United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 95-3913
In re: Paul W. Geiger, * * Debtor. * *

------------------------- * * Pau l 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 , WOLLM AN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, an d MURPHY, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
This case raises the question whethe r a judgment debt resulting from
a medi cal malpractice action is dischargeable in bankruptcy. Th e Kawaauhaus maintain t hat 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 unpublishe d opini on. On further appeal, a unanimous panel of this court reversed , relying on Cassidy v. Minihan , 794 F.2d 340 (8th Cir. 1986). The pane l observed that the wor st that might even colorably be said of the debtor's behavior was that it was reckless, and that since there was no evidenc e that he intended to h arm his patient, it was not possible to say that his action s were either willful or malicious, much less both. See In r e Geiger , 93 F.3d 443 (8th Cir. 1996).

We gr anted the Kawaauhaus' subsequent suggestion for rehearing e n banc , and we reverse the judgment of the district court.

I. Mrs. Marg aret 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 alread y presc ribed would be an effective treatment for her condition. H e event uallyprescribed oral penicillin in place of the tetracycline

. Dr. Geige r then departed on a business trip, leaving his patient in th e care of other physicians, who began to administe r intramuscular penicillin and d ecided to transfer her to an infectious disease specialist. Whe n Dr. Geiger returned from his trip, however, he discontinued all antibiotic s because he believed that the infection had run its course. A few day s late r, Mrs. Kawaauhau's condition deteriorated and her leg had to b e amputated below the k nee. When the Kawaauhaus succeeded in an action for malpractice against Dr. Geiger, he petitioned for bankruptcy.

### -3- In an effo rt to prove that the malpractice judgment was not a disc hargeable debt, the Kawaauhaus introduced into evidence before th e bankruptcycourt certain portions of the transcript of the trial of th e malpractice action. The transcript revealed that Dr. Geiger had admitted at trial that the proper treatment for the streptococcus infection wit h which he was faced was intravenous penicillin, that he knew that at th e time, but that he had nevertheless administered the penicillin orall y partly because his patient had frequently complained about medical expense s (he had been treating her for a number of years) and had specificall y expressed a desire to avoid costly medicines. In response to a direc t question about whether he acknowledged that intravenous penicillin was “th e proper standard of care in the circumstances,” D r. Geiger answered that he did. Th e Kawaauhaus, without objection from Dr. Geiger, also introduce d into ev idence before the bankruptcy court the deposition of Dr. Pete r Halford, a physician hired to examine both Mrs. Kawaauhau's medical record s and Dr. Ge iger's testimony in the original trial and to render exper t opinions based on the m. 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 stoppe d admin istering all antibiotics for a time. But Dr. Halford agreed wit h counsel that Dr. Geig er's most egregious error was that he had considered the re lative costs of administering oral and intravenous penicillin i n deciding which treatment to choose. It is mainly on the foundation of thi s last exchange that the Kawaauhaus have erected their theory that

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Dr. Geiger acted willfully and maliciously, beca use, the argument runs, he intent ionallyrendered substandard care to Mrs. Kawaauhau, an act, th e Ka waauhaus say, that necessarily led to her injury. “It is thi s 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 o f Dr. Ge iger's treatment, Dr. Halford believed that Mrs. Kawaauhau ha d req uested that Dr. Geiger cut costs, Dr. Halford did not say, and th e 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 a n alt ernative that is more economically feasible, but cost should have n o 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 testim onyin which he admitted knowing, “in fact, that intravenou s penicillin was the appropriate standard of care for this type of problem and yet he intentionally used something that was less effective for th e sak e of cost.” Dr. Halford ended his deposition by agreeing with th e Kawaauhaus' lawyer that “Dr. Geiger intentionall y administered substandard
care to Margaret Kawaauhau that necessarily resulted in advancing infectio n in her leg, then loss of her leg, and permanent damage to her kidneys.” The bank ruptcy court, though it did not say so directly, evidentl y credited everything that Dr. Halford said in his deposition, and concluded that “Dr. Geiger's treatment of Mrs. Kawaauhau was so far below th e standard level of care that it can be categorize d 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. Ge iger'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” rendere d his conduct willful, and the fact that “his conduct was certain or substantially certain to cause phy sical harm” rendered it malicious within the meaning of the relevan t provision of the bankruptcy code.

