with whom
Chief Judge BAZELON joins, concurring :Appellant alleges that he, a paying patient, was injured by the negligent performance upon him of a discography operation by D.C. General Hospital. His suit has been dismissed on the pleadings in reliance on this court’s Calomeris de*485cisión,1 which held that the District of Columbia government operates the hospital as a “governmental” rather than a “proprietary” function, and hence is immune from liability for its negligence. I agree with Judge McGowan’s excellent opinion holding that our Elgin decision 2 requires that Calomeris be overruled and that appellant here be allowed to go to trial. I suggest further that Elgin is but a way station on the road to complete rejection of the doctrine of sovereign immunity.
I
At the time Calomeris was decided, a substantial line of cases had established the general proposition that the District of Columbia, like other municipalities, was liable for torts committed in the exercise of its “proprietary,” but not in the exercise of its “governmental,” functions.3 In bare outline, the “governmental-proprietary” rule attempts to distinguish between municipal activities which are inherently public in nature, and those which merely supplant or parallel the workings of the private sector. The rule makes a “vertical” classification of activities, in the sense that broad spheres of official concern — such as education, police and fire protection, hospitals and other health activities, garbage collection, maintenance of streets and sidewalks, sewage, and provision of water, electricity and transportation— are each labeled either “governmental” or “proprietary.” Once a service is classified as “governmental,” the city is immune from liability for torts committed on any level in the provision of the service.
The distinction between “governmental” and “proprietary” functions of government for purposes of tort immunity has been almost universally condemned. In the words of Harper and James: “No satisfactory test has been devised *486for distinguishing governmental from proprietary functions.” 4 And Professor Davis has argued: “The [proprietary-governmental] distinction is probably one of the most unsatisfactory known to the law * * *.”5 The Supreme Court has referred to the “ ‘non-governmental’ — ‘governmental’ quagmire that has long plagued the law of municipal corporations,” and has condemned the distinction as “inherently unsound.” 6
There is on the face of it little logic in the “governmental-proprietary” distinction. As Harper and James note, two criteria are most often put forward as marking the boundary between the two concepts.7 The first is whether a service is performed for the public good or for the profit of the municipality — a criterion which usually reduces to an inquiry whether the government attempts to cover the costs of the service by levying a charge for it.8 The criterion is unsatisfying. It is not apparent why the fact that a government pays for a service out of general tax revenues, rather than out of a charge (or tax) falling upon those directly using the service, should insulate the government from compensating the victims of its tortious conduct in providing the service.
The second criterion advanced is whether the service provided is “traditionally” governmental.9 Since all the functions performed by municipalities could be, and at one time or another have been, left to the private sector,10 this means no more than that cities are more likely to be held immune from paying for their torts in areas in which they have long been active — like police and fire protection — than in areas of more recent public concern. The rationale behind such a “grandfather clause” approach remains a mystery.11
Dissatisfaction with the law of municipal immunity does not rest solely on the illogic of the distinctions made in the area. It stems further from discontent with the whole concept of a broad sovereign immunity in tort, whether for local, state or national governments. New doctrines in the law have sustained such voluminous, searching and nearly unanimous attack as the principle that governments should not respond in dam*487ages foi’ their torts.12 The principle has been examined and found without basis in history properly interpreted, in political theory, or in sound public policy.
The notion that governmental immunity in tort properly derives from the English common law principle that “the King can do no wrong” has been shown to rest on an erroneous reading of history.13 The notion that public funds are not collected for the purpose of redressing official wrongdoing, and hence cannot be expended for that purpose, rests on the same circular and specious logic which has been rejected by the courts in the area of charitable immunity.14 And finally the bald policy conclusion that “it. is better that an individual should sustain an injury than that the public should suffer an inconvenience” 15 runs counter to both the traditional tort principle that vis-a-vis the innocent victim the wrongdoer should pay, and modern tort concepts of risk distribution and cost allocation.16
When in the course of performing their functions governments lawfully acquire goods and services, they are expected to pay the costs. No one has ever given an adequate argument why the same governments should not a fortiori pay the costs when in performing the same functions they wrongfully injure innocent people.
The doctrines of sovereign and municipal immunity were made by judges as part of the common law.17 Legislatures have generally not imposed immunity; rather they have more often limited it in piecemeal fashion where it was felt to be particularly egregious or impolitic.18 However, it is only since 1955 — the date of Calomeris — that courts have stopped bemoaning the bad doctrines which they created in the first place,19 and have begun the serious task *488of reforming them. In the last decade, the highest courts of at least 12 states have broadly abrogated the immunity in tort of the cities or the states or both.20 In fewer states have the traditional immunities been explicitly reaffirmed.21
In this jurisdiction, the movement against sovereign — here municipal — immunity found expression in the Elgin case.22 In Elgin, plaintiff alleged personal injury from a fall caused by negligent construction or maintenance of the playground at his school. The court recognized that operation of schools had been regarded as a “governmental” function in this as in other jurisdictions.23 It did not dispute that characterization, but rather reformulated the distinction between areas in which the government is immune in tort and areas in which it may be liable.
