# Martinez v. Schrock

> Court of Appeals for the Third Circuit · June 25, 1976 · 537 F.2d 765

URL: https://www.frixlaw.com/law-library/cases/8899345

## Case

- **Full name:** Raphaela MARTINEZ, Administratrix ad Prosequendum and General Administratrix of the Estate of Miquel Martinez, Jr. v. Lawrence SCHROCK, M.D., and Ankia Chandrasekaran, M.D.
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 25, 1976
- **Citations:** 537 F.2d 765; 1976 U.S. App. LEXIS 8325
- **Precedential status:** Published
- **Opinion:** Concurrence by Adams
- **Judges:** Adams, Aldi, Aldisert, Dusen, Garth, Gibbons, Hunter, Rosenn, Seitz, Sert, Weis
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8899345

## Opinion text

ADAMS, Circuit Judge
(concurring in the result).
I concur in the judgment of the majority, but since I take a different route to arrive at the result, I write separately to state my views.
A.
The facts presented in Bailey v. DeQuevedo 1 may appear, at first blush, to resemble those of the present case rather closely, since both concern medical malpractice actions brought against physicians employed on a full-time basis by the United States Army. A distinction between the cases exists, though, by virtue of the different relationships the two injured parties bore to the military. Bailey was on active duty in the armed forces, and as a practical matter had no choice as to which doctor to utilize. Martinez, on the other hand, was retired, *770 and had the option of going to an Army doctor or to a civilian one.
The distinction is an important one, since the rationale utilized by the Court in Bailey was that of Feres v. United States, 2 a Supreme Court decision that also involved tort suits by persons who had been on active military duty at the time of their injuries. The suits in Feres were not brought against individual defendants, as in Bailey, but against the government, under the Federal Tort Claims Act. Focusing upon the unique “relationship of military personnel to the Government,” 3 the Supreme Court held the sovereign immune from suits brought under the Act by servicemen “where the injuries arise out of or are in the course of activity incident to service.” 4
When, several years later, the Supreme Court was faced in United States v. Brown 5 with a suit identical to that in Feres, except that the plaintiff was a discharged veteran — precisely the difference that exists between Bailey and Martinez — it expressly distinguished Feres on that basis. Because Brown was not on active duty when he was injured, the proceedings were allowed to go forward. The Supreme Court observed that the rationales underlying the result in Feres • — “[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty” 6 — did not apply to actions brought by military personnel not on active duty. In so doing, the Court specifically “adhere[d] ... to the line drawn in the Feres case” 7 between injuries that arose in the course of active military duty and those that did not.
The Bailey Court recognized that Feres was not precisely on point, since the defendants in Bailey were the allegedly negligent physicians rather than the government, but it nonetheless adopted the Feres reasoning. 8 Significantly, the Court then proceeded to point out the difference between Feres and Brown, in order to demonstrate that the former rather than the latter was the correct analogue to Bailey 9 The case before us today is closer to Brown than to Feres, however, since Martinez was not on active duty at the time of the operation in question, and of course his executor was not on duty at the time of suit. As such, the Brown holding would appear to be more persuasive than that of Feres, which applied a rule of absolute immunity.
I thus conclude that Bailey does not require that we automatically immunize the defendants here. Consequently, I cannot agree with the determination of the majority that Bailey should be the starting point of the analysis or with the implication that Bailey is binding.
B.
Even if Bailey could stand for the proposition that Army physicians are absolutely immune from a suit brought by retired military personnel, it ought not govern the result here. The decision in Bailey came at a time when government officials with discretionary duties “enjoyed an absolute immunity from damage suits” 10 if they were acting “within the outside perimeter of [their] line of duty . . . .” 11 It is not *771 disputed that the physicians here were within such perimeter in performing the operation in question.