II. We begin our consideration of this evidence by admitting to som e uneasin ess about the procedure employed in the bankruptcy court. Th e comp laint before the bankruptcy court sought to have a judgment deb t 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 necessaril y predicated on, a jury verdict that was in turn b ased on evidence presented at a tria l. The parties did not furnish us with a copy of the tria l transcript, and we are thus unable to know what testimony the jury heard that mig ht have convinced it that Dr. Geiger had committed medica l malpracti ce. We therefore find it hard to understand how we can decid e what conduct the verdict, and thus the “debt,” was “for” within the meanin g of the statute. We wonder about the propriety of going behind th e pleadings in the orig inal malpractice action, which asked for damages for Dr. Geiger's negligence, to decide what this “debt” was “for.” (Plaintiff s prayed for punitive damages, but the issue was n ot 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 t heir verdict was supported by, and therefore what the “debt” under consideration was “for.” Dr. Geiger, however, does not raise these difficulties on appea l, and we leave them to another day, because we are of the view that the evidence before the bankruptcy court, even when viewed ina light most favorable to the Kawaauhaus, cannot make this debt one that is “for willful an d 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 Ac t 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 tha t
a judg ment based on a husband's complaint for criminal conversatio n (adultery) was not dischargeable. Despite the debtor's argument that in order to be malicious his action had to have evi denced ill will toward the husband, the Court he ld that it was unnecessary under the statute for the debtor to have acted with “personal malevolence toward the husband.” Id. at 485. It was enoug h (that is, the statute was satisfied) if the debtor had committed “'a wro ngful act, done intentionally, without just cause or excuse.'” Id. at 486, quoting Bromage v. Prosser , 4 Barn. & Cres. 247, 255 , 107 Eng. Rep. 1051, 1 054 (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 statutor y 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 intentionall y
comm itted a wrongful act that was unjustified and unexcused. (How a wrong ful act could ever be anything but unjustified, the Court did no t explain.)

### -7- When the bankruptcy code was revised in 1978, the words of th e exception to discharge under consideration in this case remained unchanged , bu t both the United States Senate and the United States House o f Representatives, in reenacting what is now 11 U. S.C. § 523(a)(6), observed in l egislative reports that they intended the word “willful” to mea n “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 in1978 U.S.C.C.A.N. 5963. Bo th houses of Congress also specifically stated that it was their intention to overturn any cases that had applied “a 'reckl ess disregard' standard” in deciding what debts were not dischargeable. Id. Not all of the cases that we have decided after the revision have foc used very precisely on the exact meaning of this new apprec iation 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 tha t Congress had intended to “allow discharge of lia bility for injuries unless the debtor intentionally inflicted an injury.” The Si xth Circuit has put the question that is before us this way : Do the words “deliberate or intentional,” contained in the legislativ e reports referred to above, require an “intentional act that results i n 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 quest ion virtually answers itself. We do not hesitate to adopt th e 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 categ ory 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 wor d tha t 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, no t merely a deliberate or intentional act. We thin k it fair to conclude that this means a deliberate or intentional invasion of the legal rights o f another, because the word “injury” usually conno tes legal injury ( injuria ) in the technical sense, not simply harm to a person.

Ado pting the alternative construction, moreover, would rende r virtually all tort judgments exempt from dischar ge. Every act that is not literally compelled by the physical act of anoth er (as when someone seizes myarm and causes it to strike another), or the result of an involuntary muscle spasm, is a “deliberate or intentional” one, and if it leads t o injury, a judgment debt predicated on it would be immune from discharg e 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 resul t in a judgment that would be exempt from discharge under this lega l principle

. Surely this proves too much. A person who deliberately an d intentionallyturns the wheel of an automobile to make a left-hand tur n without looking up to see if traffic is coming the other way, an act very likelyto lead to injury, however foolish or even reckless he or she may be, simply cannot fairly be described as committing an intentional tort.

