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CLAIMS FOR NEGLIGENT MEDICAL CARE PROVIDED
MEMBERS OF THE ARMED WRCRS~.M~..
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1 JUL 1 61992
A __
HE RING RUTGERS LAW LIBRAF~Y
BEFORE THE
ST1BCOM1~1TTTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SECOND CONGRESS
FIRST SESSION
ON
H.R. 3407
CLAIMS FOR NEGLIGENT MEDICAL CARE PROVIDED
MEMBERS OF THE ARMED FORCES
OCTOBER 2, 1991
Serial No. 41
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
51-768 ±s WASHINGTON : 1992
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-038554-7
95 &~` i~7
4*~ ~/uoz/L4(
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COMMITTEE ON THE JUDICIARY
DON EDWARDS, California
JOHN CONYERS, JR., Michigan
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
EDWARD F. FEIGHAN, Ohio
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
HARLEY 0. STAGGERS, JR., West Virginia
JOHN BRYANT, Texas
MEL LEVINE, California
GEORGE E. SANGMEISTER, Illinois
CRAIG A. WASHINGTON, Texas
PETER HOAGLAND, Nebraska
MICHAEL J. KOPETSKI, Oregon
JACK REED, Rhode Island
HAMILTON FISH, JR., New York
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois
F. JAMES SENSENBRENNER, JR.,
Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
D. FRENCH SLAUGHTER, JR., Virginia
LAMAR S. SMITH, Texas
CRAIG T. JAMES, Florida
TOM CAMPBELL, California
STEVEN SCHIFF, New Mexico
JIM RAMSTAD, Minnesota
JACK BROOKS, Texas, Chairman
JONATHAN R. YAROWSKY, General Counsel
ROBERT H. BRINK, Deputy General Counsel
AlAN F. COFFEY, JR., Minority Chief Counsel
SUBCOMMITTEE ON ADMINISTRATIVE LAW AND GOVERMENTAL RELATIONS
BARNEY FRANK, Massachusetts, Chairman
DON EDWARDS, California GEORGE W. GEKAS, Pennsylvania
ROMANO L MAZZOLI, Kentucky STEVEN SCHIFF, New Mexico
HARLEY 0. STAGGERS, Jr., West Virginia JIM RAMSTAD, Minnesota
JACK REED, Rhode Island
PAUL J. DROLET, Counsel
DAVID A. NAIMON, Assistant Counsel
ROY A. DYE, Legislative Specialist
RAYMOND V. SMIETANKA, Minority Counsel
(II)
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CONTENTS
HEARING DATE
Page
October 2, 1991. 1
TEXT OF BILL
H.R. 3407 2
WITNESSES
Brown, Hon. George E., Jr., a Representative in Congress from the State of
California 5
Davis, Wayne M., New York State Bar Association 139
Gerson, Stuart M., Assistant Attorney General, Civil Division, U.S. Depart-
ment of Justice 40
Guimond, Robert W., Ph.D., J.D., professor of medical physiology, University
of Massachusetts, Boston, MA 127
Harris, Willie, Huntington Beach, CA 6
O'Donnell, Terrence, General Counsel, U.S. Department of Defense, accompa-
nied by Lt. Gen. Robert M. Alexander, Deputy Assistant Secretary of
Defense for Military Manpower and Personnel Policy, and Rear Adm.
