Petition — Raphaela Martinez, Etc. v. Lawrence Schrock
Supreme Court brief1977
Ask Donna
What actually matters in this document.
Text
Supreme Court, U. &
] FILED
SEP 20 M6
| MICHAEL RODAK, JR. CLERK
Supreme Court of the United States ——
Ocroser TerM, 1976
No.
“6-530q
RAPHAELA MARTINEZ,
Administratrix ad Prosequendum and
General Administratrix of the Estate of
Miguel Martinez, Jr., deceased,
IN THE
Petitioner,
vS.
LAWRENCE SCHROCK, M.D. and
ANKIA CHANDRASEKARAN, M.D.
Respondents.
PETITION FOR A Warr oF CERTIORARI
ro THE UnNttrep States Court or APPEALS
FOR THE Turrp Criracurt
PETITION FOR WRIT OF CERTIORARI
ROBERT F. NOVINS,
NOVINS, FARLEY, GROSSMAN,
LISTON & YORK,
Counsel for Petitioner,
202 Main Street, CN 2032
Toms River, New Jersey 08753
N.J. Appellate Printing Co., Inc., South Plainfield, New Jersey (20!) 753-0200
TABLE OF CONTENTS
Petition for Writ of Certiorari to the United States
CI as x aSibweokbn oer cde scene nk n.Ges l
ay src ws «dawn Ue duane kA has 4 Pee ON l
A cea si. Cl taka eae el ea swans 1
SE IE coin cccccvceicsncvauescs 4 1
Gtatemment of Gio Came ........cccccccseee _ l
Reasons for Granting the Writ .................. 38
SN 0 ee ae ea are nes 8
Cases CITED:
Barr v. Matteo,
es OD wd bdo nectkoevctebas 5, 6, 7
Doe v. McMillian,
Nee oe 7
Feres v. United States,
340 US. 135 (1080) .................05. 5, 6, 7
Henderson v. Bluemink,
511 F.2d 399 (D.C. Circuit 1974) ...... 3, 5, 6
United States v. Brown,
$06 WS. 100 (0D «5.0.56 ook sok. 5, 6-7
TABLE OF CONTENTS
APPENDIX
Opinion of the Court of Appeals ......,..-..+5-05-
Letter Opinion of the United States District Court ..
Complaint and Demand for Jury .....-.-- +++ +--+:
Petition for Removal .............-.0eeeeeeeeee:
Notice of Filing Verified Petition for Removal ....
Notice of Motion to Dismiss Complaint ............
Brief in Support of Defendants Motion to Dismiss ..
Memorandum of Law of Plaintiff ................
Order Granting Motion of Defendant .........-.-
Notice of Appeal of Plaintiff ..........-..-..+5:.
SUPREME COURT OF THE UNITED STATES
Ocrospep TERM, 1976
No.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
Petitioner, Raphaela Martinez, Administratrix ad
Prosequendum and General Administratrix of the Estate
of Miguel Martinez, Jr., deceased, prays that a writ of
certiorari issue to review the judgment of the United
States Court of Appeals for the Third Circuit entered
June 25, 1976, affirming the judgment of the United States
District Court dismissing the within action, and that on
hearing that judgment be reversed.
OPINIONS BELOW
The opinion of the Court of Appeals, included in
Petitioners Appendix at page A-l, is now reported at
537 F.2d 765.
The letter opinion of the United States District Court
is included in Petitioner's Appendix at A-20.
JURISDICTION
The judgment of the Court of Appeals was entered
on June 25, 1976.. This Court has jurisdiction under 28
U.S.C.A. § 1254 (1).
QUESTIONS PRESENTED
1. Whether Respondents, two Army surgeons, are
immune from suit for medical malpractice allegedly com-
mitted upon Petitioner's decedent, an Army retiree en-
titled to the services of Army medical personnel.
STATEMENT OF THE CASE
This is an action for wrongful death as a result of
medical malpractice originally instituted by plaintiff,
2 Statement of the Case
Raphaela Martinez, Administratrix ad Prosequendum and
General Administratrix of the Estate of Miguel Martinez,
Jr., against defendants who were at all times relevant
herein, Army doctors, in the Superior Court of New
Jersey, Law Division, Ocean County. ( Appendix, P.
A-22). The case was removed to the United States Dis-
trict Court for the District of New Jersey on petition of
the United States Attorney (Appendix, p. A-25). There-
after, the United States Attorney moved to dismiss plain-
tiff's complaint on the ground that defendants were im-
mune from actions such as the one brought by plaintiff
(Appendix, pp. A-29, 33), which motion was granted by
the District Court (Appendix, p. A-46). Plaintiff there-
upon took an appeal to the United States Court of Appeals
for the Third Circuit (Appendix, p. A-47). The matter
was first argued before Chief Judge Seitz and Judges
Aldisert and Gibbons on June 3, 1975, and reargued
before the entire Court en banc on May 14, 1976 (Ap-
pendix, p. A-1). On June 25, 1976, the Court of Appeals,
in an opinion from which Chief Judge Seitz and Judge
Gibbons dissented, affirmed the judgment of the United
States District Court dismissing the within action (Ap-
pendix, p. A-!).
On or about January 20, 1974, plaintiff's decedent,
Miguel Martinez, a retired U.S. Army Sergeant and a
civilian employee at the Army installation at Fort Dix,
New Jersey, entered Walson Army Hospital at Fort Dix
and became a patient of defendants, Army doctors prac-
ticing medicine there. On January 21, 1974, defendants
performed a gall bladder operation on plaintiff's decedent
in a negligent and improper manner, thereby causing
plaintiff's decedent to contract an infection which defen-
dants improperly diagnosed and treated. Subsequently,
on January 23, 1974, plaintiff's decedent expired at Wal-
son Army Hospital.
REASONS FOR GRANTING THE WRIT
|
The decision of the Court of Appeals below holding
that Respondents, Army physicians, are immune from suit
for medical malpractice arising out of services rendered
by them to Petitioner's decedent, an Army retiree entitled
to such services, is in direct conflict with the Jecision of
the United States Court of Appeals for the District of
Columbia Circuit in the case of Henderson v. Bluemink,
511 F.2d 399 (D.C. Circuit 1974), a case whose facts
are virtually identical to the facts of the case sub judice.
In Henderson, the plaintiff, the dependent wife of a
member of the armed services, brought a suit against
Major George Bluemink, an Army doctor, for alleged
negligence in treating and diagnosing plaintiff's illness,
while she was an out-patient at Walter Reed Medical
Center. Defendant moved before the United States Dis-
trict Court for Summary Judgment dismissing plaintiff's
Complaint, which Motion was granted. Thereafter, the
plaintiff appealed to the United States Court of Appeals
for the District of Columbia Circuit, which reversed the
Judgment of the District Court and remanded the case
for trial, holding that an Army physician was not immune
- from civil suit for malpractice allegedly committed upon
the dependent wife of a serviceman, who was treated by
him in an Army hospital as part of his official duties. In
arriving at this conclusion that Court reasoned as follows:
“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. Pather, the complaint (no less—-but cer-
tainly no more—than one sounding in malpractice )
charged that appellee, albeit a government officer, was
4 Reasons for Granting the Writ
negligent in the practice of medicine. Since appellee
is neither a judge nor an executive officer, and is
therefore clothed at “est with a limited form of im-
munity, 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 dis-
positive 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. The chief policy under-
lying the creation of insmunity for lower govern-
mental officials is mainly that which stems from the
desire to discourage ‘the fearless, vigorous, and ef-
fective administration of policies of government.’
However, that policy is not applicable to the exer-
cise of normal medical discretion since doctors making
such judgments would ‘face the same liability outside
of government service as they would face if the com-
plaint 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 mecical 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 serv-
ice or the vigorous exercise of public responsibility
once having entered that service.” 511 F.2d, 399, 502-
403. (Citations and footnotes omitted. )
The Court in Henderson recognized that the acts
complained of in that case involved the use of judgment
and discretion, but found that discretion to be medical
rather than governmental and therefore not clothed with
the mantle of immunity. The court also noted that the
Reasons for Granting the Writ 5
compulsory exercise of medical discretion by a govern-
ment physician (medical judgments required because of
government service which might be avoided outside of
government service) might alter the standards of care
applicable to the exercise of medical discretion or give
rise to a limited immunity, but found factually that such
was not the case with respect to defendant's actions
therein.