### -9- We the refore think that the correct rule is that a judgment deb t 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 cau se 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 muchis conceded. If, therefore, he was an intentional tortfeasor as we have defined that term, he would have to have be lieved that Mrs. Kawaauhau

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

. Although the district court opined that “expert testimony” established tha t Dr. Ge iger's conduct was “certain or substantially certain to caus e physical harm,” that is not enough. There is nothing in the record, so fa r as we can tell, that would support a finding tha t 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 th e penicillin that she was taking orally well enough to effect a cure. Dr. Halford, moreover, never testifi ed, except in response to a very leading question, that the harm that Mrs. Kawaauhau suffered was a subs tantiallycertain 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 in fection would “progress at
a much more rapid rate and more viciously than otherwise.” He also said that, in this case, the treatment “resulted in h er requiring amputation to save her life

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and in perm anent kidney damage,” but he did not say that that was a necessaryresult of the treatment, only, as we understand the testimony, a result of the progress of the infection. We s uspect that the course and consequences of an infection are notoriously difficult to predict, but eve n if Dr. Halford had testified that Dr. Geiger’s t reatment necessarily (that is, inevitably) led t o Mrs. Kawaauhau’s injuries, plaintiff’s proof still falls shor t of the mark. As we have indicated, the real question i s whet her Dr. Geiger believed that these consequences were substantiall y
cer tain to occur at the time that he attempted his treatment, and th e record s imply will not support the conclusion that he did. This is a n import ant distinction, one in fact that defines the boundary betwee n intent ional and unintentional torts: Even if Dr. Geiger should hav e 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 ca se before us, as our original panel has already noted, “We believe that ... the worst thing that can be sai d about Dr. Geiger is that he acted recklessly in treating Mrs. Kawaauhau w ith relatively inexpensive anti biotics that were not as effective as more expensive ones, or i n discontinuing antibiotics when he thought that the infection had run its course.” In re Geige r , 93 F.3d 443, 444-45 (8th Cir. 1996). It is true,

as the district court noted, that Dr. Geiger acted deliberately an d intentionally when he pursued this course of conduct, but only an elaborat e playon words can transform this behavior into something that is willful and malicious. It is also true that Dr. Geiger testified that he knew tha t intravenous penicilli n was the standard treatment, but a deviation from a standard is not even always negligent, especiall y if, as may have been the case here, it was ind uced by the patient herself or Dr. Geiger reasonably believed that it was. Assuming,

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without deciding, that Mrs. Kawaauhau did urge D r. 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 th is case, and because the existence and scope of such

a duty will usually be a matter governed by the established law of som e 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 concl usions 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 decis ions are not well grounded in the statute becaus e they pay insufficient attention to the legislative history of the relevant statutory provisions. T hey do not, moreover, give app ropriate weight to the well-established interpretational rule tha t
exce ptions from discharge are to be strictly construed so as to giv e maximum effect to the policy of the bankruptcy code to provide debtors wit h
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 jud gment debt to be nondischargeable under the relevant statutor y provision , it is necessary that it be based on the commission of a n 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 qu estion whether it is sufficient for nondischargeability that th e 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 hel d 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” ;
an d, since the debtor in that case (though he was an intentiona l tortfeasor) was not a cting 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 wor d “malicious” and the bearing, if any, that the in terpretation given to that word might have on the dischargeability of a judgment debt, we have n o 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 t o inflict an injury on his patient, and it cannot be said that he believed that an injury was substantially certain to result, the judgment underlyin g this case co uld not have given rise to a “debt ... for willful an d malicious injury by the debtor,” see 11 U.S.C. § 523(a)(6). We therefore reverse the judgment of the district court.

MUR PHY, 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, an d because it unnecessarily restricts this exception to dischargeability, I respectfully dissent.

