negligent conduct.18 Although some administrative acts might fall with the discretionary function exclusion,19 the courts have generally held that activities associated with the furnishing of medical care do not call for the exercise of discretion within the meaning of the FTCA.20 Consequently, negligence in the performance of such activities will subject the United States to liability, notwithstanding the high degree of professional judgment involved.

(2) Assault and battery-In addition to the above exclusion, the FTCA expressly excludes a variety of claims based upon intentional wrongs, two of which are assault and battery. An assault committed upon a patient or some other person by a Government employee would not give rise to a claim against the United States.21 Whenever the acts of physicians, nurses, or other personnel engaged in patient care (dentists, physiotherapists, X-ray technicians, etc.) involve any unconsented touching of a patient, a technical "battery" is committed, despite the fact that the objective may be to benefit the individual in question.22 Under this exclusion, the Government has been held not liable for such an unconsented touching in the cele

18 This would include liability for any act or omission amounting to negligence, including negligent treatment, improper diagnosis, defective equipment, etc. There is a split of authority as to whether the release of a patient is a "discretionary function" within the meaning of 28 U.S.C. 2680(a), the better reasoned cases holding that the judgment rendered in such cases is not a discretionary function. Fair v. United States, 234 F. 2d 288 (5th Cir., 1956); White v. United States, 317 F. 2d 13 (4th Cir., 1963). Cf. Smart v. United States, 207 F. 2d 841 (10th Cir., 1963). See note, “Liability of Hospitals for Wrongful Discharge of an Admitted Patient," 19 U. Miami L. Rev. 652 (1965).

19 In Voracheck v. United States, 337 F. 2d 797 (8th Cir., 1965) the unauthorized release of clinical information to the patient's former wife was held to be a discretionary function, and therefore not the basis for a tort claim against the United States.

20 Decisions made by PHS medical personnel in the course of treating PHS beneficiaries are essentially medical determinations, which do not differ in kind from those made by private physicians under like circumstances. To be within the reach of the discretionary function exclusion, the discretion involved must relate specifically to the business of the Government while acting as a Government. See Jayson, L. S.: “Application of the Discretionary Function Exception," 24 Fed. B. J. 153, 160 (1964).

21

Richardson v. United States, 226 F. Supp. 49 (E.D. Va., 1964); Stepp v. United States, 207 F. 2d 909 (4th Cir., 1953) cert. denied 347 U.S. 933 (1954). Cf. Rufino v. United States, 126 F. Supp. 132 (D.N.Y., 1954).

22 Since the crux of an action for battery is absence of legal consent, it is no defense that the unauthorized treatment was given with a high degree of skill or that it actually benefited the patient. Church v. Adler, 351 Ill. App. 471, 113 N.E. 2d 327 (1953). See discussion infra, pp. 28-33, and accompanying notes.

brated case of Moos v. United States, 225 F. 2d 705 (8th Cir., 1955) in which a VA patient authorized an operation on his right leg and hip and the Government surgeon operated on the left leg and hip. Under subsequent judicial scrutiny, the validity of this decision has been seriously questioned.23

24

(3) False imprisonment-Another type of tort claim involving willful behavior which is specifically excluded under the FTCA is the tort known as false imprisonment." False imprisonment is the wrongful interference with the personal liberty of an individual, resulting in his unlawful detention. No actual force is necessary, nor must malice be present, but the detention must be against the will or consent of the individual, through fear of physical harm for refusing to comply. There can be no action for false imprisonment where there is proper legal authority for the detention, as in the case of a police arrest or a detention ordered by a court of appropriate jurisdiction. Under the false imprisonment exclusion of the FTCA, the detention of a hospitalized patient against his will would not give rise to a claim against the Government.25

(4) Misrepresentation—A claim for damages based on a misrepresentation made by a Government employee is likewise not actionable. The crux of a claim based on misrepresentation is a false or misleading statement, but it need not be willful, and even a negligent misrepresentation has been held sufficient to bring a claim within the statutory exclusion. While misrepresenting the known

23

26

Lane v. United States, 225 F. Supp. 850 (E.D. Va., 1964) involved circumstances identical with those in the Moos case, but the court declined to apply the FTCA battery exclusion on the ground that there was no showing of an intentional wrongful act on the part of the operating surgeon.

