Romeo v. Youngberg

ALDISERT, Circuit Judge,

with whom Judge GARTH joins, concurring.

Although I join the concurring opinion of Chief Judge Seitz'in all respects, I write separately to emphasize the two important differences, one conceptual and one pragmatic, that divide this court.

I.

The concurring judges approach this troublesome problem in the grand tradition of the common law, precisely 'distinguishing between the elements of a due process deprivation and the elements of the state tort of medical malpractice. Chief Judge Seitz emphasizes with elegance and profound jurisprudential integrity that not all state law torts amount to due process deprivations. He contends that in the factual complex presented here, a prima facie case of a due process deprivation is established only by proof of “such a substantial departure from accepted professional judgment, practice, or standards ... as to demonstrate that the defendants did not base their conduct on a professional judgment,” or, in other words, that the treatment technique employed was “a sham or otherwise illegitimate.” Con. op. of Seitz, C. J., at page 178.

In the common law tradition, courts resolve disputes by examining the rules laid down by prior decisions. These are rules of law in the narrow sense, “precepts attaching a definite detailed legal consequence to a definite, detailed state of facts,” 1 or “fairly concrete guides for decision geared to narrow categories of behavior and prescribing narrow patterns of conduct.” 2 The common law “creeps from point to point, testing each step” 3 and grows slowly by gradual accretion from the resolution of specific problems. Holmes noted that the great growth of the common law came about incrementally. 4 Courts fashion principles from a number of rules of decision, in a process characterized by experimentation. Rules of case law are treated not as final truths, “but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice.” 5 The common law tradition has been described as a method “of reaching what instinctively seem the right result in a series of cases, and only later (if at all) enunciating the principle that explains the pattern — a sort of connect-the-dots exercise.” 6

Chief Judge Seitz adheres to this tradition in two respects. First, he sets forth a detailed legal consequence for the detailed set of facts in this case. By contrast, the majority’s formulation is cast in terms of grandi astrazioni, predicating liability on notions of “substantial necessity,” “compelling necessity,” and “least intrusive means.” These abstractions, dubbed in classroom jargon as constitutional law “buzz words,” have the unfortunate capacity to mean all things to all people.

Second, Chief Judge Seitz develops the law incrementally, explaining how a respectable body of state tort law, built on thousands of fact situations resolved by courts over several centuries, is immediately available to the plaintiffs. If the plaintiffs prove egregious conduct constituting gross negligence and demonstrate that the treatment or lack of treatment may be fairly characterized as a sham, the plaintiffs would have available additional relief to cure the constitutional deprivation. Thus, *183 he recognizes that the plaintiffs carry separate arrows in their quiver: state malpractice relief for certain levels of conduct falling below standards of reasonable medical practice, and federal relief under 42 U.S.C. § 1983 if the conduct is sufficiently egregious to violate the fourteenth amendment.

By approaching the case from the common law perspective, Chief Judge Seitz recognizes a tenet recently articulated by one of America’s great law schools, to which I subscribe completely:

The United States, more than any other country, has been a country of law, laws, and lawyers; nowhere else is so much of the ferment of society expressed in terms of a Constitution.... We have come, however, to see that all the great issues of the day are not concentrated on constitutional law ... but that contemporary problems embrace and are informed by a variety of public law fields, from tax and administrative law to health, labor and penal law. We have come to see, also, that the traditional private law subjects —contracts, torts, and property, for instance — are more and more intertwined with considerations of public law and public interest; and further, that much of the traditional learning in these subjects is not revealed truth, but a reflection of values of society at given periods of time. 7

Rather than creating overriding constitutional precepts that obfuscate the role of tort law in correcting institutional abuses, he relies on the Anglo-American tort law experience for a more principled resolution of this controversy.

Although the majority purport to recognize and preserve the distinction between claims under the Constitution and claims under state tort law, their decision actually blurs that distinction. By formulating a standard for constitutional deprivation low enough to be asserted in virtually all malpractice actions arising out of the treatment of the institutionalized retarded, the majority place a substantial burden on lay juries, who must avoid confusing the elements of these related claims. Notwithstanding my high regard for lay jurors, I doubt that medical professionals, much less laymen, can foresee the ramifications of the majority’s due process standards.

