United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 95-3913

 

In re: Paul W. Geiger, * 

 *

 Debtor. * 

* 

------------------------- *

* Paul

W. Geiger, *

*

 Appellant, *

* Appeal from the United States

 v. * District Court for the Eastern

 * District of Missouri.

Margaret Kawaauhau and *

Solomon Kawaauhau, *

*

 Appellees. *

 

 Submitted: January 14, 1997

 Filed: May 14, 1997 

 

Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN, FAGG, BOWMAN,

WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and

MURPHY, Circuit Judges.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

This case raises the question whether a judgment debt resulting from

a medical malpractice action is dischargeable in bankruptcy. The

Kawaauhaus maintain that it is not, because it is a “debt ... for willful

and malicious injury by the debtor,” which 11 U.S.C. § 523(a)(6) exempts

from discharge. The bankruptcy court
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agreed with the Kawaauhaus, see In re Geiger, 172 B.R. 916 (Bankr. E.D. Mo.

1994), and the district court affirmed that judgment in an unpublished

opinion. On further appeal, a unanimous panel of this court reversed,

relying on Cassidy v. Minihan, 794 F.2d 340 (8th Cir. 1986). The panel

observed that the worst that might even colorably be said of the debtor's

behavior was that it was reckless, and that since there was no evidence

that he intended to harm his patient, it was not possible to say that his

actions were either willful or malicious, much less both. See In re

Geiger, 93 F.3d 443 (8th Cir. 1996). 

We granted the Kawaauhaus' subsequent suggestion for rehearing en

banc, and we reverse the judgment of the district court.

I.

Mrs. Margaret Kawaauhau sought treatment from Dr. Paul Geiger after

she injured her foot. He admitted her to the hospital for treatment for

thrombophlebitis, ran tests that suggested the presence of an infection,

and concluded that continuing the oral tetracycline that he had already

prescribed would be an effective treatment for her condition. He

eventually prescribed oral penicillin in place of the tetracycline.

Dr. Geiger then departed on a business trip, leaving his patient in the

care of other physicians, who began to administer intramuscular penicillin

and decided to transfer her to an infectious disease specialist. When

Dr. Geiger returned from his trip, however, he discontinued all antibiotics

because he believed that the infection had run its course. A few days

later, Mrs. Kawaauhau's condition deteriorated and her leg had to be

amputated below the knee. When the Kawaauhaus succeeded in an action for

malpractice against Dr. Geiger, he petitioned for bankruptcy.
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In an effort to prove that the malpractice judgment was not a

dischargeable debt, the Kawaauhaus introduced into evidence before the

bankruptcy court certain portions of the transcript of the trial of the

malpractice action. The transcript revealed that Dr. Geiger had admitted

at trial that the proper treatment for the streptococcus infection with

which he was faced was intravenous penicillin, that he knew that at the

time, but that he had nevertheless administered the penicillin orally

partly because his patient had frequently complained about medical expenses

(he had been treating her for a number of years) and had specifically

expressed a desire to avoid costly medicines. In response to a direct

question about whether he acknowledged that intravenous penicillin was “the

proper standard of care in the circumstances,” Dr. Geiger answered that he

did. 

The Kawaauhaus, without objection from Dr. Geiger, also introduced

into evidence before the bankruptcy court the deposition of Dr. Peter

Halford, a physician hired to examine both Mrs. Kawaauhau's medical records

and Dr. Geiger's testimony in the original trial and to render expert

opinions based on them. In his deposition, Dr. Halford first offered his

opinion that Dr. Geiger's treatment of Mrs. Kawaauhau had been negligent

in at least four particulars: He had initially misdiagnosed her condition

as phlebitis, or inflammation of the veins in her leg, rather than as an

infection; he had initially given her the wrong antibiotic (tetracycline

instead of penicillin); he had started penicillin too late, and then had

administered it by mouth rather than intravenously; and he had stopped

administering all antibiotics for a time. But Dr. Halford agreed with

counsel that Dr. Geiger's most egregious error was that he had considered

the relative costs of administering oral and intravenous penicillin in

deciding which treatment to choose. It is mainly on the foundation of this

last exchange that the Kawaauhaus have erected their theory that
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Dr. Geiger acted willfully and maliciously, because, the argument runs, he

intentionally rendered substandard care to Mrs. Kawaauhau, an act, the

Kawaauhaus say, that necessarily led to her injury. “It is this

intentional substandard treatment of the plaintiff,” the Kawaauhaus said

before the bankruptcy court, “in conjunction with the other misfeasance,

that is the crux of our case.” 

Whether, in forming his opinion concerning the propriety of

Dr. Geiger's treatment, Dr. Halford believed that Mrs. Kawaauhau had

requested that Dr. Geiger cut costs, Dr. Halford did not say, and the

bankruptcy court made no finding on the matter. Dr. Halford observed only

that “cost certainly plays a role in what we choose if we have an

alternative that is more economically feasible, but cost should have no

role in directing our therapeutic efforts when you are dealing with life

and death.” Dr. Halford then reviewed the portion of Dr. Geiger's trial

testimony in which he admitted knowing, “in fact, that intravenous

penicillin was the appropriate standard of care for this type of problem

and yet he intentionally used something that was less effective for the

sake of cost.” Dr. Halford ended his deposition by agreeing with the

Kawaauhaus' lawyer that “Dr. Geiger intentionally administered substandard

care to Margaret Kawaauhau that necessarily resulted in advancing infection

in her leg, then loss of her leg, and permanent damage to her kidneys.”