Drawing on two recent cases,24 the court discerned a shift from a “governmental-proprietary” to a “discretionary-ministerial” distinction.25 Where the previous distinction had rested on a vertical classification of broad areas of activity — education, sanitation, care of the sick, etc. — as “governmental” or “proprietary,” the new distinction was a horizontal one which cut across these broad areas, and looked with more particularity at the act or omission complained of as negligent. Where the injury proximately resulted from a deliberate choice in the formulation of official policy, characterized by a high “degree of discretion and judgment involved in the particular governmental act,” 26 immunity would remain. To inquire into such decisions in a tort suit might “jeopardiz[e] the quality and efficiency of government itself,” 27 and endanger the creative exercise of political discretion and judgment through “the inhibiting influence of potential legal liability asserted with the advantage of hindsight.” 28 On the other hand, where the injury was inflicted by negligent official acts or omissions other than in the formulation of public policy — “ministerial acts” — liability could be asserted. Thus in “the execu*489tion of policy as distinct from its formulation,” 29 the District of Columbia could be held to the duty of reasonable care which the courts had long enforced against individuals and private associations.30
In my view, the principle of Elgin requires that appellant in this case be allowed to proceed to trial. He has alleged that appellee negligently performed upon him a discography operation, resulting in serious personal injuries. Thus his is a commonplace suit for a single act of medical malpractice. He does not require us to review policy decisions taken by responsible officials of the District of Columbia in the area of health. Those policies, which are not in question here, include accepting patients like appellant at the hospital, and performing operations of this type upon them. That policy was applied in this case. Appellant alleges that in the course of carrying it out the hospital medical staff failed to meet the standards of due care imposed by local tort law upon the medical profession. Thus the complaint here is of a fault in execution, of a kind which our courts evaluate many times a year. Within the meaning of Elgin, such faults are ministerial, and hence subject to redress in tort.
This is not to say that the performance of an operation does not involve judgment and discretion. The point is that medical, not governmental, judgment and discretion are involved. The common law of malpractice, as normally applied to private doctors and hospitals, already grants the leeway properly left for expert judgment in the relatively stringent requirements it imposes upon plaintiffs in medical negligence suits. No further leeway is required for the publicly employed doctor or the public hospital than for their private counterparts.
II
Although I am convinced that Elgin stands as a four-square precedent requiring reversal in the case before us, I should add that in my view it marks the beginning rather than the end of the reform of our law of municipal immunity. The court in Elgin felt that recent panel decisions of this court constrained it from considering whether the tort immunity of the District of Columbia should be entirely abrogated.31 Thus the court felt required to preserve a category of “governmental” or “discretionary” acts which were to be held immune from damages for a breach of the duty of reasonable care.
Concurring in Elgin, Chief Judge Bazelon noted that the decision took “a useful step toward modernizing the archaic doctrine of sovereign immunity.”32 He went on to point out that “[i]n retaining a rigid classification of eases, however, it harbors seeds of the same arbitrariness which presently characterizes that doctrine.”33 He would have preferred that the degree of discretion left to officials in the performance of their duties be merely one factor to be weighed in the calculus of “reasonable care.”
I believe that Chief Judge Bazelon’s more flexible rule is the proper one. I would entirely abolish any special governmental immunity in tort. There would then remain the determination of which governmental actions causing private injury were tortious. It is clear that not all of them can be. Almost every act of government involves injury to someone, and yet “it is not a tort for *490government to govern.” 34 It is in drawing the line between tortious and nontortious injuries from official action that courts can take account of the important factors referred to by the court in Elgin.
The distinction between the two views is more than a semantic one. The Elgin position could easily rigidify into a rule that any time an official or an agency adopts a “plan,” injuries arising from the plan itself, as distinguished from its negligent execution, cannot be compensated in tort.35 I would not want to take the flat position that the government is immune from paying for the consequences of the adoption of every policy, however neglectful that policy might be of the bodily security or the property of those affected by it.
In any case, it seems to me clear that whether under the “discretionary-ministerial” principle made the law of this jurisdiction in Elgin, or under a regime recognizing no governmental immunity in tort, appellant here should be allowed his day in court against D.C. General Hospital.
. Calomeris v. District of Columbia, 96 U.S.App.D.C. 364, 226 F.2d 266 (1955).
. Elgin v. District of Columbia, 119 U.S. App.D.C. 116, 337 F.2d 152 (1964).