24 Morton v. United States, 228 F. 2d 431 (D.C. 1955) cert. denied 350 U.S. 975 (1955); Duenges v. United States, 114 F. Supp. 751 (S.D.N.Y., 1953).

25 In Blitz v. United States, 328 F. 2d 596 (2d Cir., 1964), a veteran's action against the United States for his illegal detention for psychiatric treatment was dismissed as a claim based on false imprisonment, and therefore not actionable against the United States. Significantly, the veteran's companion suit against the VA physician who ordered the detention was also dismissed, on the basis of the official immunity doctrine. Blitz v. Boog, 328 F. 2d 596 (2d Cir., 1964). With regard to the right to restrain and detain mentally ill patients generally, see discussion infra, page 60.

26

Hall v. United States, 274 F. 2d 69 (10th Cir., 1959); Bartie v. United States, 216 F. Supp. 10 (D. La., 1963); aff'd 326 F. 2d 754 (5th Cir., 1964); cert. denied 379 U.S. 852 (1964).

hazards of a course of medical treatment, the chances for complete recovery, or the harmlessness of radiation or drug therapy, would theoretically fall within this exclusion, the applicability of the exclusion in this context is extremely doubtful where plaintiff alleges and can prove negligence in the conduct of the medical or research regimen undertaken.27

SEC. 3

PERSONAL

LIABILITY OF PUBLIC HEALTH

SERVICE EMPLOYEES

(a) Legal Rationale

The liability of an agent for his own negligence has long been embedded in the law, and this principle applies even to certain acts of public officers. In consequence of this rule, it has been held that employees of the Federal Government, except in the isolated instances noted below, may be held personally liable for their own torts to third persons even though committed in the course of their Government employment." In this regard, acts of medical negligence are no exception to the rule, and the fact that the physician or dentist is authorized to practice medicine for the Government, either with or without compliance with State medical licensure requirements,31 affords no cloak of immunity.

30

(b) Doctrine of Official Immunity

To be clearly distinguished from acts of medical negligence are torts based upon acts which necessarily involve the exercise of a policy judgment or an administrative discretion that public policy

"See discussion concerning informed consent infra, pp. 28–34.

28

Brady v. Roosevelt S. S. Co., 317 U.S. 575 (1943); RESTATEMENT OF AGENCY, § 401; Davis, K. C., “Administrative Officers' Tort Liability," 55 Mich. L. Rev. 201 (1956). Burk v. United States, 116 F. Supp. 337 (S.D. Tex., 1953); Henning v. Ebersole, 166 N.Y.S. 2d 167 (1957); G.E.I.C.O. v. Ziarno, 273 F. 2d 645 (2d Cir., 1960).

30

See, for example, Allman v. Hanley, 302 F. 2d 559 (5th Cir., 1962), involving a suit by a civilian employee of the United States against medical officers of the U.S. Air Force. Cf. Bailey v. DeQuevedo, 241 F. Supp. 335 (E.D. Pa., 1965) and Bailey v. Van Buskirk, 345 F. 2d 298 (9th Cir., 1965) involving suits by military personnel. These cases are discussed infra, pp. 15-16.