The bankruptcy court, though it did not say so directly, evidently

credited everything that Dr. Halford said in his deposition, and concluded

that “Dr. Geiger's treatment of Mrs. Kawaauhau was so far below the

standard level of care that it can be categorized as willful and malicious

conduct for dischargeability purposes.” In re Geiger, 172 B.R. 916, 923

(Bankr. E.D. Mo. 1994). The bankruptcy court further opined that
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in the context Dr. Geiger's consideration of costs “offends even a person

lacking formal medical training.” Id. In affirming the judgment of the

bankruptcy court, the district court, relying on our opinion in In re Long,

774 F.2d 875 (8th Cir. 1985), indicated its belief that Dr. Geiger's

admission that “he knew he was providing Mrs. Kawaauhau with substandard

care when he prescribed oral penicillin” rendered his conduct willful, and

the fact that “his conduct was certain or substantially certain to cause

physical harm” rendered it malicious within the meaning of the relevant

provision of the bankruptcy code.

II.

We begin our consideration of this evidence by admitting to some

uneasiness about the procedure employed in the bankruptcy court. The

complaint before the bankruptcy court sought to have a judgment debt

declared nondischargeable because, in the words of the statute, it was a

“debt ... for willful and malicious injury.” See 11 U.S.C. § 523(a)(6).

The relevant judgment was entered, and thus the debt was necessarily

predicated on, a jury verdict that was in turn based on evidence presented

at a trial. The parties did not furnish us with a copy of the trial

transcript, and we are thus unable to know what testimony the jury heard

that might have convinced it that Dr. Geiger had committed medical

malpractice. We therefore find it hard to understand how we can decide

what conduct the verdict, and thus the “debt,” was “for” within the meaning

of the statute. We wonder about the propriety of going behind the

pleadings in the original malpractice action, which asked for damages for

Dr. Geiger's negligence, to decide what this “debt” was “for.” (Plaintiffs

prayed for punitive damages, but the issue was not submitted to the jury.)

Even if the trial transcript contained particularly shocking evidence of

gross negligence and recklessness, or even of intent to injure, we would

have no way of
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knowing what testimony the jury credited, what their verdict was supported

by, and therefore what the “debt” under consideration was “for.”

Dr. Geiger, however, does not raise these difficulties on appeal, and

we leave them to another day, because we are of the view that the evidence

before the bankruptcy court, even when viewed in a light most favorable to

the Kawaauhaus, cannot make this debt one that is “for willful and

malicious injury by the debtor,” as the statute requires. See 11 U.S.C.

§ 523(a)(6).

This phrase has a long history. It was part of the Bankruptcy Act

as early as 1898, and in Tinker v. Colwell, 193 U.S. 473, 481, 490 (1904),

Mr. Justice Peckham gave it an expansive reading, leading to a holding that

a judgment based on a husband's complaint for criminal conversation

(adultery) was not dischargeable. Despite the debtor's argument that in

order to be malicious his action had to have evidenced ill will toward the

husband, the Court held that it was unnecessary under the statute for the

debtor to have acted with “personal malevolence toward the husband.” Id.

at 485. It was enough (that is, the statute was satisfied) if the debtor

had committed “'a wrongful act, done intentionally, without just cause or

excuse.'” Id. at 486, quoting Bromage v. Prosser, 4 Barn. & Cres. 247, 255,

107 Eng. Rep. 1051, 1054 (K.B. 1825). In order for an act to be willful,

it was, according to the Court, necessary only that it be intentional and

voluntary. Tinker, 193 U.S. at 486. The obstacle erected by the statutory

exception to discharge was therefore not nearly so formidable for a

judgment creditor as a first reading of it might have made it appear. All

that the creditor had to show was that the debtor had intentionally

committed a wrongful act that was unjustified and unexcused. (How a

wrongful act could ever be anything but unjustified, the Court did not

explain.)
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When the bankruptcy code was revised in 1978, the words of the

exception to discharge under consideration in this case remained unchanged,

but both the United States Senate and the United States House of

Representatives, in reenacting what is now 11 U.S.C. § 523(a)(6), observed

in legislative reports that they intended the word “willful” to mean

“deliberate or intentional,” and stated specifically that to “the extent

that Tinker v. Colwell ... held” that a “less strict” (Senate), or “looser”

(House), “standard is intended ... [it is] overruled.” See S. Rep. No. 95-

989 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, and H.R. Rep. No. 95-595

(1977), reprinted in 1978 U.S.C.C.A.N. 5963. Both houses of Congress also

specifically stated that it was their intention to overturn any cases that

had applied “a 'reckless disregard' standard” in deciding what debts were

not dischargeable. Id. Not all of the cases that we have decided after

the revision have focused very precisely on the exact meaning of this new

appreciation of what debts the bankruptcy code protects from discharge.

See, e.g., In re Long, 774 F.2d 875 (8th Cir. 1985). But in Cassidy v.

Minihan, 794 F.2d 340, 344 (8th Cir. 1986), our court, after a

consideration of the legislative history of the revised act, held that

Congress had intended to “allow discharge of liability for injuries unless

the debtor intentionally inflicted an injury.”

The Sixth Circuit has put the question that is before us this way:

Do the words “deliberate or intentional,” contained in the legislative

reports referred to above, require an “intentional act that results in

injury” or “an act with intent to cause injury” before a judgment debt can

be exempt from discharge? Perkins v. Scharffe, 817 F.2d 392, 393 (6th Cir.

1987), cert. denied, 484 U.S. 853 (1987). Posed this way, we think that

the question virtually answers itself. We do not hesitate to adopt the

latter construction, because we believe that it is the more natural way to
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interpret the relevant words. For one thing, the word “intentional,” by

itself, will, almost as a matter of natural reflex, cause a lawyer's mind

to turn to that category of wrongs known as intentional torts, a category

that excludes injuries caused by acts that are merely negligent, grossly

negligent, or even reckless. We presume that when Congress uses a word

that has a fixed, technical meaning, it has used it as a term of art.