The Court of Appeals in the instant matter, in reach-
ing the conclusion that an Army physician is immune
under such circumstances, failed to distinguish or even
to mention, except in a fvotnote, the opinion of the Dis-
trict of Columbia Circuit in Henderson v. Bluemink,
supra., although that case was urged upon the Court in
support of Petitioner's position. Instead, the Court below
held that for purposes of the immunity doctrine, a claim
by a retired military person is to be equated with the
claim of an individual in active service against military
personnel. As Chief Judge Seitz noted in his dissenting
opinion, this holding represents ap attempt to avoid the
applicability of Barr v. Matteo, 360 U.S. 564 (1959) in
which this Court held that for absolute immunity to ap-
ply, the government official must (1) be a policy-making
executive official and (2) be acting within the outer
perimeters of his line of duty. The majority relied in-
stead upon Feres v. United States, 340 U.S. 135 (1950),
which is not applicable to claims other than those brought
by an active duty serviceman and clearly does not apply
to the claim of a retired serviceman. Compare, United
States v. Brown, 348 U.S. 110 (1954).
It is respectfully submitted that the reasoning adopted
by the Circuit Court of Appeals for the District of Colum-
bia in Henderson v. Bluemink, supra, is equally applicable
to the facts herein and that the Court of Appeals for the
~
6 Reasons for Granting the Writ
Third Circuit erred in reaching the opposite conclusion
in the instant case. Inasmuch as the decision of the Court
below is in direct conflict with the earlier decision of the
Circuit Court of Appeals for the District of Columbia on
virtually identical facts presenting the same legal issue,
to wit: whether an Army physician is immune from suit
for malpractice by a non-active duty patient entitled to
his services, it is respectfully urged that this case war-
rants the exercise of this Court’s discretion in granting
this writ.
Il
The decision of the Third Circuit Court of Appeals
in the within matter conflicts, not only with the decision
of the Court of Appeals for the District of Columbia in
Henderson v. Bluemink, supra., but in addition, conflicts
with earlier decisions of this Court, particularly this
Court’s landmark decision in Barr v. Matteo, 360 U.S.
564 (1959). As noted above, Barr limits the application
of absolute immunity to government officers who are
policy-making executive officials acting within the outer
perimeter of their line of duty. Clearly, Respondent's,
who are active duty Army physicians, do not fall within
this class of government officials.
In attempting to avoid the applicability of Barr v.
Matteo, supra, the Court below mistakenly applied an-
other decision of this Court, Feres v. United States, 340
U.S. 135 (1950), where in was stated:
“We know of no American law.which ever has per-
mitted a soldier to recover for negligence against
either his superior officers or the government he is
serving.” 340 U.S. 135, 141.
This holding in Feres was later limited to active duty
service personnel by the holding in United States v.
~I
Reasons for Granting the Writ
Brown, 348 U.S. 110, (1954) a suit identical to that in
Feres, except that the plaintitf was a discharged service-
man, which distinguished Feres on that very basis.
It is respectfully submitted, based on the foregoing,
that the Third Circuit Court of Appeals in its opinion in
the case sub judice, clearly misapplied this Court's hold-
ing in Feres v. United States, supra and erred in not
applying the doctrine enunciated by this Court in Barr v.
Matteo, supra and in not finding, based on that doctrine,
that Respondents were not immune from Petitioner's suit.
It is therefore respectfully urged that the writ sought in
the within matter be granted by this Court.
Ill
As the majority opinion below notes, the principals
of absolute and qualified immunity for government offi-
cials have been developed largely by this Court, rather
than by Congress. Periodically, this Court has under-
taken to define the limits of this immunity and designate
the officials to whom it applies and the extent of its appli-
cation. Barr v. Matteo, supra, Doe v. McMillian, 412 U.S.
306 (1973). At the present time, in light of increasing
general concern over the issue of medical malpractice
claims and malpractice insurance costs, it is respectfully
submitted that the issue in the case suh judice, whether
and to what extent Army physicians are immune from
suit for malpractice, presents an important question of
Federal law which has not been, but should be settled by
this Court.
CONCLUSION
For the foregoing reasons, it is respectfully urged
that the within Petition for a Writ of Certiorari to the
United States Court of Appeals for the Third Circuit be
» granted by this Court.
Respectfully submitted,
/s/ Robert F. Novins
ROBERT F. NOVINS
NOVINS, FARLEY,
GROSSMAN, LISTON &
YORK ~
Counsel for Petitioner
202 Main Street, CN 2032
Toms River, New Jersey 08753
Al
APPENDIX
UNITED STATES COURT OF APPEALS
For THE THIRD CIRCUIT
No. 74-2296
RAPHAELA MARTINEZ, Administratrix ad Prosequen-
dum and General Administratrix of the Estate of Miguel
Martinez, Jr., deceased,
~
Appellant,
v.
LAWRENCE SCHROSK, M.D. and
ANKIA CHANDRASEKARAN, M.D.,
Appellees.
APPEAL FROM THE UNITED STATES DistTricr Court FOR THE
District oF NEw JERSEY
(Civil Action No. 74-1282)
“
Argued June 3, 1975
Before: Serrz, Chief Judge, Avpisert and Grspons,
Circuit Judges.
Reargued May 14, 1976
Before: Serrz, Chief Judge, VAN Dusen, ALDISERT,
ApaMs, GiBBOoNS, ROsENN, HuNTrR, Weis and Gartn,
Circuit Judges.
A2
United States Court of Appeals
Edward F. Liston, Jr., Esquire
Novins, Novins, Farley & Grossman
202 Main Street
Toms River, New Jersey
Attorney for Appellant
Jonathan L. Goldstein, Esquire
United States Attorney
Ronald L. Reisner, Esquire
Assistant United States Attorney
970 Broad Street
Newark, New Jersey
Attorneys for Appellees
A3
OPINION OF THE COURT OF APPEALS
Filed June 25, 1976
Aupisert, Circuit Judge.
Bailey v. DeQuevedo, 375 F.2d 72, 74 (3d Cir.), cert.
denied, 389 U.S. 923 (1967), held that “an enlisted man
in the armed services of the United States cannot maintain
an action against an Army medical surgeon for negligence
in an operation performed at an Army hospital in line of
duty.” The question presented here is whether that bar
can be extended to an action brought by the representa-
tive of a retired enlisted man against two Army surgeons.
The district court held that the surgeons possessed im-
munity and dismissed the complaint with prejudice. We
affirm.
Plaintiff's decedent, a retired Army sergeant and a
civilian employee at Fort Dix, New Jersey, died on Janu-
ary 23, 1975, shortly after a gall bladder operation per-
formed on him by defendants, two Army surgeons. Plain-
tiff initiated survival (N.J.S.A. 2A: 15-3) and wrongful
death (N.J.S.A. 2A: 31-1) claims in the Superior Court of
New Jersey contending that defendants’ negligence caused
the death. The action was properly removed to the dis-
trict court pursuant to 28 U.S.C. § 1442(a) where it was
dismissed with prejudice. The district court relied on the
immunity doctrine enunciated in the defamation case of
Barr v. Matteo, 360 U.S. 564 (1959) and later applied in
this circuit in Keiser v. Hartman, 339 F.2d 597 (3d Cir.
1964), cert. denied, 381 U.S. 934 (1965). Plaintiff ap-
pealed the order of dismissal.
Our starting point is the Bailey v. DeQuevedo ration-
ale,’ anchored not on Barr v. Matteo but on Feres v.
1. We cheefully concede that the Bailey rationale has not captured
universal acceptance. See, e.g., Henderson v. Bluemink, 511 F.2d 399 (D.C.
1974).
A4 Opinion of the Court
United States, 340 U.S. 135, 141 (1950): “We know of
no American law which ever has permitted a soldier to
recover for negligence, against either his superior officers
or the Government he is serving.” In denying relief to
the plaintiff in Bailey our justification was two-fold:
“the plaintiff was on ‘active duty’ and ‘subject to military
discipline, and the defendant's alleged negligent action
was ‘committed in the course of military duty.” 375
F.2d at 74 (emphasis added). Here we must decide if a
different rule should apply because: (a) the survival
claim is asserted on behalf of a retired serviceman, en-
titled to military medical care but no longer on active
duty at the time of the alleged negligent conduct or (b)
the wrongful death claim, in legal theory, belorgs to the
decedent's family, not to the decedent.
We concede that the distinction in the status of plain-
tiff and her decedent deprives these defendants of the
benefit of the rationale that “one soldier may [not] sue
another for negligent acts performed in the line of duty.”
Bailey v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965), cert.
denied, 383 U.S. 948 (1966), quoted in Bailey v. DeQue-
vedo, supra, 375 F.2d at 74. But we do not believe that
the applicability of immunity doctrines ought to turn on
such distinctions. We perceive more meaningful policy
considerations at work—considerations looking not to the
particular status of the plaintiff, but to the governmental
interests inhering in the duties of the defendants. The
Supreme Court instructs:
[T]he Court has not fashioned a fixed, invariable rule
of immunity but has advised a discerning inquiry
into whether the contributions of immunity to effec-
tive government in particular contexts outweigh the
perhaps recurring harm to individual citizens .. . .