Although the court states the question in this case to be whether a medica l malpractice judgment debt is dischargeable in bankruptcy, it i s more accurately stated to be whether the

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particula r judgment debt of Dr. Paul Geiger may be discharged. After a jury trial for medical malpractice in Hawaii, the Kawaauhaus obtained vali d state jud gments against Dr. Geiger in the total amount of $355,040. H e left Hawa ii and settled in St. Louis. When the Kawaauhaus attempted t o collect their judgmen t in Missouri, Dr. Geiger filed for protection under Chapter 7 of the bankruptcy code. His only sign ificant 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 87 5 (8th Cir. 1985), the debt was not dischargeable because Dr. Geiger knew hi s treatment was substandard and that it was certai n or substantially certain to cause Mrs. Kawaauhau harm.

The court reverses because it concludes that Dr. Geiger’s action s
were n ot willful “even when [the evidence is] viewed in a light mos t favorable to the Kawaauhaus,” but its recitation of the facts and it s discussion of them does not reflect adherence to this principle.

The evide nce before us comes from the record made in the bankruptcy court. At the bankruptcy court hearing the Kawaauhaus offered fou r exhibi ts which were accepted into evidence without objection. Thes e exhibits consisted of evidence from the state tr ial (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 te stified at the hearing on his own behalf, but offered no othe r evidence.

### Dr. Geiger testified in the bankruptcy court that hi s 1 

### patient’s concern about cost prevented him from administering the proper standard of care. In the state trial, both Mr. and Mrs

. Kaw aauhau denied they expressed any concern about cost to Dr

. Gei ger, and this testimony was entered into the bankruptcy cour t record. D r. Geiger stated twice at the hearing that he neve r exp lained to Mrs. Kawaauhau the cost difference between oral an d intrav enous penicillin. In response to continued questioning b y his attorney, he later stated he did not know if he had discussed the cost difference. The bankruptcy court did not make an y specific findings about the conflicting evidence on this point.
-14- The bankruptcy court made the following findings of facts. On o r abo ut January 4, 1983, Mrs. Kawaauhau sought medical treatment from Dr

. Geiger. She had been a patient of his in the past and had numerous medica l conditio ns with which Dr. Geiger was familiar. In this particula r instance, she had dropped a box on her right foo t, her leg was swollen and red, and pus oozed from beneath the nail of her large toe. She complained of chill s, dizziness, pain in the calf, and a fever of 102 degrees th e prior evening. She a lso developed a blister on her right calf. After an initial diagnosis of thrombophlebitis, Dr. Geige r received test results on January5 and 6 that indicated Mrs. Kawaauhau suffered from a bacteria l infection. On January 7, he prescribed oral pen icillin. After Dr. Geiger left town on January 8, the doctors who assumed care of Mrs. Kawaauha u immed iatelystarted her on intramuscular penicillin and arranged t o transfer her to a specialist in Honolulu. When Dr. Geiger returned o n January11, he canceled the scheduled transfer because he thought Mrs

. Kawaauhau looked stronger and more alert than when he left, and he als o canceled all antibiotics because he thought her infection might be gone, she mi ght develop a superinfection, and her blood was too thin. He r condition deteriorated, and on January 14 the decision was made to amputat e 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, an d that he knew he was not administering care that met this standard. Th e 1 court also relied on the expert

### So me motions seek to bar by collateral estoppel th e 2 

### rel itigation of factual and legal issues decided in state court

. See Grogan v. Garner , 498 U.S. 279, 284 n.11 (1991)(collatera l estoppel may apply to dischargeability proceedings under § 5 23(a)); In re Miera , 926 F.2d 741, 743 (8th Cir. 1991)(willful an d mali cious issue necessarily decided by state court award o f punitive damages).