Second, the word “willful” in the statute (which Congress has said means

“deliberate or intentional”) modifies the word “injury,” so that what is

required for nondischargeability is a deliberate or intentional injury, not

merely a deliberate or intentional act. We think it fair to conclude that

this means a deliberate or intentional invasion of the legal rights of

another, because the word “injury” usually connotes legal injury (injuria)

in the technical sense, not simply harm to a person. 

Adopting the alternative construction, moreover, would render

virtually all tort judgments exempt from discharge. Every act that is not

literally compelled by the physical act of another (as when someone seizes

my arm and causes it to strike another), or the result of an involuntary

muscle spasm, is a “deliberate or intentional” one, and if it leads to

injury, a judgment debt predicated on it would be immune from discharge

under the alternative construction of the statute that is posed in Perkins.

Indeed, we see no reason that a knowing breach of contract would not result

in a judgment that would be exempt from discharge under this legal

principle. Surely this proves too much. A person who deliberately and

intentionally turns the wheel of an automobile to make a left-hand turn

without looking up to see if traffic is coming the other way, an act very

likely to lead to injury, however foolish or even reckless he or she may

be, simply cannot fairly be described as committing an intentional tort.
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We therefore think that the correct rule is that a judgment debt

cannot be exempt from discharge in bankruptcy unless it is based on what

the law has for generations called an intentional tort, a legal category

that is based on “the consequences of an act rather than the act itself.”

Restatement (Second) of Torts § 8A, comment a, at 15 (1965). Unless the

actor “desires to cause consequences of his act, or ... believes that the

consequences are substantially certain to result from it,” he or she has

not committed an intentional tort. Id. § 8A at 15. 

In our case, there is no suggestion whatever that Dr. Geiger desired

to cause the very serious consequences that Mrs. Kawaauhau suffered. So

much is conceded. If, therefore, he was an intentional tortfeasor as we

have defined that term, he would have to have believed that Mrs. Kawaauhau

was substantially certain to suffer harm as a result of his actions.

Although the district court opined that “expert testimony” established that

Dr. Geiger's conduct was “certain or substantially certain to cause

physical harm,” that is not enough. There is nothing in the record, so far

as we can tell, that would support a finding that Dr. Geiger believed that

it was substantially certain that his patient would suffer harm. Indeed,

he testified that he believed that Mrs. Kawaauhau was absorbing the

penicillin that she was taking orally well enough to effect a cure. 

Dr. Halford, moreover, never testified, except in response to a very

leading question, that the harm that Mrs. Kawaauhau suffered was a

substantially certain consequence of Dr. Geiger's course of treatment.

What Dr. Halford said in the main portion of his testimony was that it was

a necessary result of that treatment that the infection would “progress at

a much more rapid rate and more viciously than otherwise.” He also said

that, in this case, the treatment “resulted in her requiring amputation to

save her life
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and in permanent kidney damage,” but he did not say that that was a

necessary result of the treatment, only, as we understand the testimony,

a result of the progress of the infection. We suspect that the course and

consequences of an infection are notoriously difficult to predict, but even

if Dr. Halford had testified that Dr. Geiger’s treatment necessarily (that

is, inevitably) led to Mrs. Kawaauhau’s injuries, plaintiff’s proof still

falls short of the mark. As we have indicated, the real question is

whether Dr. Geiger believed that these consequences were substantially

certain to occur at the time that he attempted his treatment, and the

record simply will not support the conclusion that he did. This is an

important distinction, one in fact that defines the boundary between

intentional and unintentional torts: Even if Dr. Geiger should have

believed that his treatment was substantially certain to produce serious

harmful consequences, he would be guilty only of professional malpractice,

not of an intentional tort.

In the case before us, as our original panel has already noted, “We

believe that ... the worst thing that can be said about Dr. Geiger is that

he acted recklessly in treating Mrs. Kawaauhau with relatively inexpensive

antibiotics that were not as effective as more expensive ones, or in

discontinuing antibiotics when he thought that the infection had run its

course.” In re Geiger, 93 F.3d 443, 444-45 (8th Cir. 1996). It is true,

as the district court noted, that Dr. Geiger acted deliberately and

intentionally when he pursued this course of conduct, but only an elaborate

play on words can transform this behavior into something that is willful

and malicious. It is also true that Dr. Geiger testified that he knew that

intravenous penicillin was the standard treatment, but a deviation from a

standard is not even always negligent, especially if, as may have been the

case here, it was induced by the patient herself or Dr. Geiger reasonably

believed that it was. Assuming,
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without deciding, that Mrs. Kawaauhau did urge Dr. Geiger to cut costs, it

is perhaps true that he should have attempted to convince her that she was

requesting a very foolish, indeed reckless, economy. We express no view

on the duty of physicians in such circumstances, because it is unnecessary

to a resolution of this case, and because the existence and scope of such

a duty will usually be a matter governed by the established law of some

state. Whatever the duty, a breach of it would amount only to a negligent

failure to live up to professional standards. 

We are aware that other circuit courts have reached legal conclusions

that are at odds with our holding in this case. See, e.g., Perkins, 817

F.2d at 394, and In re Franklin, 726 F.2d 606, 610 (10th Cir. 1984). We

believe, however, with respect, that these decisions are not well grounded

in the statute because they pay insufficient attention to the legislative

history of the relevant statutory provisions. They do not, moreover, give

appropriate weight to the well-established interpretational rule that

exceptions from discharge are to be strictly construed so as to give

maximum effect to the policy of the bankruptcy code to provide debtors with

a “fresh start.” See, e.g., In re Kline, 65 F.3d 749, 751 (8th Cir. 1995),

and Werner v. Hofmann, 5 F.3d 1170, 1172 (8th Cir. 1993) (per curiam).