Opinion of the Court A5
Doe v. McMillan, 412 U.S. 306, 320 (1973) (emphasis
added). In particular, two considerations are to be
counterbalanced:
[OJn the one hand, the protection of the individual
citizen against pecuniary damage caused by oppres-
sive or malicious action on the part of officials of the
Federal Government; and on the other, the protection
of the public interest by shielding responsible govern-
mental 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.
Barr v. Matteo, supra, 360 U.S. at 565; see Doe v. McMil-
lan, supra, 412 U.S. at 319.
Applying these broad directives from the Supreme
Court, we perceive significant public policy considera-
tions at work here which tip the balance in favor of
immunity.
First, as in Bailey, the defendants here were Army
physicians on active duty, performing “in the course of
military duty.” They could not pick and choose their pa-
tients. The objectives of certainty and uniformity in the
law would be ill-served if immunity were wrapped around
a surgeon for a nine o clock operation in an Army hospital
on an active-duty soldier who survived the operation, but
were removed for a ten o'clock operation in the same op-
erating room on a retired soldier who did not survive the
operation. The law should not require the military sur-
geon, in exercising his informed medical judgment, to con-
cern himself with his patient's military status or with the
technicalities of tort law. The same standard of profes-
sional care obviously ought to apply in both situations,
and the same legal rules should obtain.
A6 Opinion of the Court
Second, if viewed from the perspective of avoiding
“perhaps recurring harm to individual citizens,” the plain-
tiffs position in this case is equally untenable. Immuniz-
ing these defendants from personal liability does not de-
prive the plaintiff of a remedy: she may seek relief under
the Federal Tort Claims Act, 28 U.S.C. § 1346(b), see
United States v. Brown, 348 U.S. 110 (1954). Indeed, we
were advised at oral argument that a timely Federal Tort
Claims Act claim has been filed to protect the plaintiff. In
Bailey we held the defendants were immune from per-
sonal liability even though the plaintiff was precluded
from suing under the Federal Tort Claims Act. See Feres
v. United States, supra. There was no alternative remedy
in Bailey; there is in the case at bar. Insofar as this factor
should affect the outcome, our decision today would seem
to follow a fortiori from Bailey.
Third, concerning the contribution of an immunity rule
to “effective government,” we note that this claim is
not one where liability would be borne ultimately by the
United States or by an insurance carrier. Absent a Fed-
eral Tort Claims Act suit naming the United States as a
defendant, there is no provision for joinder of or indemnity
from the United States; and malpractice insurance is not
involved here. This case raises the spectre of personal
liability on the part of military doctors.
We willingly concede that concern for the savings ac-
counts of military doctors should not be controlling in and
of itself. But viewed with regard for its possible effect on
the delivery of health care to the armed services, the pros-
pect of personal liability takes on added significance.
Surely, there is a strong governmental interest in assuring
that the military services be able to recruit and retain
2. See the Report of the House Committee on Armed Services, note 5,
infra, concerning the reasons why a plaintiff might choose not to sue the
United States, and the general absence of malpractice insurance in this kind
of litigation.
Opinion of the Court A7
competent medical personnel. Given today’s litigious
medical malpractice environment,’ we believe that such
persons would be substantially discouraged from pursuing
military medical careers by the prospect of personal liabil-
ity in malpractice actions. Civilian physicians are hav-
ing difficulty meeting the spiralling cost of malpractice
insurance premiums." Some have felt compelled to leave
previously lucrative practices. It could hardly be sug-
gested that the purchase of costly insurance would pro-
vide a solution for the more modestly compensated mili-
tary doctor. Therefore, if there is a governmental interest
in the delivery of health care to the armed services—and
we strongly believe there is—a result imposing personal
liability on military medical personnel would be antitheti-
cal to that interest.
Finally, to argue, as does the plaintiff, that the pro-
tection of military medical officers is a matter for Con-
gress,” and not for the courts, is to ignore the reality that
3. See, e.g., New York Times, June 15, 1975, at 44, col. 3 (remarks of
Dr. Malcolm C. Todd, president of the American Medical Association
(“A.M.A.”), during the 124th Annual Meeting of the A.M.A.): “Mal-
practice is the number one problem that faces the American medical
profession.”
4. “The A.M.A. undertook the financial risk of forming a re-insurance
company under pressures created by soaring malpractice premium rates and by
the commercial industry's virtual abandonment of medical malpractice cover-
age.” New York Times, June 20, 1975, at 39, col. 5. In the 10-year period
my to the A.M.A.'s action, rates jumped 1,600%, so that the annual premium
or $1 million insurance coverage came to nearly $15,000 for high risk fields
such as orthopedic seaman this figure obtained before carriers proposed
doubling rates in 1975. New York Times, June 1, 1975, at 47, re 5.
5. The House of Representatives has passed H.R. 3954, 94th Cong. Ist
Sess., to provide an exclusive remedy via the Federal Tort Claims Act for
claims against active duty military physicians, dentists, nurses, pharmacists
and paramedical personnel. Such protection had already been extended to
medical personnel of the Veterans Administrations, 38 U.S.C. §4116, and of
the Public Health Service, 42 U.S.C. §233.
The House Committee on Armed Services Report accompanying H.R.
3954 explained the problem:
. . . If the defendant loses the case he must pay the judgment. Of
course, if the individual is sued jointly with the United States and a
judgment is entered against both jointly, the United States will satisfy
the judgment. However, if the defendant is sued individually, neither the
A8 Opinion of the Court
it has been the Supreme Court, not Congress, that has
developed the principles of absolute immunity,’ as well as
the principles of qualified immunity.’’ Moreover, such an
argument ignores the fact that it was this court, not Con-
gress, that afforded protection to military physicians from
claims by persons on active military duty. Bailey v. De-
Quevedo, supra.
We see the issues reduced to this: being limited to the
salary of a military officer without the financial emolu-
ments of private civilian practice, and being under mili-
tary obligation to accept patients sent to him, should a
United States nor the individual can bring in the United States as a
party defendant in order to invoke the provisions of the Federal Tort
Claims Act.
One may ask why a plaintiff would not join the United States or sue
the United States alone in order to claim the benefit of the world’s largest
self-insurer. There are several possible reasons. For example, a
trial is not available in such a suit against the United States and the
plaintiff may care to obtain jury consideration of the circumstances
rise to the alleged malpractice. . . . Also, there are cases where the
two-year statute of limitations on claims against the United States may
have run out while the local statute for suit in a state court may not have
run. In addition, there have been instances where for emotional or vindic-
tive reasons plaintiffs have insisted on suing a physician personally for
alleged negligence. '
The present propensity of individuals to purste more actively alleged
medical malpractice and the attendant alarming increase in the cost of
malpractice insurance —- have caused physicians, dentists, nurses,
paramedics and other individuals assigned to medically-related duties in
the Department of Defense to be increasingly concerned over personal
exposure to civil liability for alleged malpractice and their increasir’
inability to meet the cost of malpractice insurance.
The Department of Justice reported to the Committee that it is de-
fending 20 such lawsuits in which 37 Defense Department defendants are
being sued personally for damages in United States District Courts. In
all but three cases there is no insurance coverage, and of those three the
limitations on liability appear to fall well below the damages claimed.
The total damages claimed in - 20 cases is in the amount of
$13,755,450.00. The Department of Justice, in reporting its experience
regarding the national eiiieation of medical saligsecine claims and
litigation, has advised the Committee that at the present time it is in-
volved in approximately 494 suits characterized as arising out of al
medical malpractice of officers or employees of the Federal establishment.
H.R. Rep. No. 94-333, 94th Cong., Ist Sess. 2-3 (1975).
6. Imbler v. Pachtman, — U.S. —, 44 U.S.L.W. 4250 (March 2, 1976);
Doe v. McMillan, 412 U.S. 306 (1973); Pierson v. Ray, 386 U.S. 547 (1967);
Barr v. Matteo, 360 U.S. 564 (1959). ;
7. Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S.
232 (1974); Pierson v. Ray, supra, note 6.
Opinion of the Court Ag
military physician be confronted with potential personal
liability for a claim of medical malpractice? Would such
liability be consonant with sound public policy? We
think not. We think that the contribution of immunity to
effective government, relating here to the armed services’
ability to recruit and retain competent medical personnel,
outweighs the perhaps recurring harm to individual citi-
zens who, in fact, have recourse under the Federal Tort
Claims Act.
The judgment of the district court will be affirmed.
Apams, 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 sepa-
rately to state my views.