In the nine years since Bailey, however, the law of immunity has undergone a marked change. One commentator has observed that “[t]he common law doctrines of personal immunity for official acts were revitalized” 12 by the decision of the Supreme. Court in Pierson v. Ray, 13 which came down eight days after Bailey. Further evolution has occurred since then. 14
The rule of absolute immunity that prevailed at the time of Bailey has been modified by the Supreme Court into a standard of qualified immunity which, as stated in Scheuer v. Rhodes, 15 is dependent upon “the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.” In view of the all-the-circumstances test that is to be applied, the Supreme Court, as pointed out by the majority, “has not fashioned a fixed, invariable rule of immunity . . ..” 16
As noted in Chief Judge Seitz’s dissenting opinion, a number of the more recent Supreme Court decisions have involved the immunity of policymaking executive officials, and thus are factually distinguishable from the case now before us. The principles and the approach in the extant immunity decisions would appear to be useful in the present context, however, even though the Supreme Court has not addressed such a situation.
Thus, in Doe v. McMillan, 17 a suit against the Public Printer, the Superintendent of Documents, and others for invasion of privacy, the Supreme Court stated that the doctrine of official immunity insulates “[government officials of suitable rank for the reason that ‘officials of government should 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.” 18 Although the last three words of the quotation do not specifically apply to army physicians, the two conflicting considerations underlying the doctrine of immunity are as applicable to military doctors as to policy-making officials. They are:
On the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious ae *772 tion 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. 19
The defendant doctors in this case are skilled professionals employed by the government. They must exercise, in the course of their daily employment, a careful discretion, — albeit not precisely of the same type adverted to in Doe and Barr — that has a direct impact on their patients. It would disserve the public interest if these governmental physicians had to concern themselves with the possibility of a monetary judgment each time they were faced with a discretionary decision. Thus, it would not seem realistic to suggest, as the reasoning employed by the dissent might, that a government agent in charge of a HUD office in a small town, for example, would be clothed with immunity when determining whether the government should insure a mortgage agreement, but that the chief surgeon at a military hospital in a major metropolis, deciding whether to perform difficult surgery, would not be.
Nor can the absence of congressional legislation respecting this situation be deemed controlling on the question whether the defendants should be immunized. It is true that Congress has specifically given immunity to medical personnel in the Veterans’ Administration 20 and the Public Health Service, 21 but has not yet approved the legislation that has been proposed to immunize military medical personnel. But as is often the case, the meaning of the failure to enact legislation is inscrutable: Has Congress chosen to limit immunity to physicians in the Veterans’ Administration and Public Health Service? Or has it decided that the scope of immunity already afforded military doctors through judicial decisions is sufficient, so that legislation is unnecessary? 22 It may be that the proponents of the legislation dealing with army physicians wished all such physicians to be immune, regardless of a balancing approach, so that even if no tort action against the government were available or if the harm resulted from a nondiscretionary act — such as failure to remove a sponge— the physician would nonetheless be protected. The legislative pattern cannot be determinative, for “[t]he official immunity doctrine . . . ‘has in large part been of judicial making . . .’” 23 In the absence of guidance from the Congress, the courts face no statutory or constitutional obstruction to the interpretation or fashioning of the doctrine. 24
Since qualified immunity would thus appear to be applicable, it is necessary to follow the all-the-circumstances approach mandated by the Supreme Court in such cases. After such evaluation, I conclude that the defendants here should be held immune from a suit for damages.