In this case, unlike Miera , the record does not reveal tha t the issue of whether Dr. Geiger inflicted a willful and malicious injury was decided in the stat e court action, and that issue is of course different from the issues of whether Dr. Geiger breac hed the standard of care he owed Mrs. Kawaauhau or caused her injury, both of which would have been essential to the state judgment. Se e Restatement (Second) of Torts § 328A (1965 and Supp. 1996).
-15- testimony of Dr. Halford that Dr. Geiger’s intentional substandard care ha d caused Mrs. Kawaauhau’s infection to progress more rapidly and viciously than it would have otherwise, and that this progression resulted in th e amputatio n of her leg and permanent damage to her kidneys. Dr. Halfor d expre ssed the additional opinion that Dr. Geiger had “intentionall y ad ministered substandard care to Margaret Kawaauhau that necessaril y
res ulted in advancing infection in her leg, then loss of her leg, an d permanent damage to her kidneys.” The court expresses some uncertainty about the proper procedure i n
a ca se such as this and whether the focus should be on the state cour t pleadings or evaluation of the evidence presented to the state jury. A survey of leading cases indicates that sometimes discharge exception issue s are resolv ed 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).

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Willfulness and maliciousness are typically resolved in a case such a s this, however, after a hearing in the bankruptcy court which may involve additiona l evidence. See e.g. , In re Stelluti , 94 F.3d 84 (2d Cir

. 199 6)(benchtrial on dischargeability); In re Stanley , 66 F.3d 664 (4t h Cir. 1 995)(bankruptcy court hearing on whether actions leading to stat e court judgment were willful and malicious under § 523(a)(6)); In r e Thirtyacre , 36 F.3d 697 (7th Cir. 1994)(evidentiary hearing to determine if actions were willf ul and malicious); In re Conte , 33 F.3d 303 (3d Cir. 1994)(remand for hearing on whether actions unde rlying state court verdict were willful and mali cious under § 523(a)(6)); In re Pasek , 983 F.2d 1524 (10th Cir. 1993)(bankruptcy court hearing on wil lful and malicious); In re Franklin , 615 F.2d 90 9, 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 th e bankruptcy court or t he admissibility of the evidence on which it relied. They view the question for this court to be whet her the facts found by the bankruptcy court indicate that the injury causedby Dr. Geiger was willful and mal icious and whether the judgments assessed against him for tha t injury is therefore dischargeable. The factual findings of the bankruptcy court are reviewed for clear error, and its lega l conclusions are reviewed de novo. In re Cent. Ark. Broad. Co. , 68 F.3d 213, 214 (8th Cir. 1995)(pe r curia m). I believe a careful review shows that the bankruptcy court’ s findings a re not clearly erroneous and that they are supported in th e record. The statutory provision controlling the question of discharge i n this case, 11 U.S.C. § 523(a)(6), bars discharge in b ankruptcy of any debt “for wi llful and malicious injury by the debtor. . . .” If the intent o f 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. Ar kansas AFL-CIO , 11 F.3d at 1140.

The court finds it unnecessary to decide the meaning of “malicious” because o f its treatment of “willful.” The statute does not defin e “willful,” but when Congress uses a term of art, that term is accorded its established meaning. McDermott Int’l, Inc. v. W ilander , 498 U.S. 337, 342 (1991). According to Prosser and Keeton, “[t]he usual meaning assigned to ‘wi llful’ . . . . is that the actor has intentionally done an act of a n unreasonable character in disregard of a known o r obvious risk that was so great as to make it highly probable that harm wo uld 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 acc idental. 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 Sup reme Court has had only one occasion to discuss the meanin g of willf ul and malicious in the statutory section on exceptions t o discharge and that was in Tinker v. Colwell , 193 U.S. 473 (1904). I n Tinker , the Court interpreted “willful and malicious” in this way:

a wilful disregard of what one knows to be his duty, an ac t which is against good morals, and wrongful in and of

### -18- itsel f, and which necessarily causes injury and is don e 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 subs equent 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 o f associa ted committee reports make brief reference to the meaning of § 523(a) (6). See S. Rep. No. 95-989, at 79 (1978), reprinted in , 197 8 U.S.C.C.A.N. 5787, 5865, and H.R. Rep. No. 95-595, at 365 (1977), reprinte d in 1978 U.S.C.C.A.N. 5963, 6320-21. The reports comment:

“[W]illful” means deliberate or intentional. To the exten t that Tinker v. Colwell (citation omitted) held that a [looser (House version); less strict (Senate version)] standard i s intende d, and to the extent that other cases have relied o n Tinker to apply a “reckless disregard” standard, they ar e overruled.