Finally, we observe that in this case we hold only that for a

judgment debt to be nondischargeable under the relevant statutory

provision, it is necessary that it be based on the commission of an

intentional tort. We believe, as we have said, that the debtor’s conduct

cannot otherwise be said to be “willful.” We express no view, however, on

the question whether it is sufficient for nondischargeability that the

judgment be for an intentional tort. We note in this connection that 11

U.S.C. § 523(a)(6) requires that the injury be both “willful and malicious”

before an entitlement to
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the exception to discharge arises. In In re Long, 774 F.2d at 881, we held

that for a creditor to establish that the debtor acted maliciously, it was

necessary to show that the debtor’s conduct was “targeted at the creditor”;

and, since the debtor in that case (though he was an intentional

tortfeasor) was not acting with a purpose to harm creditors, we concluded

that he was not acting maliciously, id. at 882. Since it is not necessary

to a decision in this case that we decide the meaning of the word

“malicious” and the bearing, if any, that the interpretation given to that

word might have on the dischargeability of a judgment debt, we have no

occasion to discuss the matter, and thus we venture no opinion on it.

III.

In sum, since it is not even alleged that Dr. Geiger intended to

inflict an injury on his patient, and it cannot be said that he believed

that an injury was substantially certain to result, the judgment underlying

this case could not have given rise to a “debt ... for willful and

malicious injury by the debtor,” see 11 U.S.C. § 523(a)(6). We therefore

reverse the judgment of the district court.

MURPHY, Circuit Judge, with whom McMILLIAN, Circuit Judge, joins,

dissenting.

Because the court’s reading of 11 U.S.C. § 523(a)(6) goes beyond the

language of the statute and its interpretation by other circuit courts, and

because it unnecessarily restricts this exception to dischargeability, I

respectfully dissent.

Although the court states the question in this case to be whether a

medical malpractice judgment debt is dischargeable in bankruptcy, it is

more accurately stated to be whether the
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particular judgment debt of Dr. Paul Geiger may be discharged. After a

jury trial for medical malpractice in Hawaii, the Kawaauhaus obtained valid

state judgments against Dr. Geiger in the total amount of $355,040. He

left Hawaii and settled in St. Louis. When the Kawaauhaus attempted to

collect their judgment in Missouri, Dr. Geiger filed for protection under

Chapter 7 of the bankruptcy code. His only significant debt was the state

court judgment awarded to the Kawaauhaus. After a hearing, the bankruptcy

court found that under § 523(a)(6) Dr. Geiger’s debt was not dischargeable

because it qualified for exception as a willful and malicious injury. The

district court affirmed, concluding that under In re Long, 774 F.2d 875

(8th Cir. 1985), the debt was not dischargeable because Dr. Geiger knew his

treatment was substandard and that it was certain or substantially certain

to cause Mrs. Kawaauhau harm.

The court reverses because it concludes that Dr. Geiger’s actions

were not willful “even when [the evidence is] viewed in a light most

favorable to the Kawaauhaus,” but its recitation of the facts and its

discussion of them does not reflect adherence to this principle. 

The evidence before us comes from the record made in the bankruptcy

court. At the bankruptcy court hearing the Kawaauhaus offered four

exhibits which were accepted into evidence without objection. These

exhibits consisted of evidence from the state trial (portions of the state

trial transcript and a report prepared by the Kawaauhaus’ expert witness,

Dr. Peter Halford, a board certified surgeon), and evidence prepared for

the bankruptcy hearing (a deposition and affidavit of Dr. Halford). Dr.

Geiger testified at the hearing on his own behalf, but offered no other

evidence.
Dr. Geiger testified in the bankruptcy court that his

1

patient’s concern about cost prevented him from administering the

proper standard of care. In the state trial, both Mr. and Mrs.

Kawaauhau denied they expressed any concern about cost to Dr.

Geiger, and this testimony was entered into the bankruptcy court

record. Dr. Geiger stated twice at the hearing that he never

explained to Mrs. Kawaauhau the cost difference between oral and

intravenous penicillin. In response to continued questioning by

his attorney, he later stated he did not know if he had discussed

the cost difference. The bankruptcy court did not make any

specific findings about the conflicting evidence on this point.

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The bankruptcy court made the following findings of facts. On or

about January 4, 1983, Mrs. Kawaauhau sought medical treatment from Dr.

Geiger. She had been a patient of his in the past and had numerous medical

conditions with which Dr. Geiger was familiar. In this particular

instance, she had dropped a box on her right foot, her leg was swollen and

red, and pus oozed from beneath the nail of her large toe. She complained

of chills, dizziness, pain in the calf, and a fever of 102 degrees the

prior evening. She also developed a blister on her right calf. After an

initial diagnosis of thrombophlebitis, Dr. Geiger received test results on

January 5 and 6 that indicated Mrs. Kawaauhau suffered from a bacterial

infection. On January 7, he prescribed oral penicillin. After Dr. Geiger

left town on January 8, the doctors who assumed care of Mrs. Kawaauhau

immediately started her on intramuscular penicillin and arranged to

transfer her to a specialist in Honolulu. When Dr. Geiger returned on

January 11, he canceled the scheduled transfer because he thought Mrs.

Kawaauhau looked stronger and more alert than when he left, and he also

canceled all antibiotics because he thought her infection might be gone,

she might develop a superinfection, and her blood was too thin. Her

condition deteriorated, and on January 14 the decision was made to amputate

her leg below the knee.

Based on his own testimony, the bankruptcy court found that Dr.

Geiger knew the proper standard of care for treating an infection like Mrs.