In addition, by promulgating standards for due process claims that are facially almost indistinguishable from malpractice allegations, the majority have effectively extended federal jurisdiction into all malpractice claims arising in state institutions. Although diversity is currently required to litigate state tort claims in the federal courts, future plaintiffs will be able to assert, undoubtedly in good faith, that the state treatment had no “coherent relationship” to their needs, that they were restrained without “compelling necessity,” or that they were left unprotected without “substantial necessity.” These plaintiffs will be able to assert federal jurisdiction under 28 U.S.C. § 1343 (3), and append their claims of malpractice. I do not doubt that the federal courts of this circuit will soon be repositories for all personal injury claims arising in state institutions for the mentally retarded. Indeed, that appears to be the majority’s intent, for they advance the rather peculiar notion that these situations, in which a person has been committed to a state institution by a state process, subject to state control through state employees, present issues not primarily of state concern, but “fundamental issues of national import.” Maj. op. at page 170. This expansion of jurisdiction deserves greater consideration than just one case.

II.

The majority’s abandonment of incremental decisionmaking in favor of promulgation *184 of broad standards is not only methodologically offensive, but lacks utility for the groups most affected by this decision. As the preceding concurring opinion notes, the complexity and confusion of the majority’s formulation “will affect both the ability of a jury to meaningfully assess liability and the ability of state officials like the defendants to effectively conform their conduct to these standards.” Con. op. of Seitz, C. J., at page 174. But the confusion will not start at the door of the jury room. In making decisions on motions for summary judgment or directed verdict, the district judges will be grasping at ropes of sand when they attempt to perceive the current wisdom of “substantial necessity” in one category of behavior or “compelling necessity” in another. And to predict what a given panel of this court will do on review would be akin to interpreting the speech of Pythia after she chewed the laurel leaves at Delphi.

But many persons besides juries, judges, and legal philosophers must participate in this divining process. There are staff physicians and, more important, staff attendants. Staff attendants, even more than physicians, are responsible for the hour-by-hour operation of state mental institutions, and their activity has now become strictly regulated by amorphous constitutional law tenets. We can assume that these attendants have neither the intellectual acumen nor the constitutional law insight possessed by Anthony Amsterdam, Gerald Gunther, Archibald Cox, or Laurence Tribe. Yet the majority formulation now requires them to apply these new constitutional precepts in deciding, for example, whether to employ “soft restraints,” metal shackles, or a leather muff to control a disruptive patient. See con. op. of Seitz, C. J., at page 179 n.3. As a result, staff attendants as well as staff physicians will be compelled to seek legal counsel. Their attorneys will then prophesy “what the courts will do in fact . . . .” 8 The lawyers, even specialists in medical malpractice, public or hospital administration, or casualty insurance underwriting, will be hard pressed to formulate guidelines.

One obvious situation in which guidelines will be difficult to formulate comes to mind. The plaintiff here complained of seventy separate injuries. We can assume that some were self-inflicted; some were inflicted by fellow patients, retaliating from the plaintiff’s aggressive behavior. The majority formulation makes it a violation of the United States Constitution to shackle one patient improperly, and a separate violation if an unrestrained patient attacks another patient. In the real world environment of a hospital ward the staff attendant must decide which constitutional right deserves protection. The decision must be made amid the cry and tumult of a mental hospital, not in the cloister of the Third Circuit law library, nor in the conference room of nine circuit judges who are divided five to four on a difficult problem.

It took centuries for the common law to move from thirteenth century notions of criminal trespass to the landmark decisions establishing trespass on the case, now modern day negligence. 9 It took the French from July, 1790, to March, 1804, to formulate the French Civil Code, 10 and the Germans from 1873 to 1896 to fashion the Burgerliches Gesetzbuch (BGB). 11 More recently, it took fifteen years of incremental development to produce strict liability for defective products. 12 Attorneys at *185 tempting to advise clients by predicting the effect of today’s decision on specific fact patterns will be deprived of the body of law leading to the broad standards promulgated by the majority. Their ability to predict will suffer, and the persons most affected will be those who seek legal advice.