A.
The facts presented in Bailey v. DeQuevedo' may ap-
pear, 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 util-
ize. Martinez, on the other hand, was retired, and had the
option of going to an Army doctor or te 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,’ a Supreme Court decision that also involved tort
suits by persons who had been on active military duty at
1. 375 F.2d 72 (3d Cir.), cert denied, 389 U.S. 923 (1967).
2. 30 US. 135 (1950).
Al0O Opinion of the Court
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 “relationships of military
personnel to the Government,” 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.”
When, several years later, the Supreme Court was faced
in United States v. Brown’ 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 under-
lying 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 ex-
treme 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”
—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™
between injuries that arose in the course of active military
duty and those that did not.
The Bailey Court recognized that Feres was not pre-
cisely on point, since the defendants in Bailey were the
allegedly negligent physicians rather than the govern-
ment, but it nonetheless adopted the Feres reasoning.”
348 U.S. 110 (1954).
Id. at 112.
Id. at 113.
. 375 F.2d at 74.
Sr owrrkw
Opinion of the Court All
Significantly, the Court then proceeded to point out the
difference between Feres and Brown, in order to demon-
strate that the former rather than the latter was the cor-
rect analogue to Bailey.” 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 ap-
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. Conse-
quently, 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 gov-
ernment officials with discretionary duties “enjoyed an ab-
solute immunity from damage suits” "’ if they were acting
“within the outside perimeter of [their] line of duty. . . .”"
It is not 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 commen-
tator has observed that “[t]he common law doctrines of
personal immunity for official acts were revitalized” '* by
9. Id.
10. Note, Damages for Federal Employment Discrimination, 85 Yale L..
518, 527 (1976). ,
11. Barr v. Matteo, 360 U.S. 564, 575 (1959) (Harlan, J., announcing t}
ow of the Court). Barr was the leading case at the time Bailey was
-... McCormack, Federalism and Section 1983, 60 Va. L. Rev. 1, 10
(1974).
Al2 Opinion of the Court
the decision of the Supreme Court in Pierson v. Ray,"
which came down eight days after Bailey. Further evolu-
tion has occurred since then."*
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,"* is dependent upon “the scope of dis-
cretion and responsibilities of the office and all the circum-
stances 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. . . .”
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 pres-
ent context, however, even though the Supreme Court has
not addressed such a situation.
13. 386 U.S. 547 (1967).
14. See, e.g., Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v.
Rhodes, 416 U.S. 232 (1974). Cf. Imbler v. Pachtman, 44 U.S.L.W. 4250
(U.S. Mar. 2, 1976).
i5. 416 U.S. 232, 247 (1974) (emphasis added). In the words of the
Fifth Circuit, “[ajbsolute immunity . . . is a juridicial relic, expressly re-
jected 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 (1972).
16. Doe v. McMillien, 412 U.S. 306, 320 (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, 511 F.2d 399 (DC Cir. 1974), the District
of Columbia Circuit recognized a distinction between governmental discretion
and medical discretion, and declined to immunize the defendant physcian at
all.
Opinion of the Court Al3
Thus, in Doe v. McMillan," 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 “[g]overnment
officials of suitable rank for the reason that ‘officials of
government should be free to exercise their duties unem-
barrassed by the fear of damage suits in respect of acts
done in the course of those duties—suits which would con-
sume time and energies which would otherwise be devoted
to governmental service and the threat of which might
appreciably inhibit the fearless, vigorous, and effective ad-
ministration of policies of government.” '* Although the
last three words of the quotation do not specifically apply
to army physicians, the two conflicting considerations un-
derlying the doctrine of immunity are as applicable to
military doctors as to policymaking officials. They are:
On the one hand, the protection of the individual citi-
zen against pecuniary damage caused by oppressive or
malicious action 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.”
The defendant doctors in this case are skilled profes-
sionals employed by the government. They must exercise,
in the course of their daily employment, a careful discre-
tion,—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
17. 412 U.S. 306 (1973).
18. Id. at 319 (quoting Barr v. Matteo, 360 U.S. 564, 571 [1959]).
19. Id. (quoting Barr v. Matteo, supra at 565).
Al4 Opinion of the Court
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 mili-
tary hospital in a major metropolis, deciding whether to
perform difficult surgery, would not be.
Nor can the absence of congressional legislation repect-
ing 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 *’ and the Pub-
lic Health Service,*' but has not yet approved the legisla-
tion 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 mili-
tary doctors through judicial decisions is sufficient, so that
legislation is unnecessary?” It may be that the pro-
ponents 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
20. 38 U.S.C. §4116 (Supp. IV, 1974).
21. 42 U.S.C. § 233 (1970).
22. 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.
Opinion of the Court Al5
a nondiscretionary act—such as failure to remove a sponge
the physician would nonetheless be protected. The legis-
lative pattern cannot be determinative, for “[t|he official
immunity doctrine . . . ‘has in large part been of judicial
making...” In the absence of guidance from the
Congress, the courts face no statutory or constitutional
obstruction to the interpretation or fashioning of the doc-
trine.”*
Since qualified immunity would thus appear to be ap-
plicable, it is necessary to follow the all-the-circumstances
approach mandated by the Supreme Court in such cases.
To do so, we must review the particular facts of this case.
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 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.”
Were one or more of the relevant factors missing--
for example, if no alternative remedy existed—the balance
23. Doe v. McMillian, supra at 318 (quoting Barr v. Matteo, supra at
569 ).
24. Id. at 323.
25. 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.
Al6 Opinion of the Court
could well be different. But an approach that regards
Bailey as the controlling precedent and thus supplies ab-
solute immunity in all military situations, or which pro-
vides for no immunity in any situation involving army
physcians, 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.
Seitz, Chief Judge, dissenting.
It was long ago said that hard cases make bad law. I
think that aphorism is particularly applicable to the result
reached by the majority here. Reduced to its essence the
majority holds that for purposes of the immunity doc-
trine a claim by a retired serviceman against military per-
sonnel is to be equated with the claim of an individual in
active service against military personnel. In this way, the
majority attempts to avoid the applicability of Barr v.
Matteo, 360 U.S. 564 (1959). Instead they rely on Feres
v. United States, 340 U.S. 135 (1950) which, as the con-
curring opinion notes, is not applicable to a claim of a re-
tired serviceman arising after his retirement. Compare
United States v. Brown, 348 U.S. 110 (1954).
No amount of legal legerdemain can obscure the fact
that this is a state law claim by a civilian against military
personnel. As the Supreme Court held in Howard v.
Lyons, 360 U.S. 593 (1959), the immunity claim in such
cases is a matter of federal law to be formulated by the
courts in the absence of Congressional action. In addition,
Howard teaches that the controlling federal principles gov-
erning the existence and scope of such immunity, in the
absence of Congressional action, are to be found in Barr v.
Matteo, above.
In granting summary judgment in favor of defendants,
the district court relied on the doctrine of official immunity
Opinion of the Court AIT
enunciated in Barr v. Matteo, above, and adopted by this
Court in Keiser v. Hartman, 339 F.2d 597 (3d Cir. 1964).
The majority, as noted, rejects this approach, and, in my
view, commits error.
Barr was a libel action against the Acting Director of
the Office of Rent Stabilization. There the Supreme Court
extended the doctrine of absolute immunity, previously
provided as a shield to a cabinet-level official in Spalding
v. Vilas, 161 U.S. 483 (1896), to one whose position, al-
though somewhat less exalted, involved the operation of a
federal agency. The test which emerges from Barr is
two-fold. For absolute immunity to apply the government
officer must (1) be a “policy-making executive official”
and (2) be acting “within the outer perimeter of [his]
line of duty.”
I am convinced that the defendant-doctors are not
officials entitled to absolute immunity under Barr or sub-
sequent cases.' Defendants are clearly not policy making
executive officials like the agency head in Barr, and thus
are not shielded by an absolute immunity. I therefore
conclude that the district court erred in holding that de-
fendants were entitled to absolute immunity.
Lesser officials are entitled only to a qualified im-
munity, the scope of which is related to the nature and
extent of their governmental duties, see Doe v. McMillan,
412 U.S. 306, 319-20 (1972).?. There is no rigid formula as
to what duties or functions of a public servant carry with
1. It may be noted that medical personnel in the Veterans’ Administration
are immune from malpractice suits under 38 U.S.C. §4116 (Supp. 1973).
Similar legislation now pending in Congress would apply to military medical
personnel. However, up until this date Congress has not seen fit to adopt
this legislation.
2. I need not consider the Supreme Court's recent pronouncements con-
cerning the extent of immunity available to certain public officials in actions
under 42 U.S.C. § 1983 (1970), since they were based on considerations not
applicable in a case which does not fall under that statute. See Wood v.
Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).
Al8 Opinion of the Court
them an entitlement to the protection of a qualified im-
munity and which do not. Each case must be scrutinized
to determine the nature of a public servant's acts. Some
of the considerations which may weigh in favor of a finding
that certain actions give rise to an official immunity are
whether the particular public servant is acting to formu-
late public policy rather than merely to administer policy
decisions, or whether the actions undertaken are broad in
scope and prospective in effect, pertain to a large number
of persons or to the public in general, and involve the
exercise of official discretion. Such actions are considered
governmental in nature and, as such, give rise to a quali-
fied immunity. By way of contrast, if the actions in ques-
tion involve carefully circumscribed or routine application
of a policy to particular individuals or situations, they are
considered ministerial and do not give rise to governmental
immunity.
In this case the acts complained of clearly were not
related to the formulation of policy nor to broad decision
making with an impact on a wide number of people. Al-
though defendants’ acts were discretionary in nature, it
is clear that they were imbued, in the words of the court
in Henderson v. Bluemink, 511 F.2d 399 (D.C. Cir. 1974),
with medical and not governmental discretion. I therefore
believe that defendants’ acts were not governmental in
nature and that defendants are not shielded from any lia-
bility which may arise out of the performance of those
acts under the doctrine of qualified immunity.
The most casual examination of the policy factors
relied on in the majority and concurring opinions shows
that they are not relevant under controlling principles.
Rather than focusing upon the scope of the defendants’
authority and the nature of their discretionary duties, both
the majority and the concurrence seem to rely instead on
=”
Opinion of the Court Ald
irrelevant factors reflecting the “equities” of the case.
Certainly, the fact that the defendants were required to
perform this operation, that they lacked malpractice in-
surance, and that plaintiff may have an alternate remedy
does not further the inquiry into whether defendants are
deserving of the qualified immunity reserved to lower pub-
lic officials. Although these considerations may ultimately
sway Congress to pass the bill presently before it, it is not
for this court to “force” a result which Congress, though
afforded the opportunity, has not yet seen fit to enact into
law.
I would reverse the judgment of the district court and
remand for further proceedings.
Gissons, Circuit Judge, dissenting
I joined in Chief Judge Seitz’s dissenting opinion, but I
believe that one consideration requires clarification and
emphasis.
In this case we have a state law which provides a rule
of decision in the absence of a federal immunity which
would supplant it.'_ There is no doubt, of course, that fed-
eral law could, subject to due process limitations which
need not be explored at this point, immunize all federal
employees from state law causes of action for all negligent
acts committed in the scope of their federal employment.’
Heretofore neither Congress nor this Circuit’ has rec-
1. N.J.S.A. 2A:15-3 (survival claim); N.J.S.A. 2A:31-1 (wrongful death
claim).
2. See, e.g., Howard v. Lyons, 360 U.S. 593 (1959).
3. L agree with Judge Adams’ analysis that Bailey v. DeQuevedo, 375 F.2d
72 (3d Cir.), cert. denied, 389 U.S. 923 (1967), is certainly not dispositive of
the specific immunity issue presented in this case. Instead, like Chi Judge
Seitz, I believe that the claimed immunity should not be recognized for the
reasons advanced by Judge Bastian in Henderson v. Bluemink, 511 F.2d 399
(D.C. Cir. 1974).
A20 Opinion oj the Court
ognized the absolute immunity claimed by defendants in
this case. But Congress, which has previously immunized
the medical personnel of the Veterans Administration *
and the Public Health Service’ from the very kind of suit
that is the subject of this case, now has under active con-
sideration a bill to extend the same immunity to active-
duty military medical personnel.’ Thus, the issue con-
fronting this court is which law-pronouncing branch of the
federal government—the federal courts or Congress—should
make the immunity determination.
In Doe v. McMillan, 412 U.S. 306 (1972), the Supreme
Court, confronted with a virtually identical choice, declined,
in the absence of Congressional action, to supplant a cause
of action under local law by absolutely immunizing the Pub-
lic Printer and the Superintendent of Documents. In-
deed, Doe v. McMillan is an a fortiori case since the
Speech or Debate Clause of the United States Constitution *
arguably afforded a constitutional basis for extending im-
munity to agents of the Congress. In this case there is no
such constitutional provision. Moreover, in Crilly v.
Southeastern Pa. Transp. Authority, 529 F.2d 1355 (3d
Cir. 1976), we were asked to supplant local law when the
reasons for applying a uniform law of labor-management
relations appeared far more persuasive than those given
for the extension of absolute immunity to cover these de-
fendants. But in Crilly we deferred, and properly so I
submit, to Congress which, just as in this case, was simul-
taneously considering proposed legislation covering the
same subject matter.”
4. 38 U.S.C. $4116 (Supp. 1976).
5. 42 U.S.C. § 233.
6. See H.R. 3954, 94th Cong., Ist Sess. (1975), which has already been
approved by the House of Representatives.
7. Art. I, §6, el. 1.
8. 529 F.2d at 1357, 1363.
Opinion of the Court A21
Instead of deferring to future Congressional judg-
ment on the creation of absolute immunity in this kind of
suit, the majority has chosen to weigh the competing policy
considerations and to make an essentially legislative judg-
ment. It has done so; however, without the benefit of the
interplay of the various competing interests which, by de-
sign, appropriately occurs within the legislative arena.
Indeed, I strongly suspect that not all of the relevant fac-
tors have even been identified, since the record before us
does not even disclose, for example, the extent to which
army surgeons are paid proficiency or incentive allowances
over and above the military pay authorized for their rank.’
What principled reasons, I ask, make this case such a
strong one for judicial legislation when compared to others
in which we have refused to create federal common law?
Unless those reasons are at least identified, the plaintiff
will be justified in suspecting that they are entirely sub-
jective.
9. See 37 U.S.C. $313 (Supp. 1976).
A TRUE COPY:
Teste:
Clerk of the United States Court
of Appeals for the Third Circuit.
(A.O.—U.S. Courts, International Printing Co.,
Phila., Pa.)
A22
LETTER OPINION OF THE
UNITED STATES DISTRICT COURT
October 23, 1974
Novins, Novins, Farley & Grossman,
202 Main Street,
Toms River, N.J. 08753
Attn: Richard A. Grossman, Esq.
Jonathan L. Goldstein, Esq.,
United States Attorney,
Post Office Building,
Trenton, N.J. 08605
Attn: Ronald L. Reisner, Esq., A.U.S.A.
Re: Martinez v. Schrock et al.,
Civil] 74-1282
Gentlemen:
This is an action brought against two physicians on
an allegation of their malpractice while both were officers
in the Medical Corps of the United States Army. They
have moved for a dismissal contending that in their ca-
pacities as Army doctors, they are immune from personal
liability.
The matter was commenced in the Superior Court of
New Jersey and removed to this court pursuant to 28
U.S.C. Section 1441(a), 28 U.S.C. Section 1442(a) and
28 U.S.C. Section 2679. Plaintiff has not moved to re-
mand to the state forum This Court therefore need only
be concerned with the motion to dismiss.
It has long been the law in almost every Circuit that a
federal official is immune from any personal liability for
acts done within the outer perimeter of his official author-
ity and in pursuance of his official duties. Barr v. Mateo,
360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593
(1959). This immunity is absolute and extends to all
Letter Opinion A23
levels of government. Barr, supra, Koningsberg v. Hunter,
308 F. Supp. 1361 (W.D.Mo. 1970), and this principle
was firmly stated in this Circuit some time ago. Keiser
v. Hartman, 339 F.2d 597 (3d Cir. 1964).
Only one case deviates from the great wealth of author-
ity granting immunity to all levels of government. See,
Henderson v .Bluemink, (D.C. Cir. No. 73,1816) decided
July 26, 1974. In view of these authorities to the con-
trary and a careful analysis of the courts’ reasoning in
Henderson, supra, this Court is led to the view that Hen-
derson, supra, is not persuasive.
Certainly Army doctors in the performance of their
duties, mi nan they be voluntary enlistees or those
dragooned into service by way of the Draft, clearly should
be immune from personal liability. The statement in
Henderson, supra, that “...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 dis-
cretion outside of government,” is remarkably inaccurate
in view of the almost universal insurance coverage of doc-
tors. It is difficult to see how medical officers could prop-
erly perform their duties, sometimes in the most desperate
of conditions and circumstances, under the constant threat
of actions in malpractice. Clearly, the immunity should
inure to their benefit.
The plaintiff, although entitled to bring an action
against the United States under the Federal Tort Claims
Act, either originally or by way of an amendment to this
suit, has not seen fit to do so and the motion to dismiss
must be and is granted.