Edward D. Martin, U.S. Public Health Service, and Deputy Assistant
Secretary of Defense for Professional Affairs and Quality Assurance 59
Putnam, Russell H., Jr., Tyler, Cassell & Jackson, Columbia, SC 91
Rose, Hon. Charlie, a Representative in Congress from the State of North
Carolina 13
Wall, J. Paulette, Greensboro, NC 15
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Connors, Joseph E., president, Concerned Americans for Military
Improvements: Prepared statement 23
Davis, Wayne M., New York State Bar Association:
Excerpts from the New York State Bar Association, Committee on
Federal Legislation, Report on the Feres Doctrine, March 1991 145
Prepared statement 141
Friend, Peggy D., president, Concerned Americans for Military Improvements
of Virginia: Prepared statement 30
Gaffney, Martin F., chief warrant officer, U.S. Marine Corps., South
Weymouth, MA: Videotaped statement 21
Gerson, Stuart M., Assistant Attorney General, Civil Division, U.S. Depart-
ment of Justice: Prepared statement 42
Guimond, Robert W., Ph.D., J.D., professor of medical physiology, University
of Massachusetts, Boston, MA:
Prepared statement 131
Remarks from the Congressional Record of March 1, 1988 138
Harris, Willie, Huntington Beach, CA: Prepared statement 8
O'Donnell, Terrence, General Counsel, U.S. Department of Defense: Prepared
statement 63
(III)
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Iv
Page
Putnam, Russell H., Jr., Tyler, Cassell & Jackson, Columbia, SC: Prepared
statement 94
Rose, Hon. Charlie, a Representative in Congress from the State of North
Carolina: Prepared statement 14
Wall, J. Paulette, Greensboro, NC: Prepared statement 18
APPENDIX
Statement of Sgt. Maj. Michael F. Ouellette, U.S.A., retired, deputy director
of legislative affairs, Noncommissioned Officers Association 153
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CLAIMS FOR NEGLIGENT MEDICAL CARE
PROVIDED MEMBERS OF THE ARMED FORCES
WEDNESDAY, OCTOBER 2, 1991
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON ADMINISTRATIVE LAW
AND GOVERNMENTAL RELATIONS,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:05 a.m., in room
2226, Rayburn House Office Building, Hon. Barney Frank
(chairman of the subcommittee) presiding.
Present: Representatives Barney Frank, Don Edwards, George
W. Gekas, Steven Schiff, and Jim Ramstad.
Also present: David A. Naimon, assistant counsel; Cynthia
Blackston, chief clerk; and Raymond V. Smietanka, minority
counsel.
Mr. FRANK. The hearing of the subcommittee on Administrative
Law and Governmental Relations on military medical malpractice
will come to order.
[The bill, H.R. 8407, follows:]
(1)
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2
102D CONGRESS
1ST SESSION * *
To amend chapter 171 of title 28, United States Code, to allow claims
against the United States under that chapter for damages arising from
certain negligent medical care provided members of the Armed Forces.
IN THE HOUSE OF REPRESENTATWES
SEPTEMBER 25, 1991
Mr. FRANK of Massachusetts (for himself, Mr. ST4u~K, Mr. Towxs, Mr. DEL-
LUMS, Mr. ROSE, Mr. M0AKLEY, Mr. DIcKS, Mr. BRowN, Mr. SMITH of
Florida, Mr. EvANs, Mr. HUGHES, Mr. CONYERS, Mr. BERMAN, Mr. ED-
WARDS of California, Mr. BUSTAMANTE, Mr. FEIGHAN, Mr. MATSUI,
Mrs. SCHROEDER, Mr. OwENs of Utah, Mr. OwENs of New York, Mr.
CL~Ay, and Mr. HoysR) introduced the following bill; which was referred
to the Committee on the Judiciary
A BILL
To amend chapter 171 of title 28, United States Code,
to allow claims against the United States under that
chapter for damages arising from certain negligent medi-
cal care provided members of the Armed Forces.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. CLAIMS FOR NEGLIGENT MEDICAL CARE.
4 (a) COGNIZABLE Cr4.~uMs.-Chapter 171 of title 28,
5 United States Code, is amended by adding at the end the
6 following new section:
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3
2
1 "~2681. Certain claims arising out of medical care
2 provided members of the Armed Forces
3 "(a) CLAIMS AUTH0RIzED.-Subject to the provi-
4 sions of this chapter, claims may be brought under this
5 chapter for damages against the United States for per-
6 sonal injury or death of a member of the Armed Forces
7 serving on active duty (as defined in section 101(22) of
8 title 10) or on full-time National Guard duty (as defined
9 in section 101(42) of title 10), under the conditions pre-
10 scribed in this section.
11 "(b) LIMITATION TO MEDICAL CARE IN FIXED FA-
12 CILITIES.-The personal injury or death referred to in
13 subsection (a) must have arisen out of noncombatant mcd-
14 ical or dental care furnished the member of the Armed
15 Forces in a medical facility operated by the Secretary of
16 the military department or any other medical facility oper-
17 ated by the United States..