Id. This commentary reveals several things, but also raises additiona l questions. It indicates that “willful means deliberate or intentional” an d that § 523(a)(6) call s 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


### Whil e this legislative history excludes recklessness [as a def inition of “willful”], it does not state exactly what i s required. The bankruptcy courts that have decided this matt er have b een divided as to whether the statute requires a n 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 a dopted today b y the court -- that Congress intended “willful” to incorporat e subjective specific i ntent to injure and to restrict the application of § 523(a)(6) to intentional torts. In reaching its conclusion, the cour t relies on the definition of intent found in the Restatement (Second) o f 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 subjectiv e belief that injury is substantially certain to o ccur, but comment b notes:

Intent is not . . . limited to the consequences which ar e desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and stil l goes ah ead, he is treated by the law as if he had in fac t desired to produce the result.

As Judge Bec ker points out in In re Conte , even if one accepts th e Restatement definition as controlling, actions which in an objective sense
are sub stantially certain to cause harm can be considered willful an d malicious. 33 F.3d at 307-08.

### In Pierce a less restrictive and “naturally co nveyed” meaning 4 

### wa s adopted rather than one directed by committee comment s determined not to be an author itative expression of the meaning of a phrase. Id. at 565-68.

Even when the acts of the debtor could be characterized a s 5 

### intent ional torts, other circuits have not required that a deb t res ult from an intentional tort judgement in order to preven t discharge. See, e.g. , In re Stelluti , 94 F.3d at 88; In r e Stanley , 66 F.3d at 667-68.
The court is not clear about what its requirement of a n intentional tort means. If the intent were to restrict § 52 3(a)(6) to debts resulting from a judgment for an intentional tort, i t would add an unprecedented substantive and procedural limita tion to thi s section by requiring parties to obtain a judgment befor e ini tiating an adversary proceeding to prevent discharge. If, o n the o ther hand, the court only means to restrict § 523(a)(6) t o con duct that can be characterized as intentional torts, it i s 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. Se e 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 ) identic al to the language interpreted by the Supreme Court in Tinker

. Congress could have worded the section to require specific intent to injur e
or an intentional tort if that was its intent, but it did not. Th e le gislative history also does not do either; it does not mentio n intentional torts or say what is meant by “deliberate or intentional. ” Commen ts in committee reports do not necessarily control meaning, see , e.g. , Pierce v. Underwood , 487 U.S. 5 52, 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. T he variety of formulations which have resulted grow out of the lack of clarity in the committe e comments.

No other circuit interprets the statute or the legislative histor y to req uire proof of a subjective intent to injure or proof of a n intentional tort. The court describes its understanding of 5

### -21-

the statute as the “natural” meaning, with very little reference to th e
reason ing and analysis of the circuits which have reached differen t 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 on e 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 ac t could be predicted to produce the injury suffere d by the creditor, but the prec ise wording of the standard varies. The Sixth Circuit construe s willful to apply to an act done intentionally which necessarily produces harm, and malicious to mean wrongful, without just cause or excuse, o r 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
. deni ed , 484 U.S. 853 (1987)). Similarly, the Ninth Circuit, readin g willfu l and malicious together, requires an act done intentionally tha t necessarilyproduces 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 c ertain to result in injury or where the debtor desired to cause injury.” Inre Conte , 33 F.3d at 308. The Eleventh and Fifth Circuits, like the Third, require proof of a n in tentional act with the purpose to cause injury or one which i s substanti allycertain to cause injury. In re Delaney , 97 F.3d 800, 80 2 (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 t he 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 t o direct evidence of specific intent to injure in satisfying the requirement s of § 523(a)(6) . . . ‘the debtor’s actual knowledge or the reasonabl e foreseeability that his conduct will result in i njury to the creditor’ are highlyrelevant.” Id. (citations omitted). In the First Circuit, “th e term‘willful and malicious’ in § 523(a)(6) means an act intentionall y committed, without just cause or excuse, in conscious disregard of one’s duty and t hat necessarily produces an injury.” Printy v. Dean Witte r Rey nolds, Inc. , No. 96-2195, 1997 WL 160122, at *7 (1st Cir. Apr. 10 , 1997)(citation omitted).

