Although the discretionary function exception is not usually at issue in ordinary
medical malpractice cases, it does prevent claims based on staffing decisions
and care driven by specific protocols that reflect policy choices on how to
allocate resources or other discretionary matters.
The government successfully avoided liability through assertion of the
discretionary function exception in Denny v U.S., 171 F.2d 365 (5th Cir. 1948).
There, the discretionary function exception to the FTCA barred recovery from
the federal government on a claim by an Army officer and his wife for damages
for the stillbirth of their child. The stillbirth was allegedly due to the Army's
negligence in failing to promptly dispatch an ambulance to the wife when she
was beginning her labor. The court emphasized that both a federal statute and
the applicable army regulation provided that the medical officers of the Army
shall "whenever practicable" attend the families of the officers and soldiers
free of charge, and that the phrase "whenever practicable" clearly stamped the
obligation of the government to provide medical services to army dependents
as discretionary in character. Therefore, any negligent breach of duty on the
part of the Army medical authorities which may have existed, in failing to
extend promptly the gratuitous medical services requested, could not have
resulted in any actionable damage.
Another example of the government's successful assertion of the discretionary
function exception to the FTCA is Blitz v. Boog, 328 F.2d 596 (2nd Cir. 1964).
Allegations that the plaintiff was forcibly restrained for psychiatric treatment
when she sought treatment in a veterans' hospital for relief of a "fever of
undetermined origin" were held to be within the discretionary function
exception. The complaint was dismissed on the government's motion, because
while there was no "litmus paper" test as to whether the exception was
applicable, the decision of the hospital officials to examine for psychiatric
rather than fever symptoms involved discretion and was protected by the
exception. The court noted that on a previous visit to the hospital the claimant
had complained of an emotional upset. Therefore, the fever may have been of
psychosomatic origin, and that such a possibility warranted investigation by
the hospital officials.
The government is not always successful in its assertion that the disputed
actions are protected by an exception to the FTCA, as evidenced by many
cases. For example, if the federal medical employee did not exercise "due
care", the discretionary function exception may not shield the government from
liability. An example is a claim on behalf of an enlisted man's newborn that
was injured when an army doctor negligently injected a concentrated solution,
instead of the proper diluted solution, into the baby. The court determined that
the activity would otherwise be protected under the discretionary function
exception, except that the doctor was not exercising "due care", as required by
§ 2680(a) of the FTCA. The decision to treat the child at all was an exercise of
discretion, but once the decision was made to treat, the doctor owed a duty of
due care. Grigalauskas v. U.S., 103 F. Supp. 543 (D.C. Mass. 1951).
To further illustrate: the discretionary function exception did not apply in an
action against the United States where the plaintiff alleged negligent
treatment by government doctors when they failed to diagnose and remove a
tumor in the plaintiff's hip before it became so malignant as to become
probably fatal. The court concluded that once discretion to give treatment has
been exercised, the government is liable if its agents negligently administer
the care. Hunter v. U.S., 236 F. Supp. 411 (D.C. Tenn. 1964). If the negligence
rises to conscious indifference to the patient's welfare, the plaintiff may also
have a claim under the Bivens doctrine, discussed in the section on
Constitutional Claims against the federal government.