The Statute of Limitations, 28 U.S.C. Section 2401,
has not yet run and the plaintiff may still pursue her proper
A24 Letter Opinion
remedy but only after filing of the proper claim with the
appropriate federal agency, which is a jurisdictional pre-
requisite, 28 U.S.C. Section 2675, to relief.
Submit an order.
Very truly yours,
/s/ Clarkson S. Fisher
CLARKSON S. FISHER
US.DJ.
CSF /efr
A25
COMPLAINT AND DEMAND FOR JURY
Plaintiff, residing at 608 Texas Drive, Toms River,
Township of Dover, County of Ocean, State of New Jer-
sey, complaining of the defendants says:
FIRST COUNT
1. On or about July 9, 1974, Letters of Administration
ad Prosequendum were granted by the Surrogate of Ocean
County to plaintiff for the purpose of prosecuting a claim
of the widow, children and next of kin and dependents
of Miguel Martinez, Jr., deceased, against defendants for _
the death of Miguel Martinez, Jr.. as hereinafter men-
tioned.
2. This action has been commenced within two years
after the death of the said Miguel Martinez, Jr.
3. At all times relevant hereto, defendants were licensed
physicians practicing medicine in the State of New Jersey.
4. On or about January 20, 1974, the said Miguel Mar-
tinez, Jr. became a patient of defendants, who agreed to
treat him for a physical disorder which in their opinion
required surgical intervention. From that time onward,
defendants owed to said patient the duty to exercise that
of care and skill generally practiced by physicians
doing operative procedures in the general medical com-
munity.
5. On or about January 21, 1974, said defendants per-
formed an operation upon said patient and undertook to
administer aftercare. Said operation and aftercare were
performed by defendants in a negligent manner, violating
the professional standard of care owing to said patient.
Said professional negligence consisted, among other mat-
ters, of causing said patient to contract a violent infection
and improperly and insufficiently diagnosing and treating
said infection thereafter.
A26 Complaint
6. As a proximate resu!t of said professional negligence
as aforesaid, the said Miguel Martinez, Jr. died on or
about January 23, 1974, to the pecuniary damage of his
dependents.
WHEREFORE, plaintiff demands judgment against de-
fendants for damages and costs of this action.
SECOND COUNT
1.-6. Plaintiff, Raphaela Martinez, General Administra-
trix of the Estate of Miguel Martinez, Jr., deceased, repeats
each and every aliegation of the First Count and makes
them a part hereof.
7.0n July 9, 1974, Letters of Administration were is-
sued to said plaintiff by the Surrogate of Ocean County,
appointing her General Administratrix of the Estate of
Miguel Martinez, Jr., deceased.
8. As a result of the professional negligence of defend-
ants as aforesaid, the said Miguel Martinez, Jr., deceased,
was caused to live in great pain for two days until the
day upon which he died. During that time he suffered
greatly and endured much pain.
WHEREFORE, plaintiff demands judgment against de-
fendants for damages and costs of this action.
DEMAND FOR JURY
Plaintiff hereby demands a jury of twelve (12) jurors
as to all issues.
NOVINS, NOVINS,
FARLEY & GROSSMAN
Attorneys for Plaintiff
/s/ Richard A. Grossman
RICHARD A. GROSS\IAN
For the Firm
A27
PETITION FOR REMOVAL
The petition of Jonathan L. Goldstein, United States
Attorney for the District of New Jersey, attorney for de-
fendant, Ankia Chandrasekaran, respectfully shows:
1. Ankia Chandrasekaran is a defendant in an action
now pending in the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-36373-73 entitled
Rapbe«ia Martinez, Administratrix ad Prosequendum and
Ceneral Administratrix of the Estate of Miguel Martinez,
jr., deceased, Plaintiff v. Lawrence Schrock, M.D. and
Ankia Chandrasekaran, M.D., defendants.
2. A copy of the summons and complaint were served
upon the defendant, Ankia Chandrasekaran on August 2,
1974.
3. Ankia Chandrasekaran, M.D. is an officer of the
United States or an agency thereof or a person acting for
such an officer or a member of the Armed Forces of the
United States within the meaning of 28 U.S.C. Section
1442. Any actions complained of and dowe by Ankia
Chandrasekaran were done under the color of his office
or status and within the scope of his employment with the
United States as a member of the Armed Forces thereof.
4. This action, especially a federal tort claims case, is
subject to removal pursuant to the provisions of 28 U.S.C.
Section 1441(a) as an action over which the district courts
of the United States have original jurisdiction. This action
is also subject to remeval pursuant to the provisions of 28
U.S.C. Section 1442a and 28 U.S.C. 2679.
A28
NOTICE OF FILING VERIFIED
PETITION FOR REMOVAL
To: Novins, Novins, Farley and Grossman, Esquires
(without copy or bond )
Attorneys for Plaintiff
202 Main Street
Toms River, New Jersey 08753
Clerk
Superior Court of New Jersey
Law Division
State House Annex
Trenton, New Jersey
(2 copies without copy of bond)
You are hereby notified that on the 20th day of August,
1974, a verified petition for removal in the above-entitled
cause, a copy of which is enclosed, was filed in the United
States Distict Court for the District of New Jersey.
JONATHAN L. GOLDSTEIN
United States Attorney
Attorney for Defendant,
Ankia Chandrasekaran
By: /s/ Ronald L. Reisner
RONALD L. REISNER
Assistant United States Attorney
Original filed August 20, 1974.
Angelo W. Locascio
ANGELO W. LOCASCIO
Clerk
ee a
en
Notice of Filing Verified Petition for Removal A29
WHEREFORE, petitioner requests that the action de-
scribed in Paragraph 1 now pending against the defendant,
Ankia Chandrasekaran in the Superior Court of New
Jersey be removed therefrom to this Court.
JONATHAN L. GOLDSTEIN
United States Attorney
By: /s/ Ronald L. Reisner
RONALD L. REISNER
Assistant United States Attorney
A30 Notice of Filing Verified Petition for Removal
STATE OF NEW JERSEY:
SS
COUNTY OF MERCER
Ronald L. Reisner, being duly sworn according to law,
upon his oath deposes and says:
1. Iam an Assistant United States Attorney and am en-
trusted with the handling of this matter.
2. The factual allegations of the petition are true to the
best of my knowledge, information, and belief.
3. Upon the information now available to me, with
respect to the incident referred to in the complaint, Ankia
Chandrasekaran was acting within the scope of his em-
ployment and under the color of his office or status within
the Armed Forces of the United States at the time of the
incident, as indicated in the affidavit of Colonel Leon M.
Dixon which is attached hereot and made a part hereof.
/s/ Ronald L. Reisner
RONALD L. REISNER
Assistant United States Attorney
NOTARIZED
Pin eneetecttieascs etsekadensh\ ben stants Vleet
Notice of Filing Verified Petition for Removal A31
8 August 1974
AFFIDAVIT
SCOPE OF EMPLOYMENT STATEMENT
I, Colonel Leon M. Dixon, being of full age, hereby
swear and depose that:
From 10 August 1972 to the present time, DOCTOR
ANKIA CHANDRASEKARAN, 534 48 5430, Lieutenant
Colonel, United States Army, Medical Corps, Walson Army
Hospital, Fort Dix, New Jersey, has been on the medical
staff of Walson Army Hospital and has not practiced med-
icine as a private individual. On 21 January 1974, 22
January 1974, and 23 January 1974, Lieutenant Colonel
CHANDRASEKARAN was acting within the scope of his
employment as a military doctor during the treatment of
Miguel Martinez, Jr., at Walson Army Hospital, Fort Dix,
New Jersey.
/s/ Leon M. Dixon
LEON M. DIXON
Colonel, MC
Commanding
Walson Army Hospital
Fort Dix, New Jersey 08640
NOTARIZED
A32
NOTICE OF MOTION TO
DISMISS COMPLAINT
To: Novins, Novins, Farley and Grossman, Esquires
Attorneys for Plaintiff
202 Main Street
Toms River, New Jersey 08753
PLEASE TAKE NOTICE that on the 7th day of Oc-
tober, 1974 at 10:00 o'clock in the forenoon or as soon
thereafter as counsel may be heard, the undersigned, at-
torneys for defendants will move before the Honorable
Clarkson S. Fisher of the United States District Court for
the District of New Jersey, United States Court House
and Post Office Building, 402 East State Street, Trenton,
New Jersey for an order extending time to answer the
complaint and dismissing the complaint against defendants
for failure to state a claim upon which relief can be granted.
In support of this motion, the undersigned will rely
upon the affidavits of Colonel Leon M. Dixon, one of which
was filed with the Petition for Removal, and the affidavit
of Ronald L. Reisner, together with a Memorandum of
Law submitted herewith.