Kawaauhau’s was intravenous penicillin rather than oral penicillin, and

that he knew he was not administering care that met this standard. The

1

court also relied on the expert
Some motions seek to bar by collateral estoppel the

2

relitigation of factual and legal issues decided in state court.

See Grogan v. Garner, 498 U.S. 279, 284 n.11 (1991)(collateral

estoppel may apply to dischargeability proceedings under § 523(a));

In re Miera, 926 F.2d 741, 743 (8th Cir. 1991)(willful and

malicious issue necessarily decided by state court award of

punitive damages). 

In this case, unlike Miera, the record does not reveal that

the issue of whether Dr. Geiger inflicted a willful and malicious

injury was decided in the state court action, and that issue is of

course different from the issues of whether Dr. Geiger breached the

standard of care he owed Mrs. Kawaauhau or caused her injury, both

of which would have been essential to the state judgment. See

Restatement (Second) of Torts § 328A (1965 and Supp. 1996).

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testimony of Dr. Halford that Dr. Geiger’s intentional substandard care had

caused Mrs. Kawaauhau’s infection to progress more rapidly and viciously

than it would have otherwise, and that this progression resulted in the

amputation of her leg and permanent damage to her kidneys. Dr. Halford

expressed the additional opinion that Dr. Geiger had “intentionally

administered substandard care to Margaret Kawaauhau that necessarily

resulted in advancing infection in her leg, then loss of her leg, and

permanent damage to her kidneys.” 

The court expresses some uncertainty about the proper procedure in

a case such as this and whether the focus should be on the state court

pleadings or evaluation of the evidence presented to the state jury. A

survey of leading cases indicates that sometimes discharge exception issues

are resolved by motions for summary judgment. See, e.g., In re Zelis, 66 2

F.3d 205, 208 (9th Cir. 1995); In re Walker, 48 F.3d 1161, 1163 (11th Cir.

1995). 
-16-

Willfulness and maliciousness are typically resolved in a case such as

this, however, after a hearing in the bankruptcy court which may involve

additional evidence. See e.g., In re Stelluti, 94 F.3d 84 (2d Cir.

1996)(bench trial on dischargeability); In re Stanley, 66 F.3d 664 (4th

Cir. 1995)(bankruptcy court hearing on whether actions leading to state

court judgment were willful and malicious under § 523(a)(6)); In re

Thirtyacre, 36 F.3d 697 (7th Cir. 1994)(evidentiary hearing to determine

if actions were willful and malicious); In re Conte, 33 F.3d 303 (3d Cir.

1994)(remand for hearing on whether actions underlying state court verdict

were willful and malicious under § 523(a)(6)); In re Pasek, 983 F.2d 1524

(10th Cir. 1993)(bankruptcy court hearing on willful and malicious); In re

Franklin, 615 F.2d 909, 911 (10th Cir. 1980)(bankruptcy court not limited

to state court record in making dischargeability determination).

The parties here do not challenge the factual findings of the

bankruptcy court or the admissibility of the evidence on which it relied.

They view the question for this court to be whether the facts found by the

bankruptcy court indicate that the injury caused by Dr. Geiger was willful

and malicious and whether the judgments assessed against him for that

injury is therefore dischargeable. The factual findings of the bankruptcy

court are reviewed for clear error, and its legal conclusions are reviewed

de novo. In re Cent. Ark. Broad. Co., 68 F.3d 213, 214 (8th Cir. 1995)(per

curiam). I believe a careful review shows that the bankruptcy court’s

findings are not clearly erroneous and that they are supported in the

record.

The statutory provision controlling the question of discharge in this

case, 11 U.S.C. § 523(a)(6), bars discharge in bankruptcy of any debt “for

willful and malicious injury by the debtor. . . .” If the intent of

Congress is clear from the text of the statute, no
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further inquiry is necessary. Good Samaritan Hosp. v. Shalala, 113 S. Ct.

2151, 2157 (1993); Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1140 (8th Cir.

1993)(en banc). The legislative history is consulted only if that intent

cannot be discerned from the plain language. Arkansas AFL-CIO, 11 F.3d at

1140. 

The court finds it unnecessary to decide the meaning of “malicious”

because of its treatment of “willful.” The statute does not define

“willful,” but when Congress uses a term of art, that term is accorded its

established meaning. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342

(1991). According to Prosser and Keeton, “[t]he usual meaning assigned to

‘willful’ . . . . is that the actor has intentionally done an act of an

unreasonable character in disregard of a known or obvious risk that was so

great as to make it highly probable that harm would follow . . .” W. Page

Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 213 (5th ed.

1984). Although the meaning of “willful” can be influenced by its context,

in civil actions the word is commonly used for an act which is intentional,

knowing, or voluntary, as distinguished from accidental. Screws v. United

States, 325 U.S. 91, 101 (1945); United States v. Murdock, 290 U.S. 389,

394 (1933). Only when used in a criminal context does it generally mean

an act done with bad purpose. Screws, 325 U.S. at 101; Murdock, 290 U.S.

at 394. 

The Supreme Court has had only one occasion to discuss the meaning

of willful and malicious in the statutory section on exceptions to

discharge and that was in Tinker v. Colwell, 193 U.S. 473 (1904). In

Tinker, the Court interpreted “willful and malicious” in this way:

a wilful disregard of what one knows to be his duty, an act

which is against good morals, and wrongful in and of
-18-

itself, and which necessarily causes injury and is done

intentionally, may be said to be done wilfully and maliciously,

so as to come within the exception.

Id. at 487. The Kawaauhaus argue that Tinker is still good law because it

has never been overruled or modified by any subsequent Supreme Court case,

but Dr. Geiger argues that the legislative history of the new bankruptcy

code shows Congress intended in it to override Tinker. 