18 "(c) OFFSET OF OTHER GOVERNMENT BENEFITS BY
19 AMOUNT OF AWARDS OR JUDGMENTS.-If an award or
20 judgment on a claim under this section for personal injury
21 or death of a member of the Armed Forces is paid, then
22 no monetary benefits under title 10, title 37, or chapter
23 11 or 13 of title 38 that are attributable to the personal
24 injury or death from which the claim arose shall be paid
25 to the member or the member's estate, survivors, or bene-
26 ficiaries, for any month beginning after the date on which
`HR 3407 IH
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4
3
1 the award or judgment becomes final, until the aggregate
2 amount of benefits that would be paid but for this sen-
3 tence equals that amount of the award or judgment which
4 the agency making the award, or the court entering the
5 judgment, as the case may be, determines is equal to com-
6 pensatory damages, less any amount of the award or judg-
7 ment paid for attorneys fees or costs incurred in connec-
8 tion with the claim.
9 "(d) DEFINITIONS.-For purposes of this section-
10 "(1) the term `medical facility' means a medical
11 center, hospital, or clinic that is located in a building
12 or structure; and
13 "(2) the term `personal injury' does not include
14 mental or emotional disability unless it is the direct
15 result of a physical injury.".
16 (b) CLERICAL AMENDMENT.-The table of sections
17 for chapter 171 of title 28, United States Code, is amend-
18 ed by adding at the end the following new item:
"2681. Certain claims arising out of medical care provided members of the
Armed Forces.".
19 SEC. 2. EFFECTIVE DATE.
20 Section 2681, of title 28, United States Code, as
21 added by section 1 of this Act, shall apply only with re-
22 spect to personal injuries or deaths occurring on or after
23 the date of the enactment of this Act.
0
*HR 3407 III
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5
Mr. FRANK. We will begin with our colleague, Mr. Brown, and
Mr. Harris. Mr. Brown and Mr. Harris have already been before us
once to talk about the, I think, grave injustice Mr. Harris suffered
from, and we would ask them to come forward now and ask our
colleague, Mr. Brown, to introduce Mr. Harris.
STATEMENT OF HON. GEORGE E. BROWN, JR., A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. BROWN. Thank you very much, Mr. Chairman.
Let me first compliment you and the members of the subcommit-
tee for convening this hearing on the important subject of revising
the law with regard to the rights of military personnel who have
suffered as a result of their service in the military.
As you have indicated, we have been before you before in connec-
tion with legislation specifically related to Mr. Harris' case, but we
feel, and Mr. Harris feels, that this matter is of broad applicability.
It really requires a revision of the Feres doctrine. And Mr. Harris'
case is an outstanding example of the reasons for that.
I will be extremely brief. You will have before you in full and
have had before you the situation with regard to Mr. Harris. He
received disabling injuries as a result of actual malpractice on the
part of military physicians, not as a result of any military need or
anything of that sort but purely for the purpose of enabling Mr.
Harris to continue to play basketball on a championship team for
the Air Force. The treatment that he received would be considered
illegal today. It ruined his life, resulting in the potential loss of
millions of dollars in income to him, and he has no recourse at the
present time. I will not belabor that, but the situation is clear, and
there seems to be no argument about it, and Mr. Harris is his own
best witness in that regard.
The situation is so egregious that he has been the subject of some
rather good PR in the recent days, which makes me worry that he
may be planning a campaign for Congress, and I would much
rather have him fairly compensated for the injuries that he has re-
ceived than to have him running against me for Congress.
So let me merely restate my very strong support for the legisla-
tion, my belief that Mr. Harris is the very best witness to testify as
to the need for that, and urge that you give him every consider-
ation in entertaining his own testimony.
Mr. FRANK. Thank you, Mr. Brown.
Let me just note that this is the second time you have been
before us. Given your chairmanship of ~ full committee, which car-
ries with it a great deal of responsibility and requires a lot of time,
we appreciate your attention to this one particular case.
As we do, let me say at the outset to both you and Mr. Harris,
because it is very clear, that Mr. Harris himself could not benefit if
we were to pass this bill today because it is not retroactive.
Mr. BROWN. Correct.
Mr. FRANK. And his willingness to exert himself on behalf of a
piece of legislation from which he can derive no personal benefit-
the broad bill-but simply because of his desire that no one else
undergo the kind of pain that he underwent is citizenship at its
best.
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6
So, Mr. Harris, I want to express my appreciation for your un-
selfishness as well as acknowledging that Mr. Brown has shown, I
think, a very commendable concern for justice in an individual
case along with his chairmanship.
I was impressed, George, that you thought that he might be run-
ning against you. I'm surprised you think you know what is in
your district, George. I thought out in California none of you knew
who would be running against where, so he may be running
against Edwards before you are through.
[Laughter.]