31

"It is a well-established principle that activities of the Federal Government are not subject to State inspection laws or licensure requirements. United States v. Murray, 61 F. Supp. 415 (E.D. Mo., 1945); 31 Comp. Gen. 81 (1951).

requires be made without fear of personal liability.32 In these instances, the law has shielded the employee from personal liability in the public interest since, as noted by the Supreme Court, the constant threat of retaliation by aggrieved persons "would dampen the ardor [in carrying out their official duties] of all but the most resolute, or the most irresponsible [Government employees] in the unflinching discharge of their duties." 33 The doctrine of official immunity has been applied to the following torts: malicious prosecution, false arrest, false imprisonment, battery in making an arrest, malicious assault, libel, and other similar torts.34 Within the medical context, the doctrine has thus far been applied in only limited instances, primarily involving Government psychiatrists who have been sued for libel (when making a report stating that plaintiff was insane),35 for false imprisonment (when ordering the detention of plaintiff in a mental hospital), and for malicious defamation [when evaluating a serviceman's mental condition for an Air Force Physical Evaluation Board]. It should be emphasized, however, that the doctrine has not been applied more broadly and cannot be relied upon to shield Government employees from personal liability for acts of negligence in direct patient care activities.

37

36

(c) Suits Against PHS Employees

Apart from those areas of judgment and discretion noted above, in which the courts have held individual Government employees immune from suit for their tortious conduct, in all other governmental activities the fundamental principle of personal liability for one's own torts applies. A person who has suffered harm due to the negligence of a Government employee is not required to sue the

32

Bradley v. Fisher, 80 U.S. 335 (1872); See also "Tort Liability of Governmental Units and Their Officers," 22 Univ. Chi. L. Rev. 610 (1955).

Learned Hand, J., in Gregoire v. Biddle, 177 F. 2d 579 (2d Cir., 1949) cert. denied 339 U.S. 949 (1949).

* See Norton v. McShane, 332 F. 2d 855 (5th Cir., 1964) for a comprehensive review

of these cases, none of which involved acts amounting to medical malpractice.

36

Blitz v. Boog, 328 F. 2d 596 (2d Cir., 1964). The detention of patients who are mentally ill is discussed at length infra, page 60.

United States and he may, if he so chooses, sue the individual employee alone.38 Should he elect to sue the United States, rather than the negligent employee, and be successful in recovering a judgment against the United States, he cannot thereafter bring an action to recover damages from the employee whose negligence gave rise to the claim.39 Moreover, the Supreme Court has held that the Government cannot recover indemnity from the employee for whose negligence it has been required to pay damages under the FTCA.40

While the chances of a personal suit being brought against a PHS employee are more remote than most PHS employees believe, nevertheless, the risk of being sued personally is an ever-present one, and must be faced as a definite hazard by all PHS medical personnel. This exposure to personal financial liability looms as a serious problem to all such personnel, but perhaps more so to the many young and relatively inexperienced physicians and dentists who enter the PHS each year shortly after completing their formal medical and dental school training. Few have the financial resources sufficient to compensate a successful plaintiff in a malpractice case, where the damages frequently run in the thousands of dollars. In the absence of any statutory immunity from personal liability," the only real measure of protection and security to the PHS employee against claims of this sort is that afforded by a professional liability (malpractice) insurance policy.12

It should be noted that a plaintiff must decide whom he will sue. The law does not permit him to join the United States and one of its employees as codefendants in a tort action under the FTCA. Prechtl v. United States, 84 F. Supp. 889 (W.D.N.Y., 1949); Uarte v. United States, 7 F.R.D. 705 (S.D. Calif., 1948).

39 28 U.S.C. 2672.

40

1o United States v. Gilman, 347 U.S. 507 (1953).

"Such immunity was recently granted to medical and paramedical employees of the Veterans' Administration under Public Law 89-311, 38 U.S.C. 4116.

42

12 All PHS professional medical personnel should be cognizant of the real measure of security afforded by private malpractice insurance coverage. In addition to protection against claims arising out of medical care given in PHS facilities, a malpractice policy would also provide protection for acts of malpractice which might occur (1) in a university hospital where a PHS employee is participating in a training program, (2) at the scene of a highway accident, (3) while giving gratuitous medical treatment to a neighbor, and (4) in other non-PHS environments.