In the bankruptcy code enacted in 1978 Congress made no change in the

wording of this exception to discharge, but the more than 700 pages of

associated committee reports make brief reference to the meaning of §

523(a)(6). See S. Rep. No. 95-989, at 79 (1978), reprinted in, 1978

U.S.C.C.A.N. 5787, 5865, and H.R. Rep. No. 95-595, at 365 (1977), reprinted

in 1978 U.S.C.C.A.N. 5963, 6320-21. The reports comment:

“[W]illful” means deliberate or intentional. To the extent

that Tinker v. Colwell (citation omitted) held that a [looser

(House version); less strict (Senate version)] standard is

intended, and to the extent that other cases have relied on

Tinker to apply a “reckless disregard” standard, they are

overruled.

Id. This commentary reveals several things, but also raises additional

questions. It indicates that “willful means deliberate or intentional” and

that § 523(a)(6) calls for something more than reckless disregard. While

it indicates some uncertainty as to what Tinker actually held, any reading

of it to mean only reckless disregard is overruled. The commentary does

not define a
As the Third Circuit has noted: 3

While this legislative history excludes recklessness [as a

definition of “willful”], it does not state exactly what is

required. The bankruptcy courts that have decided this matter

have been divided as to whether the statute requires an

intentional act that results in injury or an act with intent

to cause injury. (Citations and quotations omitted).

Moreover, the meaning of either of these two interpretations

is not self-evident.

In re Conte, 33 F.3d at 306.

-19-

heightened standard, however, or how the words intentional and deliberate

should be understood.3

This legislative history does not call for the interpretation adopted

today by the court -- that Congress intended “willful” to incorporate

subjective specific intent to injure and to restrict the application of §

523(a)(6) to intentional torts. In reaching its conclusion, the court

relies on the definition of intent found in the Restatement (Second) of

Torts § 8A (1965). The court reads this section to mean that intent can

only be shown by proof of the subjective desire to injure or the subjective

belief that injury is substantially certain to occur, but comment b notes:

Intent is not . . . limited to the consequences which are

desired. If the actor knows that the consequences are certain,

or substantially certain, to result from his act, and still

goes ahead, he is treated by the law as if he had in fact

desired to produce the result.

As Judge Becker points out in In re Conte, even if one accepts the

Restatement definition as controlling, actions which in an objective sense

are substantially certain to cause harm can be considered willful and

malicious. 33 F.3d at 307-08. 
In Pierce a less restrictive and “naturally conveyed” meaning 4

was adopted rather than one directed by committee comments

determined not to be an authoritative expression of the meaning of

a phrase. Id. at 565-68.

Even when the acts of the debtor could be characterized as

5

intentional torts, other circuits have not required that a debt

result from an intentional tort judgement in order to prevent

discharge. See, e.g., In re Stelluti, 94 F.3d at 88; In re

Stanley, 66 F.3d at 667-68.

 

The court is not clear about what its requirement of an

intentional tort means. If the intent were to restrict § 523(a)(6)

to debts resulting from a judgment for an intentional tort, it

would add an unprecedented substantive and procedural limitation to

this section by requiring parties to obtain a judgment before

initiating an adversary proceeding to prevent discharge. If, on

the other hand, the court only means to restrict § 523(a)(6) to

conduct that can be characterized as intentional torts, it is

inviting parties to litigate state tort actions in the bankruptcy

court. For example, in this case, the Kawaauhaus could plausibly

argue that Dr. Geiger’s actions amounted to battery. See

Restatement (Second) of Torts §§ 18-20 (1965).

-20-

In reenacting the discharge section of the Bankruptcy Act of 1898 in

the code adopted in 1978, Congress used terminology in § 523(a)(6)

identical to the language interpreted by the Supreme Court in Tinker.

Congress could have worded the section to require specific intent to injure

or an intentional tort if that was its intent, but it did not. The

legislative history also does not do either; it does not mention

intentional torts or say what is meant by “deliberate or intentional.”

Comments in committee reports do not necessarily control meaning, see,

e.g., Pierce v. Underwood, 487 U.S. 552, 567-68 (1988), but subsequent to 4

the enactment of the new bankruptcy code courts have tried to conform to

the points raised in the legislative history. The variety of formulations

which have resulted grow out of the lack of clarity in the committee

comments.

No other circuit interprets the statute or the legislative history

to require proof of a subjective intent to injure or proof of an

intentional tort. The court describes its understanding of 5
-21-

the statute as the “natural” meaning, with very little reference to the

reasoning and analysis of the circuits which have reached different

results. Courts draw varying meanings from the use in § 523(a)(6) of the

language construed in Tinker and the legislative history behind it. While

several other courts recognize evidence of specific intent to injure as one

way to meet the statutory standard, none absolutely require it.

The First, Third, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits

all employ a standard that prevents discharge of a debt if the debtor’s act

could be predicted to produce the injury suffered by the creditor, but the

precise wording of the standard varies. The Sixth Circuit construes

willful to apply to an act done intentionally which necessarily produces

harm, and malicious to mean wrongful, without just cause or excuse, or

excessive. Vulcan Coals, Inc. v. Howard, 946 F.2d 1226, 1228-29 (6th Cir.

1991), (citing Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir.), cert.

denied, 484 U.S. 853 (1987)). Similarly, the Ninth Circuit, reading

willful and malicious together, requires an act done intentionally that

necessarily produces harm without just cause or excuse. In re Zelis, 66

F.3d at 208. The Third Circuit standard for willful and malicious is an

act done intentionally which is “substantially certain to result in injury

or where the debtor desired to cause injury.” In re Conte, 33 F.3d at 308.