Mr. BROWN. Well, I would like to point out, Mr. Chairman, that I
am not the first Congressman to express a concern for this case. As
I think you know, in previous sessions of the Congress Mr. Dornan
has introduced legislation with regard to this matter. Obviously, he
was concerned about the injustice involved, and I feel likewise.
I understand the institutional, the historical reasons, but this
body, this Congress, is here to correct injustice and not to be bound
by, shall we say, the precedents that were made in haste or by mis-
taken thinking in the past.
So I do urge you to consider this, and I would like to ask you to
excuse me; I do have some committee business that I do have to
attend to.
Mr. FRANK. Certainly. We thank you, and, Mr. Harris, we will
hear from you now.
Thank you, Mr. Brown.
STATEMENT OF WILLIE HARRIS, HUNTINGTON BEACH, CA
Mr. HARRIS. Thank you, Mr. Frank, for inviting me back.
I know that this bill today will not help me, but if there is any-
thing that I can do for military malpractice vets, I'm willing to
fight for it. I think that we have been abused for too many years.
As a matter of fact, it was 29 years ago today that I had my first
day of basic training.
As a kid growing up, I was a basketball player, and I had no idea
that my own country would do me in and that my own lawmaker
would stand by and see me suffer the way that I have suffered.
There is a right and a wrong in America. Everybody in America
should be able to gain justice, which has evaded me for 20-some
years.
It was this Saturday when CNN did the special about military
malpractice. The Congressman from New Mexico was saying that
he thinks that the disability program is adequate for someone to
gain disability. Well, it took me 7 years after I was out to get what
you call a correction of military records. When the Air Force put
me out in 1967, I had a wife and three kids. They put me out with
$28 a month disability. I am 6 feet 8 inches, 250 pounds; I had six
professional basketball offers. It all went up in smoke because
someone had more ideas of winning a ball game than my health,
and I think that is absolutely wrong.
Not only that, I have been fighting this for 24 years. The only
help we can get is decent people like Mr. Frank who come forward
and try to help us. Like I said, I know that this bill will not help
me, but I will not give in. The military destroyed my knees, but it
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7
didn't destroy my mind, and I will keep on fighting, and I also be-
lieve that someone or somehow that justice will prevail.
In California now, they have a man who is going to go to jail for
brutalizing a dog, and it is terrible that people in America get
more time for brutalizing a dog than they will for someone in the
military butchering GI's, and this is my own idea of what I think
happened, and I know that someone should change the law.
Will you change the law? I do not know. But the only hope we
also have in changing this law is the news media. Everything gets
more coverage than military malpractice vets get. We are not even
second-class citizens, we are third-class citizens. Who cares about
us? We are nobody in your eyesight, but we have families also.
I would also like to state: How many lawmakers of this country
would like what happened to me and other malpractice vets
happen to your own immediate family? How would you think then?
It is always nice as long as the shoe is on somebody else's foot, but
this shoe has been on my foot for 24 years.
I was 24 years old and had everything going for me. Not only
that, I lost a second career. After I found out I couldn't play bas-
ketball, I got into the movie business as a stuntman. There are
stuntmen today who are making over $300,000. I make $1,620 a
month. I was robbed. My whole life was destroyed. My kids lost a
father. Today, my kids are athletes. How would you like your kids
to ask you: "Dad, let's go to Disneyland?" and I tell them-I say,
"Well, I can't walk around." They are too young, they don't under-
stand what is going on with me.
It also has destroyed my family. I am a divorced man now be-
cause of the nightmare I have lived, and I am hoping that someone
can see the value of trying to change the law and help these people
who have been brutalized by their own country.
I saw the President talking about justice and what goes on in
other countries, what went on in Tiananmen Square. Well, what
about our justice? How long do we have to go on before we can gain
justice? I think that we should have justice before other people out-
side of this country should have justice.
Another thing: Out of the population in America, probably only
10 even know about military malpractice. This is where the news
media comes in. If the public would get to know more about us, I
think you would hear more and more about it, and I am quite sure
that there will be a lot more horror stories coming out of this, be-
cause I will keep fighting.
Mr. Frank, I would like to thank you very much for inviting me
here. I appreciate that, even though I had to pay my own way here,
but it is worth it.
Mr. FRANK. I thank you, Mr. Harris, and I thank you, as I said,
for coming here on behalf of other people.