Many of the important factors bearing on this case are set forth rather fully in the majority opinion. In my view, the most determinative ones, in capsule form, are: (1) the defendants were Army physicians on active duty, and as such were required to perform the operation upon Martinez; (2) the plaintiffs have an alternative remedy *773 against the United States under the Federal Tort Claims Act; (3) a holding that the defendants are subject to suit may be unduly harsh, particularly when there is an indication that they do not carry malpractice insurance; and (4) the risk of liability may deter competent physicians from embarking upon a career in the military, a development that would be counter to the national interest. 25
Were one or more of the relevant factors missing — for example, if no alternative remedy existed — the balance could well be different. But an approach that regards Bailey as the controlling precedent and thus supplies absolute immunity in all military situations, or which provides for no immunity in any situation involving army physicians, would not permit the flexibility that would allow us to reweigh the totality of the considerations presented by cases that may arise in the future.
. 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923 , 88 S.Ct. 247 , 19 L.Ed.2d 274 (1967).
. 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950).
. Id. at 146 , 71 S.Ct. at 159 .
. Id.
. 348 U.S. 110 , 75 S.Ct. 141 , 99 L.Ed. 139 (1954).
. Id. at 112 , 75 S.Ct. at 143 .
. Id. 348 U.S. at 113 , 75 S.Ct. at 144 .
. 375 F.2d at 74 .
. Id.
. Note, Damages for Federal Employment Discrimination, 85 Yale L.J. 518 , 527 (1976).
. Barr v. Matteo, 360 U.S. 564, 575 , 79 S.Ct. 1335, 1341 , 3 L.Ed.2d 1434 (1959) (Harlan, J., announcing the judgment of the Court). Barr was the leading case at the time Bailey was decided.
. McCormack, Federalism and Section 1983, 60 Va.L.Rev. 1, 10 (1974).
. 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967).
. See, e. g., 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). Cf. Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 , 44 U.S.L.W. 4250 (1976).
. 416 U.S. 232, 247 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974) (emphasis added). In the words of the Fifth Circuit, “[ajbsolute immunity . is a juridical relic, expressly rejected by the Supreme Court in both Wood and Scheuer.” Jones v. Diamond, 519 F.2d 1090, 1101 (5th Cir. 1975).
It is suggested in Chief Judge Seitz’s dissenting opinion that considerations relevant to suits such as Scheuer and Wood, brought under 42 U.S.C. § 1983 , are not applicable to suits such as this, brought against federal officials. It would appear, however, that this Court has expressed a contrary view. Fidtler v. Rundle, 497 F.2d 794, 801 (3d Cir. 1974); Bethea v. Reid, 445 F.2d 1163, 1166 (3d Cir. 1971), cert. denied, 404 U.S. 1061 , 92 S.Ct. 747 , 30 L.Ed.2d 749 (1972).
. Doe v. McMillan, 412 U.S. 306, 320 , 93 S.Ct. 2018, 2028 , 36 L.Ed.2d 912 (1973). See Paton v. LaPrade, 524 F.2d 862 , 872 (3d Cir. 1975); Note, The Supreme Court, 1974 Term, 89 Harv.L.Rev. 47, 220 (1975).
In Henderson v. Bluemink, 167 U.S.App.D.C. 161 , 511 F.2d 399 (1974), the District of Columbia Circuit recognized a distinction between governmental discretion and medical discretion, and declined to immunize the defendant physician at all.
. 412 U.S. 306 , 93 S.Ct. 2018 , 36 L.Ed.2d 912 (1973).
. Id. at 319 , 93 S.Ct. at 2028 (quoting Barr v. Matteo, 360 U.S. 564, 571 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959)).
. Id. (quoting Barr v. Matteo, supra at 565 , 79 S.Ct. at 1336 ).
. 38 U.S.C. § 4116 (Supp. IV, 1974).
. 42 U.S.C. § 233 (1970).
. Congress immunized VA doctors in 1965, Act of Oct. 31, 1965, Pub.L. No. 89-311, § 6 (a), 79 Stat. 1156 , but did not act to immunize PHS doctors until three years after this Court’s Bailey decision, Act of Dec. 31, 1970, Pub.L. No. 91-623, § 4 , 84 Stat. 1870 . Did Congress assume that army physicians had already been immunized by judicial decision when it addressed the immunity of VA doctors? of PHS doctors? Or did Congress intend specifically to exclude army doctors from protective cloak of immunity? There is no evidence whatsoever to indicate the latter.
. Doe v. McMillan, supra 412 U.S. at 318 , 93 S.Ct. at 2028 (quoting Barr v. Matteo, supra 360 U.S. at 569 , 79 S.Ct. 1335 ).
. Id. at 323, 93 S.Ct. 2018 .
. Contrary to the suggestion in Chief Judge Seitz’s dissent, these factors would be present each time a retired military person seeks medical care from an army physician; they are not unique to this particular case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8899345. Public record. Not legal advice.