States, 520 F. Supp. 1200 (S.D.N.Y. 1981), I decline to draw such a distinction in this case and, instead, adopt the more persuasive reasoning of the Fourth Circuit in Talbert.
Here, the gravamen of plaintiff's complaint is that defendant disclosed inaccurate information to third parties. The damages plaintiff seeks appear to result directly from communication of this allegedly false information and not from defendant's mere maintenance of inaccurate information.
Therefore, I find that plaintiff's claim is essentially a defamation claim and, as such, is barred under the libel and slander exception to the FTCA. Accordingly, plaintiff will not be granted leave to amend the complaint to allege a FTCA claim on behalf of Baker.
2. Second Amended Cause of Action
As a second amended cause of action, Baker maintains that defendant, in disclosing and falsifying his patient and employment records, committed malpractice in violation of 38 U.S.C. § 7316.
Section 7316(a)(1) provides a remedy "for damages for personal injury, including death, allegedly arising from malpractice or negligence of a medical care employee of the [Veterans'] Administration in furnishing medical care or treatment."
However, "not every tort that a doctor commits with respect to a patient is medical malpractice. In the typical malpractice case a doctor negligently makes a mistaken diagnosis, administers the wrong treatment to his patient or fails to administer the right treatment because of that mistake, and thereby injures the patient's physical or mental health." Hoesl v. United States, 451 F. Supp. 1170, 1173 (N.D. Cal. 1978), aff'd, 629 F.2d 586 (9th Cir. 1980).
Defendant's wrongful actions of disclosing plaintiff's falsified medical and personnel records to third parties "do not constitute medical malpractice in any usual meaning of the term." Id. Lyman's conduct simply did not involve the furnishing of medical care or treatment to Baker.
Accordingly, plaintiffs will not be permitted to amend their complaint to allege a medical malpractice cause of action under 38 U.S.C. § 7316.
3. Third Amended Cause of Action
DeFranco maintains that defendant, in violation of the Privacy Act, altered and falsified his VAMC patient and employment records and subjected them to unlawful disclosure. When DeFranco complained about these unlawful disclosures, Lyman and other VAMC employees allegedly harassed him.
Defendant maintains that this Privacy Act claim is barred by the two-year statute of limitations prescribed in 5 U.S.C. § 552a(g)(5).
For the same reasons discussed in connection with Baker's Privacy Act claim, I will grant plaintiffs leave to amend their complaint to assert a Privacy Act claim on behalf of DeFranco. As with Baker, discovery will be necessary to determine if, in fact, subsequent, timely violations of the Privacy Act occurred.
4. Fourth Amended Cause of Action
The fourth amended cause of action is identical to the cause of action under the FTCA that was the subject of defendant's motion for judgment on the pleadings. As discussed, supra, this claim must be dismissed.
For the foregoing reasons, defendant's motion for judgment on the pleadings is granted as to DeFranco's cause of action in the original complaint. Further, plaintiffs' motion for leave to file an amended complaint is granted in part and denied in part.
Plaintiffs will be permitted to file an amended complaint within twenty (20) days of the entry of this decision and order, alleging claims for violations of the Privacy Act. Plaintiffs will not, however, be permitted to assert claims under the FTCA for alleged violations of 38 U.S.C. § 7332 or for medical malpractice.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
October 22, 1996.