[The prepared statement of Mr. Harris follows:]
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8
2 October 1991
Subcommittee on Administrative Law and Government Relations
Mr. Frank:
As a kid growing up in Mississippi on a plantation; living in a
world cf racism and prejudice; watching my mother trying to
better herself by working like hellto give us a better
environment and way of life than picking cotton on a plantat±on
the rest of our lives. I didn't fully understand racism and
prejudice. My Mama used to tell me that "there are better people
out there and if we work and try hard enough and do the right
things, life would be better and good things would come to us.'
That's when I decided to really try to develop my basketball
skills---the ONLY way out of the cotton field!
Discrimination, I learned by being a military malpractice vet, is
not a color or racial issue. The military does not racially
discriminate when it comes to malpractice. ALL COLORS SUFFER.
I had ideals, hopes and dreams as other American kids. . .as you
did. . .as your kids and their kids do. Being an American and
taught by my mother to work hard and do the right things, it
pains me each day. I stood a decent chance to attain these goals
and dreams until my enlistment and service in the Air Force
changed the whole course of my life... .and the nightmare began,
I was first in my high school to earn a scholarship in sports.
It was a great opportunity because I couldn't. afford school any
other way. This would be my open door to play professional ball.
After 1 year of college I enlisted into the Air Force. When I
was in the military I played basketball for them. I'll never
forget the year of 1964. The Civil Rights Law passed. I thought
a lot about what Mama had said about there being good people in
the country and that some day laws would change. That same year
being in service to my country created .the worst nightmare I'd
ever endure....sterojd injections!!
Military malpractice vets have been abused too long.
Our government has always said that every person in this country
is entitled to his constitutional rights, one of which is to have
h~s/'her day in court. But when it comes to the military
mapractice vets, we are 3rd class citizens--cr worse. We do not
have this right!
It i.~ up tc the Senate ~nd Congress to put a stop to this abuse.
You are the malpractice vets only hope.
Every country in this world gets help from the American
government. We malpractice veterans do not.
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9
Even people from other countries can have their day in American
court. Malpractice vets cannot.
Should not this country practice equal treatment for its own
citizens---citizens who have served in the military and given of
the prime time of their lives? It seems to give more freely to
and protect and watch out for the rights, of other countries'
people. We are concerned about the human rights of others. We
determine policy with consideration to whether cr not. their human
rights have been violated. Ele~~se take a look at. us. Our
right.z have been either taken away or non-existent.. Our lives
have been ruined.
We do not have our day in court. Why not? Where are my First
Amendment rights? What happened to MY day in court? What
haopened to MY freedom which I gave up to serve this country to
help insure freedom for each and every one of you and all others-
---whether or not they are citizens of this country?
I now understand about those who have been raped. Sadly, the
military malpractice vets also have been raped. I've been
stripped and raped of life's promise -- hope -- opportunity.
When raped, the victims can confront the persons who perpetrated
this horrible crime on them. At least they are allowed to make
the perpetrator accountable for what he did to them.
I have been trying for 26 years to get someone to stand up for
me, so in essence, I'm worse off than rape victims. At least
they can get their day in court. I ye known my perpetrator 26
years. It has been frustrating to me that my government also
knows who the perpetrator is, but I have not been allowed to
present the case. . and I have all the evidence to prove that I
have bern raped.
Thank you, Mr Frank and Committee for inviting me here to testify
on behalf cf the military malpractice veteran. I hope my
testimony today will help change the law and take military
malpractice vets from 3rd class citizens to first class citizens
with full rights and privileges granted to even non-citizens.
hope that the lawmakers of this country will not let incompetent
doctors continue to cause and perpetuate this horrible dilemma.
Some of the worst cases of medical malpractice have happened in
our military. Some of the worst acts of medical malpractice were
due to incompetent military doctors cutting off the wrong leg;
incorrectly cutting off the correct leg (the procedure); removing
the wrong organ; leaving sponges or surgical tools inside the
patients' bodies; incorrect diagnoses (which could cause serious
complications ox' even he fatal); and irresponsible treatment, one
example being steroid injections such as I was given. Who
oversees the military doctors? Why has it been so easy to cover
up, or hide, or overlook these malpractice situations all these
years? Who does the military medical community answer to? Has
not Congress or the Senate any authority over military doctors?
Do they check up on them? Ferhaint it should he looked into.
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10
What are the standards for a person to practice medicine in the
ailitary? The results of maipracticing doctors is not only
destroyed vets (directly), but also [indirect] destruction of
whole families! Mine was one of the many families destroyed this
way.