The majority’s purpose is admirable. They recognize that the disposition of this case will presage an expansion of litigation involving the constitutional rights of the institutionalized mentally ill. In an attempt to aid the lower courts in dealing with the anticipated cases, the majority formulate general standards for evaluating these claims. But their approach does not accord with the common law adjudicatory tradition of proceeding gradually and empirically. The direction and instructions presented are thus founded not on experience, but on speculation. It is not surprising that this attempt to achieve predictability in disregard of the common law tradition achieves just the opposite result. All persons who must rely on these standards— institutional staffs, physicians, their attorneys, district judges, and subsequent panels of this court — will struggle to determine the context in which the claim arose, 13 and then to apply the appropriate standard for that context. The resulting confusion will undermine the majority’s attempt to formulate universal precepts on a limited record. I predict that this court’s current inexperience in this area will become increasingly apparent in subsequent cases.

The majority have failed to recognize that every new case is an experiment, and that if the accepted rule that seems applicable yields a result felt to be unjust, under the common law tradition, the rule is reconsidered. “[I]f a rule continues to work injustice, it will eventually be reformulated.” 14 As Chief Judge Seitz explains, however, “[a] statute is relatively easy to change but the Constitution is not.” Con. op. of Seitz, C. J., at page 178.

It has been almost twenty years since I faced a client across a law office desk. But were I to be placed in that position today, my advice would probably go like this: if you are contemplating a position as an attendant in a mental hospital, seek another job; there is simply too much unpredictability in the law governing your conduct. If you are a physician, make certain that the state’s malpractice insurance policy includes a clause protecting you from the new “constitutional torts” manufactured today by the Third Circuit Court of Appeals. If you are an insurance carrier, set your premiums high, anticipating fully and completely the open-ended notions of “substantial” and “compelling” necessity and “least intrusive treatment.” If you are a governor or state legislator, cut back and retrench institutional programs for the mentally retarded, because the potential for lawsuits has now increased geometrically, with corresponding demands on the tax base to support the costs. If you are a parent with a retarded child, I simply feel sorry for you. The sincere effort to provide financial relief for personal injuries suffered by retarded persons has been accomplished at an enormous social cost. In striking the balance between how seriously the complainants are being hurt and how much it will cost to afford them more relief than is presently available under state tort law, the balance has been struck so vaguely that state institutional programs, already diminishing, will be curtailed further. Given the recent political currents, there simply are not, and will not be, sufficient tax dollars, state or federal, to give the defendants adequate financial protection to meet the illusory standards promulgated today.

. Pound, Hierarchy of Sources and Forms in Different Systems of Law, 7 Tulane L.Rev. 475, 482 (1933).

. Hughes, Rules, Policy and Decision Making, 77 Yale L.J. 411 , 419 (1968).

. A. Whitehead, Adventures of Ideas ch. 2, § 6 (1967).

. Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 468 (1897).'

. M. Smith, Jurisprudence 21 (1909).

. Ely, The Supreme Court 1977 Term, Foreword: On Discovering Fundamental Values, 92 Harv. L.Rev. 5, 32 (1978) (citing Amsterdam, Perspectives of the Fourth Amendment, 58 Minn.L.Rev. 349, 351-52 (1974)). See also Arnold, Professor Hart’s Theology, 73 Harv.L.Rev. 1298, 1311-12 (1960); Holmes, Codes and the Arrangement of the Law, 44 Harv.L.Rev. 725, 725 (1931).

. Curriculum Committee Report, New York University School of Law, November 30, 1978, reprinted in An Introduction to New York University School of Law, Juris Doctor (J.D.) Program 1980-1981 (cover page).

. Holmes, supra note 4, at 461.

. See W. Prosser, Handbook of the Law of Torts ch. 2, § 7 (4th ed. 1971).

. See A. von Mehren & J. Gordley, The Civil Law System 48-51 (2d ed. 1977).

. See id. at 73-77.

. This development is generally measured from Roger J. Traynor’s concurring opinion in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 457 , 150 P.2d 436, 440 (1947) (Traynor, J., concurring), to his majority opinion for the court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 , 377 P.2d 897 , 27 Cal.Rptr. 687 (1962).

. The three contexts are physical restraints, which must be justified by “compelling necessity,” maj. op. at page 160, protection from physical attacks, the absence of which must be justified by “substantial necessity,” maj. op. at page 164, and adequacy of treatment, which must be justified by “a coherent relationship between a particular treatment program and a resident’s needs,” maj. op. at page 170.

. M. Smith, note 5 supra, at 21.