The Eleventh and Fifth Circuits, like the Third, require proof of an

intentional act with the purpose to cause injury or one which is

substantially certain to cause injury. In re Delaney, 97 F.3d 800, 802

(5th Cir. 1996)(per curiam); In re Walker, 48 F.3d at 1165.
-22-

Two circuits use somewhat different terminology, but their focus on

the foreseeability of the injury is similar to the examination required by

other circuits. In the Tenth Circuit, there will be no discharge if the

debtor acts “knowing full well that his conduct will cause particularized

injury.” In re Pasek, 983 F.2d 1527. Creditors “are not restricted to

direct evidence of specific intent to injure in satisfying the requirements

of § 523(a)(6) . . . ‘the debtor’s actual knowledge or the reasonable

foreseeability that his conduct will result in injury to the creditor’ are

highly relevant.” Id. (citations omitted). In the First Circuit, “the

term ‘willful and malicious’ in § 523(a)(6) means an act intentionally

committed, without just cause or excuse, in conscious disregard of one’s

duty and that necessarily produces an injury.” Printy v. Dean Witter

Reynolds, Inc., No. 96-2195, 1997 WL 160122, at *7 (1st Cir. Apr. 10,

1997)(citation omitted).

The standards in the remaining circuits which have ruled on the

question vary, but none requires intent to produce the injury. In the

Second Circuit the standard requires an intentional and deliberate act

which is wrongful and without just cause or excuse, even in the absence of

personal hatred, spite or ill-will. In re Stelluti, 94 F.3d at 88. In the

Fourth Circuit a debtor’s injurious act, done deliberately and

intentionally, in knowing disregard of the rights of the other, is

sufficiently willful and malicious to prevent discharge, even if a debtor

bears a creditor no subjective ill will or specific intent to injure. In

re Stanley, 66 F.3d at 667. The Seventh Circuit has concluded that §

523(a)(6) does not require specific intent to injure in order to prevent

discharge, but it has not developed a definition beyond that. In re

Thirtyacre, 36 F.3d at 701. 
The Tenth Circuit has also addressed the dischargeability of 6

a medical malpractice judgment, but that case was applying the

“willful and malicious injury” section of the Bankruptcy Act of

1898. See In re Thurman, 901 F.2d 839, 841 (10th Cir. 1990)

(discussing In re Franklin, 726 F.2d 606 (10th Cir. 1984)).

-23-

The only other circuit to rule on the dischargeability of a medical

malpractice debt under § 523(a)(6) declined to discharge the physician’s 6

debt on facts very similar to those in this case. In Perkins the doctor

had unnecessarily injected the patient’s foot with an unsterile needle,

failed to perform timely tests on the resulting infection, subsequently

ignored the belated test results, and failed to hospitalize the patient

when hospitalization was necessary. The court, citing the leading

bankruptcy treatise, employed the standard of “a wrongful act done

intentionally, which necessarily produces harm and is without just cause

or excuse” and concluded that it was met by the facts. Perkins, 817 F.2d

at 394 (citing 3 Collier on Bankruptcy 523-111 (15th ed. 1986)). 

Dr. Geiger’s debt should similarly not be discharged. It is not

necessary in this case to consider whether the Perkins standard or one of

the other circuit definitions of willful and malicious is most appropriate

in light of the legislative history and policy because even under In re

Long the debt is not subject to discharge.

Until today this court’s construction of the statute, although more

restrictive than some, was generally within the range of interpretations

found in other circuits. Many of our previous cases use a standard for §

523(a)(6) which was articulated in In re Long, 774 F.2d at 881. See In re

Waugh, 95 F.3d 706, 711 (8th Cir. 1996); In re Miera, 926 F.2d at 743-44.

In re Long concluded “willful” meant conduct which was “headstrong and

knowing,” and “malicious” meant “targeted at the creditor”, at least in the

sense that the injury is certain or almost certain to occur. Id. at 881.
The court also cites Cassidy v. Minihan, 794 F.2d 340 (8th

7

Cir. 1986), which held that an injury caused by a drunk driver was

not an intentional injury and therefore the debt was dischargeable.

Cassidy considered the legislative history connected with the

enactment of the bankruptcy code and determined that “Congress

intended to bar the discharge of intentionally inflicted injuries,”

id. at 344, but it did not consider by what standard such intent

would need to be shown and it did not have the benefit of the many

other circuit discussions which have issued since 1986. 

Subsequent to the events giving rise to Cassidy, Congress

amended the statute to bar discharge of debts arising from drunk

driving accidents, see 11 U.S.C. § 523(a)(9) (1997), illustrating

that Congress can easily amend the statute if it is unhappy with

its interpretations. 

-24-

Since “intentional harm may be very difficult to establish, the likelihood

of harm in an objective sense may be considered in evaluating intent.” Id.

Although the court cites In re Long in support of its conclusion granting

discharge, it actually enunciates a significantly more restrictive

standard.7

Dr. Geiger’s debt should not be discharged under In re Long because

his admitted administration of substandard care shows an almost certain

likelihood of harm resulting from headstrong and knowing acts. The

bankruptcy court found that Mrs. Kawaauhau reported to Dr. Geiger

complaints of fever and a swollen foot which was oozing pus. After

receiving test results that changed his initial diagnosis from

thrombophlebitis to one of infection, Dr. Geiger knew the most effective

treatment was intravenous penicillin, and yet he prescribed oral

penicillin. He then traveled away and left his patient in the care of

other doctors who switched Mrs. Kawaauhau to intramuscular penicillin and

Moxam and authorized a transfer to a specialist. When he returned, Dr.