I know you cant give back what is already taken away. As we age
our conditions get worse. I hope some way in your heart you can
make sure that we will he allowed to be able to pursue justice
BECAUSE WE HAVE EARNED IT. Allow us to pursue justice so we can
enjoy our earned-by-[military] service and citizenship our
inalienable rights to Freedom, Property, and Person.
I hope that our lawmakers can see the right thing to do for
military malpractice vets so they can have productive lives less
emotionally and physically torturous. Only you can do it. You
control our destiny. We're getting up in age and still the
turmoil and miseries are with us. I hope that in your heart you
will see to give us justice and the chance to enjoy a better
quality of life for those years we have left.
Our welfare - health - finances - future - Everything is in your
hands.
Justice in America should he a right. It shouldn't be something
you have to beg for. Being an American should give you the right
to get justice. Even a murderer has more rights to obtain
justice than a military malpractice vet. . .and that is one of the
worst miscarriages of justice that has ever happened in America.
The people who ran away from the duty of serving and protecting
America were given justice by Congress (Amnesty law). How long
will this injustice haunt the military malpractice vet---knowing
that. the people in the two examples just given have more rights
than we do? We hope not long.
Thank you
Sincerely yours,
Ni lie Harris
(714) 846-6848
WDH : mm
PAGENO="0015"
11
Mr. FRANK. I have no questions, because we did have a chance to
get the specifics of your case out before, and they are available in
the record of that case. So I just want to thank you for coming.
Mr. Schiff, do you have any questions?
Mr. SCHIFF. I don't have any questions for Mr. Harris, but since
he has brought my name up in his testimony I would like to take a
moment just to respond.
Mr. FRANK. Certainly.
Mr. SCHIFF. Two things. First, I have never said that I thought
the system of military compensation was adequate. I didn't say
that on CNN, I haven't said it at any other time, I have merely
pointed out, Mr. Chairman, that the system exists. There is a sepa-
rate system of military compensation for disabilities, and the very
unfortunate situation that Mr. Harris is in is no different than the
situation that almost any other American worker might find them-
selves in, because almost every American worker out there today is
under a system called workmen's compensation, and workmen's
compensation means that if the American worker is injured, even
severely injured, even through the negligence of their employer,
they cannot file a lawsuit in tort for damages~
There is another system which the society has agreed is normal-
ly better for people dealing with their employers in whatever situa-
tion where the compensation may be less in individual cases for
those who are injured through negligence, as it undoubtedly is in
Mr. Harris' case, but it is available to everyone without showing
negligence.
The problem that I have with this bill is that it seeks to add a
tort doctrine for American military members without taking away
the compensation system. In other words, members of the Ameri-
can military would have two paths to compensation when any
other working person in America normally has one system; and I
would suggest to the sponsors of this bill that if they want to create
a tort system for compensation, then let's take away the other
system; let us choose one or the other, because that is what exists
for the rest of the United States.
In conclusion, I want to mention that I have been a member of
the New Mexico Air National Guard for more than 20 years, and I
am still a member, and my wife Marcia is a member of the U.S.
Army Reserve for almost 20 years and still a member. So I am not
talking about people in other shoes, I'm talking about. the shoes
that I have walked in, myself, and still do for more than 20 years.
Thank you, Mr. Chairman.
Mr. FRANK. I would just make two points to the gentleman.
First, maybe I misunderstand the law. It is not my impression
that the existence of the workers' compensation system deprives
you of your right to sue for medical malpractice, and that is what
we are talking about here.
Mr. ScrnFF. If the-
Mr. FRANK. I would yield to the gentleman.
Mr. SCHIFF. I'm sorry, Mr. Chairman, I didn't ask permission to
yield. Thank you for yielding.
Workmen's compensation applies for relationships between em-
ployer and employee.
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12
Mr. FRANK. Suppose you worked for a hospital-and I honestly
don't know the answer to this question-and you were the victim
of medical malpractice in that hospital, would you be forced to rely
solely on workmen's comp and not have a right to sue for medical
malpractice?
Mr. SCHIFF. I think, Mr. Chairman, the answer to that would
apply to the totality of whatever the working relationship is be-
tween the employer and the employee. In other words, is treating
people for injuries on the job part of the normal and expected,
agreed upon benefits that workers work at that hospital? I would
assume that, if it is, then that would be covered as part of-
Mr. FRANK. And that you could not sue the doctor for malprac-
tice. Well, I will have to check that, because there is the question
the gentleman raised. But we are being clear here; in general, if
you get workmen's comp, it has been my impression you could also
sue for malpractice.
