the juvenile process has elements of both the criminal and mental health processes.” Id. at 360. But a close reading of the opinion reveals its inapplicability to the case at bar. Our discussion revolved around the juvenile justice system, so that the leap is fairly far from what is required for juveniles because they are imprisoned to what liberty interests regarding treatment decisions are retained by an involuntary mental patient. More importantly, the discussion still centered around the youths’ right to individual treatment to avoid being “warehoused” rather than rehabilitated. Id. The issue of consent, therefore, was not involved in our discussion, and the case certainly cannot stand as clear proof of the existence of an established liberty interest of the type infringed in Mr. Lojuk‘s case.
While Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711, involving the corporal punishment of schoolchildren, did reemphasize the importance of a person‘s freedom from bodily restraint and punishment, see id. at 673-674, 97 S.Ct. at 1413-1414, a right Mr. Lojuk‘s claim implicates, see Lojuk I, 706 F.2d at 1465, Ingraham itself discusses that right in a context fairly far removed from that of the involuntarily committed mental patients. Runnels v. Rosendale, 499 F.2d 733 (9th Cir.1974), discussed this right in the prison context, a case we recognize as being closely related to the situation at bar. Likewise, Rennie v. Klein, 462 F.Supp. 1131 (D.N.J.1978), affirmed, 653 F.2d 836 (3d Cir.1981) (en banc ), vacated in light of Youngberg v. Romeo, 458 U.S. 1119, 102 S.Ct. 3506, 73 L.Ed.2d 1381 (1982), on remand, 720 F.2d 266 (3rd Cir.1983) (en banc ), involved the forced medication of involuntarily committed mental patients.10 The district court in that case easily found a due process right to refuse treatment in 1978, which would suggest a clearly established right. But the force of this inference is undercut by the decision of a sister district court in the same circuit at roughly the same time that the
In summary, the most that plaintiff can point to is one district court case (Rennie ), one circuit court case (Runnels ), and several other decisions that are distantly related, at best.11 Such a showing is insufficient to prove that the right to refuse treatment was clearly established, so that we are barred from holding Dr. Johnson accountable for his violation of Mr. Lojuk‘s constitutional liberty interest. The district court‘s denial of qualified immunity is reversed, but its denial of absolute immunity is affirmed, and the case is remanded for trial. Each party will bear his own costs on appeal.
Notes
Mr. Lojuk‘s citation of Illinois case law concerning state medical malpractice law is unconvincing, because conduct that is a state common-law tort does not necessarily rise to the level of a constitutional tort. Cf. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (
We would simply note in passing that Dr. Johnson‘s citation of A.E. v. Mitchell, 724 F.2d 864, 865 (10th Cir.1983), is similarly not probative. The Tenth Circuit merely accepted the parties’ agreement that the right to refuse treatment was not a clearly established constitutional interest, and the court did not inquire further. Because the point was not at issue on appeal, the case hardly presents concrete proof that the liberty interest was not clearly established.