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1994), and the district court affirmed that judgment in an unpublished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




                                        -2-
       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




                                      -3-
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




                                               -4-
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




                                    -5-
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.)




                                    -6-
      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




                                           -7-
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.




                                     -8-
     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




                                      -9-
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,




                                    -10-
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




                                        -11-
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




                                          -12-
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.




                                    -13-
     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.1     The
court also relied on the expert




     1
      Dr. Geiger testified in the bankruptcy court that his
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.

                                    -14-
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.2 See, e.g., In re Zelis, 66
F.3d 205, 208 (9th Cir. 1995); In re Walker, 48 F.3d 1161, 1163 (11th Cir.
1995).




     2
      Some motions seek to bar by collateral estoppel the
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).

                                    -15-
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




                                     -16-
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




                                     -17-
      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




                                     -18-
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.




     3
      As the Third Circuit has noted:

     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-
       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),4 but subsequent to
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
                    5
intentional tort.       The court describes its understanding of



       4
      In Pierce a less restrictive and “naturally conveyed” meaning
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.

       5
      Even when the acts of the debtor could be characterized as
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-
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.




                                       -21-
     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.




                                       -22-
       The only other circuit to rule on the dischargeability of a medical
malpractice debt under § 523(a)(6)6 declined to discharge the physician’s
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.




       6
      The Tenth Circuit has also addressed the dischargeability of
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-
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




     7
      The court also cites Cassidy v. Minihan, 794 F.2d 340 (8th
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-
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,




                                     -25-
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.8      Two    circuits   use   what   might   be
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




        8
      Three of these also have an alternative standard similar to
the court’s requirement of purpose to cause injury, but they do not
limit the creditor to this option alone.

                                             -26-
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.9      Dischargeability depends on the facts of the
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).11            Since Dr.
Geiger inflicted a willful



     9
      Several other red herrings have also been raised.        The
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.
     10
      An act that will necessarily lead to harm is the equivalent
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.
     11
       Unlike the bankruptcy judge who was the trier of fact, the
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-
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.




                                 -28-