The other point I would make is, the gentleman said we
shouldn't give them both; we don't. Section (c) of the bill, on page 2:
"Offset of other Government benefit by amount of awards or judg-
ments." So we have in this bill a provision that prevents a double
collection.
Mr. SCHIFF. A double collection, Mr. Chairman, if I may ask the
Chair to yield-this bill would prevent a double collection in indi-
vidual cases, but it would permit those who are injured-and I
regret anyone being injured, Mr. Harris or anyone else-
Mr. FRANK. Well, let me just-I want to take my time back-I
think the gentleman gave an unfortunate suggestion that somehow
military people would be getting dual benefits. We have to be very
clear; they will not. Under this bill, if you elect to sue for malprac-
tice, any award you get diminishes what you would get for veterans
benefits for disability, and, in fact, we worked this out with the
Veterans' Committee so that the malpractice awards would come
first, so as not to diminish the veterans benefits.
So we ought to be very clear; no one would be getting two
awards; they would have the option as to whieh one to sue for, but
they would not be getting double compensation.
Mr. Edwards.
Mr. EDWARDS. It is very generous of Mr. Harris to be here, and I
appreciate his testimony.
Mr. FRANK. I thank you.
Mr. Harris, we appreciate your testimony, and I think we are fin-
ished with you now. Thank you.
Mr. HARRIS. Thank you very much, Mr. Frank.
Mr. FRANK. Mr. Rose has just come in, so we will have Congress-
man Rose, accompanied by Mrs. Paulette Wall.
Again, Mr. Rose and Mrs. Wall were before us before, and we
learned the details of the case then. Let me say to these two what I
said to the other two. Mr. Rose is also chairman of a very impor-
tant full committee, House Administration. He is the only Member
of Congress who walks the halls and gets from us what we get from
our constituents when we get home, because he is the one other
Member of Congress to whom we can make our complaints, and so
he has been very busy.
PAGENO="0017"
13
Mrs. Wall came previously and shared with us the very unfortu-
nate series of events that befell her and her late husband, and, as
with Mr. Harris, I want to congratulate her for being willing to
come forward on a bill which cannot have any benefit for herself.
So she really is here totally unselfishly.
And I know this is not an easy experience for you to relive. We
are particularly appreciative of your generosity in coming forward.
Mr. Rose, we will begin with you.
STATEMENT OF HON. CHARLIE ROSE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NORTH CAROLINA
Mr. ROSE. Thank you, Mr. Chairman and members of the panel.
I have a statement that I would like to ask be put in the record.
Mr. FRANK. Without objection, it will be made part of the record.
Mr. ROSE. And I would very briefly like to introduce to you Pau-
lette Wall, whom you know and, as you have said, have already
heard from before. I think her story is an especially tragic one, be-
cause it involves a very fine soldier in my district, in Fort Bragg,
and what happened to him because of a failure to properly diag-
nose his condition.
So, without further ado, Mr. Chairman and members of the
panel, I give you Mrs. Paulette Wall.
[The prepared statement of Mr. Rose follows:]
PAGENO="0018"
14
Testimony of Congressman Charlie Rose Before
the Subcommittee on Administrative Law and
Governmental Relations
October 2, 1991
Mr. Chairman, members of the subcommittee, I come before you
this morning to speak about HR 3407, a bill I have
cosponsored to modify the Feres doctrine. In a few moments
you will be hearing testimony from Paulette J. Wall, who, up
until a short while ago, lived in my Congressional District
in North Carolina. Mrs. Wall's husband, Major Michael J.
Wall, was an attorney in the Army Judge Advocate General's
Corps stationed at Fort Bragg, North Carolina. Major Wall
was a patriot in the finest sense of the word. During the
Vietnam War Michael Wall quit college to volunteer for the
Air Force. After the war, Major Wall attended law school and
instead of entering a lucrative private practice he became a
career military officer. Major Wall died of a heart attack
on December 5th, 1988. He was survived by his wife and two
children. Mrs. Wall will tell you why she is firmly
convinced that Major Wall died as a result of negligent
treatment received at Womack Army Community Hospital.