JONATHAN L. GOLDSTEIN
United States Attorney
By: /s/ Ronald L. Reisner
RONALD L. REISNER
Assistant United States Attorney
Original Filed September 1, 1974
eT ee ee
Notice of Motion A33
8 August 1974
AFFIDAVIT
SCOPE OF EMPLOYMENT STATEMENT
I, Colonel Leon M. Dixon, being of full age, hereby
swear and depose that:
From 10 August 1972 to the present time, DOCTOR
ANKIA CHANDRASEKARAN, 534 48 5430, Lieutenant
Colonel, United States Army, Medical Corps, Walson Army
Hospital, Fort Dix, New Jersey, has been on the medical
staff of Walson Army Hospital and has not practiced med-
icine as a private individual. On 21 January 1974, 22
January 1974, and 23 January 1974, Lieutenant Colonel
CHANDRASEKARAN was acting within the scope of his
employment as a military doctor during the treatmeit of
Miguel Martinez, Jr., at Walson Army Hospital, Fort Dix,
New Jersey.
/s/ Leon M. Dixon
LEON M .DIXON
Colonel, MC
Commanding
Walson Army Hospital
Fort Dix, New Jersey 08640
NOTARIZED
A34 Notice of Motion
AFFIDAVIT
I, COLONEL LEON M. DIXON, being of full age,
hereby swear and depose that:
On 20 January through 23 January 1974, DR. LAW-
RENCE SCHROCK was acting within the scope of his
employment as a military doctor during the treatment of
MIGUEL MARTINEZ, JR. at Walson Army Hospital, Fort
Dix, New Jersey, and not as a private physician.
/s/ Leon M. Dixon
LEON M. DIXON
Colonel, MC
Commanding
Walson Army Hospital
Fort Dix, New Jersey 08640
STATE OF NEW JERSEY
:SS
COUNTY OF BURLINGTON :
NOTARIZED
Notice of Motion A35
STATE OF NEW JERSEY:
SS
COUNTY OF MERCER
Ronald L. Reisner, of full age, being duly sworn ac-
cording to law, upon his oath, deposes and says:
1. I am an Assistant United States Attorney and am en-
trusted with the handling of the above-referenced matter
for the defendants.
2. On August 20, 1974 I mailed a stipulation extending
time to answer to October 7, 1974 to counsel for the plain-
tiff.
3. On September 9, 1974 counsel for plaintiff stated in
a telephone conversation that he had no substantive objec-
tion to extending the time for defendants to answer, but
that because of his contentions with respect to the removal
of his action as expressed in his August 26, 1974 letter
to the Court, he would only execute a stipulation in the
Superior Court of New Jersey.
4. This affidavit is made in support of defendants’ mo-
tion for an order extending time to answer the complaint
to and including October 7, 1974.
/s/ Ronald L. Reisner
RONALD L. REISNER
NOTARIZED
A36
BRIEF IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS
STATEMENT OF FACTS
Plaintiff brings this action against Doctor Ankia Chan-
drasekaran and Doctor Lawrence Schrock. At the time
of the incident giving rise to this suit, both defendants
were officers in the United States Army assigned to Wal-
son Army Hospital Fort Dix, New Jersey. Dr. Ankia
Chandrasekaran held the rank of Lieutenant Colonel,
Medical Corps. Plaintiffs allege, inter alia, that Miguel
Martinez, Jr. died as a result of the defendants’ alleged
failure to perform a gall bladder operation and to render
post-operative care properly. Apparently, although it is
not alleged, Miguel Martinez, Jr., a civilian employee at
Fort Dix, was a retired Army sergeant and was therefore
entitled to medical treatment at Walson Army Hospital,
Fort Dix, in January, 1974.
This brief is submitted in support of the defendants’
motion to dismiss, which, under F.R. Civ. P. 12(b)(6),
can be treated as a motion for summary judgment under
F.R. Civ. P. 56.
I. DEFENDANTS ARE IMMUNE FROM SUIT
The alleged acts of negligence which form the basis of
the Complaint, were performed by the defendants acting
within the scope of their authority as employees and agents
of the United States of America.
It is well settled that no action can be brought or tried
against a federal official for acts performed within the
outer perimeter of his official authority and in pursuance
of his official duties. Barr v. Matteo, 360 U.S. 564 (1959);
Howard v. Lyons, 360 U.S. 593 (1959). As noted in Barr,
supra at 572-73, this immunity from suit is absolute and
Brief in Support of Defendant's A37
Motion to Dismiss
extends to all levels of government. See, Konigsberg v.
Hunter, 308 F. Supp. 1361, 1363 (W.D. MO. 1970).
The privilege of official immunity was recognized by the
Supreme Court long before Barr and Howard. See, e.g.,
Kendall v. Stokes, 44 U.S. (3 How.) 87 (1845); Bradley
v. Fisher, 80 U.S. (13 Wall.) 335 (1872); Spalding v. Vilas,
161 U.S. 483 (1896). It has been recognized in every
Circuit Court of Appeals in the country, and, in partcular,
the Third Circuit upheld this privilege in Keiser v. Hart-
man, 339 F.2d 597 (3rd Cir. 1964), cert. denied, 381 U.S.
934 (1965); see also Josephson v. Joslin, 38 F.R.D. 344
(D.N.J. 1965).
This privilege not only protects a federal official from
judgment, but also frees him from the burden of trial. In
Babylon Milk and Cream Co. v. Rosenbush, 233 F. Supp.
735, 736 (E.D.N.Y. 1964) the Court stated:
“... the principal is one that halts at the threshold
any judicial inquiry into the existence of private in-
jury consequent upon the officer's act . . . where it
appears that the alleged private wrong grew directly
out of the defendant's functioning in his discretionary
office.”
The principle of official immunity requires: (1) that the
official be acting within the scope of his employment, and
(2) that his duties be discretionary in nature. Bivens v.
Six Unknown Named Federal Agents, 456 F.2d 1339, 1343
(2nd Cir. 1972).
It would appear clear from the record that Lieutenant
Colonel Chandrasekaran’s treatment of Miguel Martinez,
Jr. was performed within the outer perimeter of his duties
as an officer and medical doctor in the United States Army.
(Affidavit of August 8, 1974 of Colonel Leon M. Dixon
attached to petition of removal). Dr. Schrock also acted
A38 Brief in Support of Defendant's
Motion to Dismiss
within the scope of his duties. (Affidavit of August 21,
1974 of Colonel Leon M. Davis). Alleged tortious or
unauthorized acts will not remove a federal official's con-
duct from the scope of his authority. See, Gamage v. Peal,
217 F. Supp. 384 (N.D. Cal. 1962); Babylon Milk and
Cream Co. v. Rosenbush, supra.
The duties which defendants performed also meet the
other criteria entitling them to immunity. In Estate of
Burks v. Ross, 438 F.2d 230 (6th Cir. 1971), the adminis-
trative director of a government hospital and a treating
psychiatrist in the hospital were held to be vested with
discretionary duties and, therefore, to be immune. As to
the treating psychiatrist the Court noted, “While Dr.
Ging had less discretion, nevertheless in her diagnosis and
treatment of patients and in her supervisory powers over
other employees she was vested with discretion.” 438
F.2d at 235.
In Gamage v. Peal, 217 F. Supp. 384 (N.D. Cal 1962),
plaintiff brought a tort suit against, inter alia, a military
doctor. Once it was determined that the doctor was acting
wihin the scope of his employment, the Court held him
to be immune from suit:
“That medical officers in the Armed Forces . . . should
be covered by the immunity rule would appear quite
apparent if the rule, as presently applied by the United
States Circuit Courts and the United States Supreme
Court is to have consistent application. The im-
munity from liability for official acts is no longer
limited to cabinet members, department heads or
judges . . . but now extends to lesser officials in sim-
ilar capacities as the defendants sued herein.” 217
F. Supp. at 390.
See also, Taylor v. Glotfelty, 201 F.2d 51 (6th Cir. 1952);
Bates v. Carlow, 430 F.2d 1331 (10th Cir. 1970); Blitz v.
ee amt A
Brief in Support of Defendant's A39
Motion to Dismiss
Boog, 328 F.2d 596, 600 (2nd Cir. 964), cert. denied, 379
U.S. 855 (1964).
Thus, it would appear to be without question that the
defendants are immune from suit and the complaint should
be dismissed.
Finally, it should be noted that should plaintiff desire to
sue the United States, the two year statute of limitations,
28 U.S.C. Section 2401, has not yet expired.
CONCLUSION
For all of he foregoing reasons, the complaint should
be dismissed against defendants.