. Roth v. District of Columbia, 16 App. D.C. 323 (1900) (dictum); Brown v. District of Columbia, 29 App.D.C. 273, 25 L.R.A.,N.S., 98 (1907); District of Columbia v. Tyrell, 41 App.D.C. 463 (1914); District of Columbia v. May, 63 App.D.C. 10, 68 F.2d 755 (1933); Loube v. District of Columbia, 67 App. D.C. 322, 92 F.2d 473 (1937); Wilson v. District of Columbia, 86 U.S.App.D.C. 28, 179 F.2d 44 (1949).
However, cases in this jurisdiction are by no means unanimous in applying the “governmental-proprietary” distinction. In the first case involving the District’s liability in tort, the Supreme Court found no municipal immunity for negligent construction of a bridge; it distinguished between the “legislative” or “discretionary” powers of the city and its “specific and clearly defined duty.” Weightman v. Corporation of Washington, 66 U.S. (1 Black) 39, 50, 17 L.Ed. 52 (1861). In Barnes v. District of Columbia, 91 U.S. (1 Otto) 540, 23 L.Ed. 440 (1875), the Court found the District liable for negligent maintenance of a street, and stated the general proposition that “a city is responsible for its mere negligence,” without restricting its holding to street maintenance. Id. at 551. In Johnston v. District of Columbia, 118 U.S. 19, 6 S.Ct. 923, 30 L.Ed.2d 75 (1886), the Court restricted municipal immunity to “duties * * * of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion * * Id. at 20-21, 6 S.Ct. at 924. Finally, in District of Columbia v. Caton, 48 App.D.C. 96 (1918), the District was held liable for negligent maintenance of the streets on the general principle that “[i]n selecting and adopting a general plan of public improvement, such, for example, as a sewer system, the municipal corporation exercises judicial discretion, but in carrying out the plan it acts ministerially, and must perform the work in a reasonably safe and skilful manner.” Id. at 104-105.
Further, exceptions have been recognized to the rule of governmental immunity in the case of street maintenance, Smith v. District of Columbia, 89 U.S. App.D.C. 7, 189 F.2d 671 (1951), and in cases where the tort could be classified as a “nuisance,” Roth v. District of Columbia, supra. The “street maintenance” exception effectively isolated the earlier Supreme Court precedents which happened to involve streets and bridges but vilhich stated principles of municipal immunity in general terms.
. 2 F. Harper & F. James, The Law of Torts § 29.6 at 1621 (1956).
. 3 K. C. Davis, Administrative Law Treatise § 25.07 at 460 (1958).
. Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955). Cf. Brush v. Commissioner of Internal Revenue, 300 U.S. 352, 362, 57 S.Ct. 495, 81 L.Ed. 691 (1937). These expressions of discontent with the “proprietary-governmental” distinction would seem to remove whatever precedential constraint might be throught to be placed on our power to abolish it by Harris v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146 (1921), in which the Supreme Court arguably applied the distinction to the District of Columbia. Moreover, the Supreme Court’s contemporary policy of leaving matters of local law to this court for final resolution, see Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm., 393 U.S. 186, 196, 89 S.Ct. 354, 21 L.Ed.2d 334 (1968) (dissenting opinion of Mr. Justice Douglas), and cases therein cited, would seem to relieve Harris of force as a binding precedent.
. 2 F. Harper & F. James, supra Note 4, at 1621-1623.
. Cf. Bolster v. City of Lawrence, 225 Mass. 387, 390, 114 N.E. 722, 724, L.R.A. 1917B, 1285 (1917).
. Cf. Hill v. City of Boston, 122 Mass. 344, 369 (1877).
. See Seasongood, Municipal Corporations : Objections to the Governmental or Proprietary Test, 22 Va.L.Rev. 910, 914-915 (1936) : “The London police force was not established until 1829. It is not a hundred years since fire companies were generally private and voluntary.”
. In addition to the works of Davis, Harper & James and Seasongood already noted, representative among the voluminous criticism of the governmental-proprietary distinction are Borchard, Government Liability in Tort, 34 Yale L.J. 129, 134-143 (1924), and Fuller & Casner, Municipal Tort Liability in Operation, 54 Harv.L.Rev. 437, 443 (1941).
. See, e. g., Borchard, Government Liability in Tort, 34 Yale L.J. 1, 129, 229 (1924r-1925); Borehard, Governmental Responsibility in Tort, VI, 36 Yale L.J. I, 747 (V), 1030 (VI) (1926-1927); 3 K. O. Davis, supra Note 5, § 25.01; 2 F. Harper & F. James, supra Note 4. eh. 29 passim.
. See, e. g., Borehard, supra Note 12, 36 Yale L.J. at 1, 17-41.
. See, e. g., 2 F. Harper & F. James, supra Note 4, at 1611-1612; cf. President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810 (1942) (Rutledge, J.).