The stand ards in the remaining circuits which have ruled on th e question vary, but none requires intent to produce the injury. In th e Second Circuit the standard requires an intentional and deliberate ac t which is wrongful and without just cause or excu se, even in the absence of personal hatred, spite or ill-will. In re Stelluti , 94 F.3d at 88. In th e Four thCircuit a debtor’s injurious act, done deliberately an d intentio nally, in knowing disregard of the rights of the other, i s sufficiently willful and malicious to prevent discharge, even if a debtor bears a creditor no s ubjective ill will or specific intent to injure. In
re Stanle y , 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 discha rge, but it has not developed a definition beyond that. In r e Thirtyacre , 36 F.3d at 701.

### The Tenth Circui t has also addressed the dischargeability of 6 

### a medical malpractice judgment, but that case was applying th e “willf ul and malicious injury” section of the Bankruptcy Act o f 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 malpractic e 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 un necessarily injected the patient’s foot with an unsterile needle , failed to perform timely tests on the resulting infection, subsequentl y ign ored the belated test results, and failed to hospitalize the patien t when h ospitalization was necessary. The court, citing the leadin g bankru ptcytreatise, employed the standard of “a wrongful act don e intentionally, which necessarily produces harm and is without just cause or excuse” and conclu ded that it was met by the facts. Perkins , 817 F.2d at 394 (citing 3 Collier on Bankruptcy523-111 (15th ed. 1986)).

Dr. Ge iger’s debt should similarly not be discharged. It is no t necessary in this cas e to consider whether the Perkins standard or one of the other circuit definitions of willful and mal icious is most appropriate in light of the legislative history and policy because even under In r e Long the debt is not subject to discharge.

Until tod ay this court’s construction of the statute, although more restrictive than some, was generally within the range of interpretations found in other circui ts. Many of our previous cases use a standard for § 523(a)(6) which was articulated in In re Long , 7 74 F.2d at 881. See In re Waugh , 95 F.3d 706, 7 11 (8th Cir. 1996); In re Miera , 926 F.2d at 743-44. In re Long concluded “willful” meant conduct which was “headstrong an d knowing,” and “malicious” meant “targeted at the creditor”, at least in th e 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 (8t h 7 

### Cir. 1986), which held that aninjury caused by a drunk driver was not an intentional injury and therefore the debt was dischar geable. Cassidy considered the legislative history connected with th e en actment of the bankruptcy code and determined that “Congres s intended to bar the discharge of intentionally inflicted inj uries,” id. at 344, but it did not consider by what standard such inten t would need to be shown and it did not have the benefit of the many other circuit discussions which have issued since 1986.
Su bsequent to the events giving rise to Cassidy , Congres s amended the statute to bar discharge of debts arising from drun k 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 ci tes In re Long in support of its conclusion granting discharge, it actually enunciates a significantly more restrictiv e standard. 7 Dr. Geige r’s debt should not be discharged under In re Long because his ad mitted administration of substandard care shows an almost certai n likelihood of harm resulting from headstrong and knowing acts. Th e bankru ptcycourt found that Mrs. Kawaauhau reported to Dr. Geige r complaint s of fever and a swollen foot which was oozing pus. Afte r
rece iving test results that changed his initial diagnosis fro m thrombophlebitis to one of infection, Dr. Geiger knew the most effective treatm ent was intravenous penicillin, and yet he prescribed ora l penicill in. He then traveled away and left his patient in the care o f other doctors who swi tched Mrs. Kawaauhau to intramuscular penicillin and Moxam and authorized a transfer to a specialist. When he returned, Dr

