The opinion of the court was delivered by: JACKSON
Thomas Penfield Jackson, U.S. District Judge.
On three occasions in late January, 1983, plaintiff Joanne Bembenista was sexually molested by a medical technician assigned to care for her while she was under treatment for diabetic complications at Walter Reed Army Medical Center ("WRAMC"), in Washington, D.C., a military hospital owned and operated by defendant United States.
Mrs. Bembenista, the wife of an Army captain, was semi-comatose and disoriented at the time (a consequence, she now alleges, of her mis-medication by other attending medical personnel). The Bembenistas timely presented WRAMC with administrative claims for compensation by each of them in January, 1985, which were finally rejected by the Army's Office of the Judge Advocate General the following November. They filed this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq., in May of 1986. The United States has moved to dismiss, or for summary judgment of dismissal, for failures of subject matter jurisdiction and to state claims upon which relief can be granted. For the reasons set forth below the motion will be granted.
The FTCA, of course, operates as a waiver of the United States' sovereign immunity for certain tort actions against it, excepting, however, inter alia, "any claim arising out of assault [or] battery." 28 U.S.C. § 2680(h). The Bembenistas' "first amended complaint" sets forth their respective claims in voluble detail, and a profusion of "counts," variously characterizing their causes of action as being for medical malpractice, breach of implied contract (to provide proper medical care), invasion of privacy, negligent retention and supervision (of a medical technician known to be mentally disturbed), negligent breach of a "special duty of protective care," and loss of consortium, all of which, they say, are actionable wrongs cognizable under the law of the District of Columbia.
The United States asserts that the gravamen of each and every "count" is, nevertheless, the medical technician's criminal assault and battery upon Mrs. Bembenista, as to which it retains its sovereign immunity under § 2680(h).
While the Bembenistas' administrative claims were pending the Supreme Court decided the case of United States v. Shearer, 473 U.S. 52, 87 L. Ed. 2d 38, 105 S. Ct. 3039 (1985), denying recovery under the FTCA for the wrongful death of an Army private murdered by a fellow serviceman while off duty and away from his military post. The Shearer plaintiff, decedent's personal representative, contended the Army had been negligent in assigning the slayer, who had once before been convicted of homicide, to her decedent's duty station without exercising due care to "control" him or to warn others that he was "at large." With one justice not voting, the Court unanimously held the Feres doctrine
to bar the action, but in obiter dicta in which four justices joined, also said:
Id. at 55. (Emphasis in original).
Since Shearer several circuit courts of appeal have found the dictum a clear indication that a "semantical recasting of events" to charge an assault- or battery-inflicted injury in terms of negligence to make it cognizable under the FTCA nevertheless encounters the bar of § 2680(h). In Johnson by Johnson v. United States, 788 F.2d 845 (2d Cir. 1986), the court held a district court to be without jurisdiction to entertain an FTCA action charging the government with negligence in failing to supervise a letter carrier who committed a sexual assault on an infant, observing that the four justices who did not join in the Shearer dictum also did not dissent from it. Id. at 850. In Thigpen v. United States, 800 F.2d 393 (4th Cir. 1986), the court affirmed dismissal of an FTCA case on behalf of two minor girls who were sexually molested by a Navy corpsman while recuperating from surgery in a naval hospital, finding the Shearer analysis "persuasive," whether or not binding. Id. at 395. And in Garcia v. United States, 776 F.2d 116 (5th Cir. 1985), affirming dismissal of an FTCA action alleging negligent supervision of a military recruiter who purportedly had sex with a prospective recruit, the court asserted that it could not ignore the "strong signal" represented by Shearer. Id. at 118.
The Bembenistas contend, however, that § 2680(h)'s exclusion of assaults (and certain other intentional torts) from the FTCA's otherwise general waiver of sovereign immunity for negligence is itself subject to an exception when a so-called "assault" occurs in a medical context. Among the several statutes Congress has enacted to relieve government medical personnel of personal liability for their professional errors
is found one which is applicable to the U.S. Armed Forces generally, namely, the Medical Malpractice Immunity Act, 10 U.S.C. § 1089, subparagraph (e) of which provides that, "for purposes of this section," § 2680(h) of the FTCA "shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions. . . ." According to the Bembenistas, the plain language of § 2680(h), the meaning of which was so apparent to the plurality in Shearer and the several lower courts to have followed it, is just as plainly modified by § 1089(e) of Title 10. Congress has declared, they say, that even physical contacts between a government health care provider and a patient which the former intends, and the latter finds, to be harmful and offensive, are nevertheless actionable under the FTCA notwithstanding § 2680(h).
The only case which appears to have addressed the relationship between 28 U.S.C. § 2680(h) and 10 U.S.C. § 1089(e) is Doe v. United States, 769 F.2d 174 (4th Cir. 1985), in which the court held the government's assault immunity remained intact and barred a suit by a military dependent who alleged that she had been a victim of unspecified "deviant sexual practices" upon her by an Air Force social worker ostensibly "treating" her for "blackouts." She not having consented to his ministrations, the court said, they constituted § 2680(h) "assaults" upon her; alternatively, they had not occurred "within the scope of the [social worker's] duties or employment," but, were, rather, for his "personal gratification." Id. at 175.
Either rationale would, of course, operate to bar the Bembenistas' suit here.
It is manifest, however, from both the legislative history of 10 U.S.C. § 1089, and cases construing FTCA exceptions in analogous contexts, that the only purpose of the Medical Malpractice Immunity Act and similar statutes was to relieve government health practitioners of individual personal liability to their patients should they be harmed, by substituting the government as the sole party answerable, if anyone, for their unintended errors, including a failure to obtain a patient's informed consent - technically a "battery" at common law - in rendering treatment. Section 1089 was not intended to enlarge in any respect the limited waiver of the government's own sovereign immunity effected by the FTCA. See Malpractice Protection to Defense Medical Personnel : Hearings on S. 1395 and H.R. 3954 Before the Subcomm. on General Legislation of the Senate Comm. on Armed Forces, 94th Cong., 2d Sess. 68 (1976); S. Rep. No. 94-1264, 94th Cong., 2d Sess. 9 (1976), reprinted in U.S. Code & Cong. Admin. News at 4451. See also Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983) and Lojuk v. Johnson, 770 F.2d 619 (7th Cir. 1985); Baker v. Barber, 673 F.2d 147 (6th Cir. 1982); Pelphrey v. United States, 674 F.2d 243 (4th Cir. 1982); Hernandez v. Koch, 443 F. Supp. 347 (D.DC. 1978).
This Court concludes that it is without subject matter jurisdiction under the FTCA of the Bembenistas' claims, however ingeniously they have been pleaded as something else, for the "injury" represented by the sexual liberties taken with Mrs. Bembenista by WRAMC's medical technician. Those acts were indisputably the sort of "assault and battery" for which § 2680(h) saves the United States' sovereign immunity, and ...