Respectfully submitted,
JONATHAN L. GOLDSTEIN
United States Attorney
By: /s/ Ronald L. Reisner
RONALD L. REISNER
Assistant United States Attorney
A40
MEMORANDUM OF LAW
OF PLAINTIFF
STATEMENT OF FACTS
This is a medical malpractice action instituted for the
wrongful death of Miguel Martinez, Jr. Defendants in
this suit are doctors who were employed by the United
States Army and assigned to Walson Army Hospital. The
acts of negligence concern an improperly performed gall
bladder operation and aftercare.
ARGUMENT OF LAW
Defendants have made a motion to dismiss the complaint
upon the ground that defendants are immune from civil
suit for any act of professional negligence committed while
they were employees of the United States Army. It must
be pointed out, prior to any discussion of the law, that the
acts complained of constitute deviations from accepted
medical standards and do not in any way concern acts of
a discretionary nature having to do with policy decisions.
Defendants cite a number of cases in their memorandum
which they contend indicate that they enjoy complete im-
munity from civil suit. It is submitted that none of these
cases stand for the proposition that these defendants would
enjoy total immunity. The leading case discussed is Barr
v. Matteo, 360 U.S. 564 (1959). That was a suit for libel
by employes of a federal agency against the head of that
agency. In a 5 to 4 opinion, it was held that a privilege
exists against suit for acts arising out of duties performed
by government officials in the course of their duties. The
majority stated that the question was a close one, but that
freedom to exercise discretion in discharging the functions
of government outweighed the right of an individual to
sue for a tort which might grow out of the operation of a
Memorandum of Law of Plaintiff A41
governmental office. It is clear that this case stands for the
proposition that immunity will follow those discretionary
activities necessary to keep the government and its agencies
functioning. The case of Howard v. Lyons, 360 U.S. 593
(1959) is a companion case to Barr.
There then follows a series of other cases where im-
munity was found to exist.
Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631 (1896).
Action by attorney for employees of the Post Office Depart-
ment against the Postmaster. The Court said at page 637,
“In exercising the functions of his office, the head of an
executive department keeping within the limits of his au-
thority should not be under apprehension that the motives
that control his official conduct may at any time become
the subject of inquiry in a civil suit for damages.”
Kendall v. Stokes, 44 U.S. 87 (1845). Suit by contract-
ing parties with Department of the Post Office against Post-
master General. Held, theory of case was actually breach
of contract and immunity aplied to defendant.
Bradley v. Fisher, 80 U.S. 335 (1872). Suit by attorney
against judge of the District Court.
Keiser v. Hartman, 339 F.2d 597 (3rd Cir. 1964). Libel
action by employees of Department of Agriculture against
fellow employees.
Josephson v. Joslin, 38 F.R.D. 334 (D.N.J. 1965). Ac-
tion against I.R.S. agents for harassment in examining
plaintiff's books and records.
In the case of Bivens v. Six Unknown Named Federal
Agents, 456 F.2d 1339 (2nd Cir. 1972), Judge Medina
found no immunity. The suits were against agents of
various federal agencies for acts committed while pursuing
suspects. At p. 1343 the Court held, “But we reject the
A42 Memorandum of Law of Plaintiff
claim of immunity because we do not agree that the agents
were alleged to be engaged in the performance of the
sort of ‘discretionary’ acts that require the protection of
immunity.”
There then follows a series of cases dealing with medical
officers. In Estate of Burkes v. Ross, 438 F.2d 230 (6th
Cir. 1971) the decedent was a mental patient in a V.A.
hospital. He escaped and was killed by a train. The
theory of the case was that hospital policy did not keep him
properly confined. The Court permitted immunity to pro-
tect the director of the hospital and chief psychiatrist who
determined policy of confinement, but did not allow im-
munity against nurses and other staff personnel.
Likewise, in Blitz v. Boog, 328 F.2d 596 (2nd Cir. 1964)
a false imprisonment suit against a psychiatrist was dis-
missed because policy decision to hold patient for examina-
tion or release him required protection of immunity.
Again, Gamage v. Peal, 217 F. Supp. 384 (N.D. Cal. 1962)
was an action against a base psychiatrist and other doctors
for wrongfully diagnosing and treating a condition which
prevented plaintiff from flying. Note that plaintiff did not
allege misdiagnosis and treatment, nor did he allege a
violation of any Air Force Regulation. At p. 389 the Court
said:
“To allow the fear or risk of personal liability for their
official acts to inhibit military doctors from performing
their duty and going forward and pursuing findings
that might result in a determination of a flyer in today’s
Air Force would be contrary to the national interest.
Such action would result in endangering the lives of
the men and the public; it would hamstring the effi-
cient operation of our Air Force; and would, there-
fore, have the effect of allowing the interest of the
wronged individual to override the needs of the gov-
oe a
Pee ee en
Memorandum of Law of Plaintiff A43
ernment and the public, which is contrary to the
whole purpose of the immunity rule.”
Taylor v. Glotfeity, 201 F.2d 51 (6th Cir. 1952) in-
volved a libel action against a psychiatrist at a federal
prison facility. Immunity was held to apply. However,
this opinion may be subject to some question, since the
court cited, as authority for its decision the case of Cooper
v. O'Connor, 99 F.2d 135. That was a malicious prosecu-
tion suit against a federal prosecutor which clearly came
within the ambit of Barr.
It is clear that none of the cases listed above concerned
allegations of medical malpractice. Only Bates v. Carlow,
430 F.2d 1331 (10th Cir. 1970) involved malpractice.
However, this was a per curiam opinion which did not dis-
cuss any of the facts of the alleged claim.
An analysis of the authorities suggests the concept with
which we are dealing. Immunity from suit is a judg2-made
concept, rather than statutory or constitutional. it finds
its genesis in the Barr decision, which extents immunity
to such government officials who are required within the
course of their duties to make discretionary policy decisions
generally affecting the conduct of their duties. Clearly,
the “discretion” involved must be of policy level, since
every routine act performed by human beings involves
some discretion—to stop or go, turn left or right, etc.
Viewed in this light, the present action should not be
dismissed. Defendants are not being sued for an abuse
of discretion. They are being sued for a deviation of
accepted medical standards. If it were a matter of discre-
tion, the suit could not be maintained. Moreover, any
decisions made concerning the care of the decedent were
not general in nature, affecting the hospital or ward as a
whole, but were personal to this one case. As an analogy,
one might consider the respective roles of attorney and
A44 Memorandum of Law of Plaintiff
trial judge. The judge should be free from suit for de-
cisions and statements made while performing his official
duties. However, the attorney is subject to suit for mal-
practice if he violates a standard of care in representing
his client before that judge.
For the reasons expressed herein, it is requested respect-
fully that defendants’ motion be denied.
Respectfully submitted,
NOVINS, NOVINS,
FARLEY & GROSSMAN
Attorneys for Plaintiff
/s/ Richard A. Grosman
RICHARD A. GROSSMAN
For the Firm
DDS OAD Con le RD tne
Ss
oe een, eer ere ere
A45
ORDER GRANTING MOTION
OF DEFENDANT
This matter having been opened to the Court by Jona-
than L. Goldstein, United States Attorney for the Dis-
trict of New Jersey, counsel for the individual defendants,
Ronald L. Reisner .:ssistant United States Attorney ap-
pearing in the presence of Novins, Novins, Farley and
Grossman, Esquires, counsel for plaintiff, Richard A.
Grossman, Esquire appearing, and the Court having con-
sidered the affidavits filed and the briefs and oral argu-
ments of counsel, and a letter opinion having been filed
with the Clerk of the Court, for good cause shown;
It is on this 29th day of October, 1974 ORDERED that
the time within which the individual defendants may
answer or otherwise proceed herein be and the same
hereby is extended nunc pro tune to and including Octo-
ber 7, 1974; and
It is FURTHER ORDERED that the complaint against
the individual defendants Lawrence Schrock, M.D. and
Ankia Chandrasekaran, M.D. be and the same hereby is
DISMISSED with prejudice and without costs.
/s/ Clarkson S. Fisher
CLARKSON S. FISHER
UNITED STATES
DISTRICT JUDGE
ORIGINAL FILED
A46
NOTICE OF APPEAL OF PLAINTIFF
Notice is hereby given that Raphaela Martinez, etc.,
the above-named plaintiff, hereby appeals to the United
States Court of Appeals for the Third Circuit from the
Order of Dismissal in favor of the defendants and against
the plaintiff entered in this action on the 29th day of
October, 1974.
NOVINS, NOVINS, FARLEY &
GROSSMAN
/s/ Richard A. Grossman
BY RICHARD A. GROSSMAN
For the Firm
DATED: November 7, 1974
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.