. Russell v. The Men of Devon, 100 Eng. Rep. 359, 362 (1788).
. See 2 F. Harper & F. James, supra Note 4, at 1612; Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961) (Traynor, J. ).
. See generally Borehard, supra Note 12, 36 Yale L.J. 1; cf. Muskopf v. Corning Hospital District, supra Note 16, 11 Cal. Rptr. 89, 359 P.2d at 461. No District of Columbia statute imposes sovereign immunity. In the past courts have argued that in failing to include the District within the terms of the Federal Tort Claims Act, see Douffas v. Johnson, D.D.C., 83 F.Supp. 644 (1949), Congress meant to maintain the immunity of the District. Calomeris v. District of Columbia, supra Note 1, 96 U.S.App.D.C. at 366, 226 F.2d at 268. But no such intent appears from the face of the legislation, and no showing has been made of such an intent in the legislative history. The more plausible interpretation is that, in enacting the FTCA, Congress was simply not concerned with the local law of the District.
. The District of Columbia has statutorily waived immunity for automobile torts committed by its employees within the scope of their employment. 1 D.C. Code § 922 (1967). It further provides for settlement of claims against the District arising out of the negligence of District employees, “irrespective of whether such negligence occurred or such acts were done in the performance of a municipal or a governmental function of said District * * 1 D.C.Code § 902(a) (1967). This provision was construed as authorizing suit against the District for the negligence of a police officer in Harbin v. District of Columbia, 119 U.S.App.D.C. 31, 336 F.2d 950 (1964).
. In Calomeris we referred to sovereign immunity as “an obsolescent and dying doctrine,” but left it to the legislature to eliminate or reform it. 96 U.S.App.D.C. at 366, 226 F.2d at 268.
. Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193 (1957); Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469 (1959); McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820, 88 A.L.R.2d 1313 (1960); Muskopf v. Corning Hospital District, supra Note 16; Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961); Holytz v. City of Milwaukee, 17 Wis.2d 26, 115, N.W.2d 618 (1962); Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962); Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963); Haney v. City of Lexington, Ky., 386 S.W.2d 738, 10 A.L.R.3d 1362 (1964); Kelso v. City of Tacoma, 63 Wash.2d 913, 390 P.2d 2 (1964) (abrogation partly based on statute).
. See, e. g., Nelson v. Maine Turnpike Authority, 157 Me. 174, 184-186, 170 A.2d 687, 693 (1961); State of Utah By & Through Road Commission v. Parker, 13 Utah 2d 65, 368 P.2d 585 (1962); Clark v. Ruidoso-Hondo Valley Hospital, 72 N.M. 9, 380 P.2d 168 (1963).
The cases on both sides are collected and summarized in 3 K. C. Davis, supra Note 5, § 25.04 (1965 Pocket Part).
. Supra Note 2.
. District of Columbia v. Tyrrell, supra Note 3.
. Booth v. District of Columbia, 100 U.S. App.D.C. 32, 241 F.2d 437 (1956) (District not liable for general failure to provide adequate sewer system, but may be liable for inadequate construction of sewer); Urow v. District of Columbia, 114 U.S.App.D.C. 350, 316 F.2d 351, cert. denied, 375 U.S. 826, 84 S.Ct. 69, 11 L.Ed.2d 59 (1963) (city not liable for failure to provide traffic light because decision “essentially legislative”).
. Elgin v. District of Columbia, supra Note 2, 119 U.S.App.D.C. at 118, 337 F.2d at 154.
. 119 U.S.App.D.C. at 119, 337 F.2d at 155.
. 119 U.S.App.D.C. at 118, 337 F.2d at 154.
. 119 U.S.App.D.C. at 119, 337 F.2d at 155.
. 119 U.S.App.D.C. at 118-119, 337 F.2d at 154-155.
. The substantial break which Elgin represented with the old “governmental-proprietary” distinction led Professor Davis to list it among those decisions abolishing municipal immunity. 3 K. C. Davis, supra Note 5, § 25.01 (1965 Pocket Part).
. 119 U.S.App.D.C. at 117 n. 2, 337 F.2d at 153 n. 2.
. 119 U.S.App.D.C. at 121, 337 F.2d at 157.
. Ibid.
. Dalehite v. United States, 346 U.S. 15, 57, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) (dissenting opinion of Mr. Justice Jackson).
. For a discussion of the difference between a negligent plan and negligent execution of the plan, concluding that even where the negligence is part of the plan liability can result, see District of Columbia v. Caton, supra Note 3, 48 App.D.C. at 104-107. For a similar distinction reaching an opposite result, see Urow v. District of Columbia, supra Note 24, and my dissenting opinion in that case, 114 U.S.App.D.C. at 352, 316 F.2d at 353.