Appeal from the United States District Court for the Northern District of Illinos, Eastern Division. No. 79 C 3056-George N. Leighton, Judge.
Cummings, Chief Judge, Cudahy, Circuit Judge, and Timbers, Senior Circuit Judge.*fn*
Plaintiff Walter Lojuk alleges that he was subjected to electro-shock therapy (electro-convulsive therapy or ECT) without his consent and in spite of his family's objections while a voluntary patient at the Veterans Administration Medical Center in North Chicago, Illinois. Plaintiff alleges that he served in the United States Army on two occasions between 1968-1970 and 1971-1975. After his second discharge he suffered from depression and was placed in mental hospitals on three occasions. In March 1979 his family had him admitted to the Veterans Administration (VA) Hospital, the North Chicago Medical Center. At the time of his admission, records reflect that he was schizophrenic, mute, maintained no eye contact, was severely depressed and out of touch with reality. Medical reports reflect that plaintiff was "catatonic alternatively with dangerous violence -- needs ECT" (First Amended Complaint P15).
Plaintiff alleges that the treating psychiatrist, defendant Dr. Bruce Johnson, or his agent, telephoned plaintiff's family to seek permission to proceed with ECT; such permission was denied. Plaintiff further alleges that a six-page memorandum issued in March 1978 and signed by defendant Marjorie Quandt, Director of the North Chicago Medical Center, required consent of next-of-kin before ECT could be administered. Plaintiff alleges that a consent form with his signature on it appears in his file, but he denies having signed it, and alleges that according to Dr. Johnson, he was incapable of giving consent (First Amended Complaint P17). In addition, plaintiff alleges that there exists an electro-shock research and experimentation program on human subjects at the VA hospital.
Plaintiff alleges common-law causes of action for gross negligence, malpractice and assault, as well as constitutional violations of his Fifth and Eighth Amendment rights. He seeks actual and punitive damages against defendants Johnson and Quandt.*fn1 After satisfying the jurisdictional prerequisites to suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., plaintiff filed a first amended complaint adding the United States as defendant.
There are three district court orders on appeal in this case. On December 19, 1980, the district court granted the individual defendants' motion to dismiss, but gave plaintiff thirty days to amend the complaint to state a claim. Plaintiff's second amended complaint merely added two paragraphs alleging that defendants Quandt and Johnson knew or reasonably should have known their actions violated plaintiff's constitutional rights (App. III). On January 22, 1981, the district court denied leave to file the second amended complaint because it did not cure the defects of the first amended complaint. In its Memorandum Opinion, the court held that plaintiff's malpractice claims could not be brought against VA medical personnel such as defendants Quandt and Johnson because 38 U.S.C. § 4116(a) immunizes them from suit. Plaintiff's sole remedy for his malpractice claim was against the United States in accordance with the FTCA. In addition, the court held that plaintiff's allegation that ECT was administered without his consent did not state a claim of constitutional dimension, under either the Fifth or Eighth Amendment. After reaffirming its earlier conditional dismissal of the individual defendants, the court allowed the first amended complaint to stand against the United States.
Plaintiff then filed another second amended complaint against the United States under the FTCA for negligence, assault and malpractice. On December 28, 1981, the district court dismissed that complaint, holding that plaintiff's claim that he received ECT without consent constituted a battery under Illinois law, which is specifically excluded from the waiver of sovereign immunity under the FTCA, 28 U.S.C. § 2680(h).
We reverse the district court's December 19, 1980, and January 22, 1981, orders dismissing the complaint against defendant Johnson but affirm the dismissal of defendant Quandt; we also affirm the December 28, 1981, order dismissing the complaint against the United States.
Selected VA personnel are immune from suit for malpractice or negligence under 38 U.S.C. § 4116(a) which provides:
§ 4116. Defense of certain malpractice and negligence suits
(1) against the United States provided by sections 1346(b) and 2672 of title 28, or
(2) through proceedings for compensation or other benefits from the United States as provided by any other law, where the availability of such benefits precludes a remedy under section 1346(b) or 2672 of title 28,
for damages for personal injury, including death, allegedly arising from malpractice or negligence of a physician, dentist, podiatrist, optometrist, nurse, physician assistant, expanded-function dental auxiliaries, pharmacist, or paramedical (for example, medical and dental technicians, nursing assistants, and therapists) or other supporting personnel in furnishing medical care or treatment while in the exercise of such person's duties in or for the Department of Medicine and Surgery shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, podiatrist, optometrist, nurse, physician assistant, expanded-function dental auxiliaries, pharmacist, or paramedical or other supporting personnel (or such person's estate) whose act or omission gave rise to such claim. (Emphasis added).
The statute further provides that the Attorney General shall defend any civil suit brought against any person referred to in the foregoing subsection (a), 38 U.S.C. § 4116(b). After certifying that the defendant was acting in the scope of employment at the time of the incident out of which the suit arose, the Attorney General is required to remove the suit to federal court and it shall be deemed a tort action against the United States, id. § 4116(c).
Section 4116(a) directs a plaintiff to the FTCA, under which a claim may be brought against the United States for malpractice or negligence in accordance with state law, 28 U.S.C. § 2672. The FTCA, however, is but a limited waiver of the United States' sovereign immunity; exceptions to the waiver appear in 28 U.S.C. § 2680, and include "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights," id. § 2680(h). In its first Memorandum Opinion the district court characterized Lojuk's complaint as alleging medical malpractice falling within the ambit of Section 4116(a). The court therefore dismissed the individual defendants and instructed plaintiff that his sole remedy would be against the United States. But when plaintiff filed suit against the United States, the district judge in his second Memorandum Opinion characterized plaintiff's complaint as alleging a battery under Illinois law, thus falling within the ambit of Section 2680(h) and mandating dismissal against the United States.
Although the district court did not discuss it, the facial inconsistency of its characterizations can only be reconciled if we accept defendants' contention that the word "malpractice" in Section 4116(a) includes intentional torts such as battery. According to the defendants, Congress intended to deprive plaintiff of a judicial remedy for battery both from individual VA medical personnel and from the United States. In our view Congress intended to reconcile Section 4116(a) and Section 2680(h) in a more reasonable manner. After carefully considering the language and legislative history of Section 4116 and ...