. Geige r noted that Mrs. Kawaauhau appeared to be doing better after hi s 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 kne whis care was substandard, and the uncontested expert testimony wa s 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 thi s section. Section 523(a) makes it clear that Congress did not intend all debts to be forgiven, notwithstanding its general policy of allowing a de btor a “fresh start.” See Miera , 926 F.2d at 745. It intended t o 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 on e purpose of the 1978 a mendments was to provide a more effective remedy for the “unfortunate cons umer debtor.” H.R. Rep. No. 95-595, at 4, reprinted in 1978 U.S.C.C.A.N. at 5966. Examples given of “unfortunate consume r debtors” include fami lies 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 repor t should not be regard as exhaustive, Dr. Geiger c an 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 c ommitted malpractice, but he did not carry malpractice insurance

. He had no other debts than the malpractice judgm ent and filed his petition for bankruptcy to avoid payment of that judgment. The unfortunate consume r in this case could easily be seen to be on the opposite side from th e debtor.
By enacting the exceptions to discha rge, Congress has specified that some debtors may disentitle themselves to relief,

### T hree of these also have an alternative standard similar t o 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 defin ition 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 som e plainly malevolent utterance expressing his inte nt to injure his creditor” or to express the bel ief that injury was substantially certain to follow. In re Con te , 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 credit or 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 cour t has greatly expanded the meaning and significance of th e fewwords in the legislative history and has established a new standar d that differs from the practice in the nine other circuits which hav e examined the section. Seven circuits utilize a definition which includes

an in tentional act substantially certain to lead to injury or one tha t would necessarily lead to it. Two circuits use what might b e 8 characterized as a knowing disregard standard, a nd one has ruled only that the statute does not require specific intent. To the extent unifor m interpretation of the bankruptcy code is seen as a policy goal, the court today doe s nothing to further it. See e.g. , Perkins , 817 F.2d at 39 5 (Engel J. concurring).
There is no reason to create a special shield for medical malpr actice judgments without a showing that Congress intend ed 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. Th e 9 

### court’s suggestion that a diff erent result in this case would lead to an interpretation of § 523( a)(6) that would cover even a breach of c ontract has no support in the record. Neither does th e statement at oral argument by counsel for Dr. Geiger that failure to discharge his debt would lead to higher malpractice insuranc e rates.
An act that will necessarily lead to harm is the equivalent

10 

### of one substantially certain to do so because “all effects ar e probablistic” and it cannot be predicted that a particular result is certain or necessary. In re Conte , 33 F.3d at 308 n.2.
U nlike the bankruptcy judge who was the trier of fact, th e 11 

### court believes that Dr. Halfor d’s expert testimony only shows that Dr. Ge iger’s treatment resulted in the worsening of Mrs

. Kawaau hau’s infection, not that it necessarily led to any othe r injury to her. It bases this distinction on its suspicion t hat the course of an infection is notoriously difficult to predict. I n contra st, the bankruptcy court found that Dr. Geiger’s treatmen t led to the worsening of Mrs. Kawaauhau’s condition and the e ventual amputation of her leg. Even if there are two reasonabl e interpretations of the evidence, this court is required to d efer to the bankruptcy court’s findings absent clear error. In re L eMaire , 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 debt s could not be discharged. Dischargeability depends on the facts of th e 9 individual case and whether the proof rises above reckless disregard of th e rights of the creditor, whether proven by subjective intent to injure or by objective probabil ity 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 tha n reckless, specifically the knowing administratio n of substandard care that
was s ubstantially certain to cause injury. Absent “a very obvious an d exceptional showing of error,” this court is not free to reevaluate th e 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 th e judgment denying the discharge of his debt to the Kawaauhaus.

A true copy.

Attest:

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