Geiger noted that Mrs. Kawaauhau appeared to be doing better after his

absence. He chose to terminate her intramuscular treatment, however, to

cancel the transfer to a specialist, and to discontinue
-25-

all antibiotics only four days after starting them. Dr. Geiger admits he

knew his care was substandard, and the uncontested expert testimony was

that his intentional substandard care harmed Mrs. Kawaauhau. The district

court did not err in concluding that the evidence and the findings of the

bankruptcy court prevent discharge under In re Long.

Interpreting § 523(a)(6) to require an intentional tort and proof of

a specific intent to injure does not further the policy underlying this

section. Section 523(a) makes it clear that Congress did not intend all

debts to be forgiven, notwithstanding its general policy of allowing a

debtor a “fresh start.” See Miera, 926 F.2d at 745. It intended to

relieve honest and unfortunate debtors. In re Molitor, 76 F.3d 218, 220

(8th Cir. 1996). The same House report cited by the court notes one

purpose of the 1978 amendments was to provide a more effective remedy for

the “unfortunate consumer debtor.” H.R. Rep. No. 95-595, at 4, reprinted

in 1978 U.S.C.C.A.N. at 5966. Examples given of “unfortunate consumer

debtors” include families suffering from a serious illness, unemployment,

or aggressive consumer creditors. H.R. Rep. No. 95-595, at 116, reprinted

in, 1978 U.S.C.C.A.N. at 6077. While examples listed in a committee report

should not be regard as exhaustive, Dr. Geiger can hardly be characterized

as an unfortunate consumer debtor. He is a medical doctor who knowingly

administered substandard care to his patient. He was found by a jury to

have committed malpractice, but he did not carry malpractice insurance.

He had no other debts than the malpractice judgment and filed his petition

for bankruptcy to avoid payment of that judgment. The unfortunate consumer

in this case could easily be seen to be on the opposite side from the

debtor.

By enacting the exceptions to discharge, Congress has specified that

some debtors may disentitle themselves to relief,
Three of these also have an alternative standard similar to

8

the court’s requirement of purpose to cause injury, but they do not

limit the creditor to this option alone.

-26-

but the court’s definition of “willful” is so narrow that it would defeat

the purpose of § 523(a)(6) by restricting it to intentional torts or the

unusual circumstance where a debtor is “foolhardy enough to make some

plainly malevolent utterance expressing his intent to injure his creditor”

or to express the belief that injury was substantially certain to follow.

In re Conte, 33 F.3d at 308 (citation omitted). Requiring proof of a

subjective intent to harm “would undermine the purposes of [§ 523(a)(6)]

and place a nearly impossible burden on a creditor who wishes to show that

a debtor intended to do him harm.” In re Conte, 33 F.3d at 308(citation

omitted); see also In re Long, 774 F.2d at 881. 

The court has greatly expanded the meaning and significance of the

few words in the legislative history and has established a new standard

that differs from the practice in the nine other circuits which have

examined the section. Seven circuits utilize a definition which includes

an intentional act substantially certain to lead to injury or one that

would necessarily lead to it. Two circuits use what might be

8

characterized as a knowing disregard standard, and one has ruled only that

the statute does not require specific intent. To the extent uniform

interpretation of the bankruptcy code is seen as a policy goal, the court

today does nothing to further it. See e.g., Perkins, 817 F.2d at 395

(Engel J. concurring).

There is no reason to create a special shield for medical malpractice

judgments without a showing that Congress intended to exempt this category

of debts from the reach of § 523(a)(6). Just as with other types of debts,

the facts of the case must be
Several other red herrings have also been raised. The

9

court’s suggestion that a different result in this case would lead

to an interpretation of § 523(a)(6) that would cover even a breach

of contract has no support in the record. Neither does the

statement at oral argument by counsel for Dr. Geiger that failure

to discharge his debt would lead to higher malpractice insurance

rates.

An act that will necessarily lead to harm is the equivalent 10

of one substantially certain to do so because “all effects are

probablistic” and it cannot be predicted that a particular result

is certain or necessary. In re Conte, 33 F.3d at 308 n.2.

Unlike the bankruptcy judge who was the trier of fact, the

11

court believes that Dr. Halford’s expert testimony only shows that

Dr. Geiger’s treatment resulted in the worsening of Mrs.

Kawaauhau’s infection, not that it necessarily led to any other

injury to her. It bases this distinction on its suspicion that the

course of an infection is notoriously difficult to predict. In

contrast, the bankruptcy court found that Dr. Geiger’s treatment

led to the worsening of Mrs. Kawaauhau’s condition and the eventual

amputation of her leg. Even if there are two reasonable

interpretations of the evidence, this court is required to defer to

the bankruptcy court’s findings absent clear error. In re LeMaire,

898 F.2d 1346, 1349 (8th Cir. 1990).

-27-

examined in order to decide the issue of discharge. Nondischarge of Dr.

Geiger’s debt would not mean that all other malpractice judgment debts

could not be discharged. Dischargeability depends on the facts of the

9

individual case and whether the proof rises above reckless disregard of the

rights of the creditor, whether proven by subjective intent to injure or

by objective probability that the injury was necessarily or substantially

certain to follow from the intended act. 

10

The findings and record here show conduct that was more than

reckless, specifically the knowing administration of substandard care that

was substantially certain to cause injury. Absent “a very obvious and

exceptional showing of error,” this court is not free to reevaluate the

evidence presented in the bankruptcy court. Judge v. Prod. Credit Ass’n

of the Midlands, 969 F.2d 699, 700 (8th Cir. 1992)(per curiam); see also

In re Exec Tech Partners, 107 F.3d 677, 680 (8th Cir. 1997). Since Dr. 11

Geiger inflicted a willful
-28-

and malicious injury within the meaning § 523(a)(6), I would affirm the

judgment denying the discharge of his debt to the Kawaauhaus. 

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.