As you all know, the Feres doctrine prevents members of the
armed services, and their survivors and dependents, from
suing the federal government for actions incident to military
service. Because of this Mrs. Wall is prevented from seeking
damages directly from the Department of the Army. In all
other areas of law we place our trust in our court system to
determine the merits of the cases which are brought before
it. But for some reason this system is not good enough for
the United States military. It galls me to think that our
armed services can be guilty of violations, no matter how
heinous, and not be held accountable to those who are injured
or their families. No one, not even the United States
military, should be allowed to operate with complete
impunity. Simply because the men and women of our armed
services volunteer for service should not mean that they
sacrifice their rights as United States citizens.
Please listen carefully to Mrs. Wall's tragic story. I
cannot imagine a more compelling reason to modify the Feres
doctrine. We must prevent this from happening again.. I urge
you to act favorably and swiftly on HR 3407.
Gentlemen, thank you for granting me time to appear before
you today.
PAGENO="0019"
15
STATEMENT OF J. PAULETTE WALL, GREENSBORO, NC
Mrs. WAU1. Good morning.
As you know, my name is Paulette Wall, and I have two chil-
dren: A daughter, Lisa Ann Wall, who is only 14 years old, and a
stepson, Michael, who is 24.
My husband, Maj. Michael Wall, was an attorney in the Army's
Judge Advocate General's Corps. He was a career military officer
for almost 19 years of service to his country. My husband suffered
a fatal heart attack on November 23, 1988. I firmly believe that my
husband died unnecessarily because of negligence on the part of
the U.S. Army, and I am before you today to implore you to do
what is right and modify the Feres doctrine.
In the fall of 1988, my husband was experiencing tightness in his
chest, nausea, light-headedness, and shortness of breath when he
participated in his normal physical training. He first reported
these symptoms to the doctor on October 12, 1988. On that date, an
EKG was run, and it showed abnormal results. A second EKG/
treadmill/stress test was performed on October 17, 1988, which also
showed irregular results. He then took a Thallium stress test on
November 15, 1988, which showed an area of decreased activity in
the lower left portion of the heart. The student family practice resi-
dent who was interpreting this Thallium test did not feel that it
was necessary that my husband should be catheterized even though
the accompanying EKG was abnormal.
On the day after my husband's release to return to physical
training, I called that student resident and talked to him personal-
ly for 20 minutes concerning his decision to return my husband to
physical training without knowing what was causing his chest
pains. The student resident repeatedly overcame my objections,
and he said to me: "Trust me, Mrs. Wall. The Thallium test is the
state of the art, and if your husband had heart trouble the Thalli-
um test would show it."
I repeatedly told this student resident that I felt that his chest
pains were serious. The student resident advised me that he had
called Walter Reed Medical Center and talked to a staff cardiolo-
gist there and that, based on their conversation, he was satisfied
that my husband did not have a heart problem.
After my husband's death, the resident admitted to me that he
was uncomfortable returning my' husband to physical training but
that he had to rely on the judgment of the supposed staff cardiolo-
gist.
To satisfy my concerns about the cause of my husband's chest
pains, the resident agreed to schedule an upper GI test on my hus-
band and review the results at his regular yearly physical in `Janu-
ary, but he insisted in the meantime that it would be safe for my
husband to in the meantime run.
I found out later that this staff cardiologist was a doctor who had
been studying cardiology for only 4 months. No written tests were
mailed or faxed to Walter Reed Army Medical Center. The results
of the tests we communicated entirely over the telephone by a man
who, himself, was still in training and not qualified at all to read
and interpret cardiology data to another man who had just begun
to study cardiology. This communication, in itself, was a violation
PAGENO="0020"
16
of Army hospital regulations. Regulations strictly require that if a
student cardiologist receives a call from a doctor regarding a pa-
tient, they are to take the data to a staff cardiologist. The student
cardiologist did not feel that it was necessary to tell the resident
that he was not a staff member, nor did the resident take the time
to ask, as policy required.
So my husband was returned to full active physical training with
no restrictions on November 15, 1988. Here was a 47-year-old sol-
dier who was experiencing chest pains, had three abnormal EKG's,
displayed a blood cholesterol level of 230, and whose Thallium test
showed an area of decreased activity in the heart, and the student
resident administering the care allowed him to return to full active
physical training. He did not restrict my husband to walking and
gradually working his way to running; he did not recommend that
my husband wait until the upper GI was performed before he re-
turned to full rigorous training or until such time that he could
find out what was causing his chest pains. He did not even mention
to my husband that his cholesterol was elevated, nor did he make
any recommendations to change his diet.
And so my husband was returned to running in formation with
his company. Just 1 week later, the second time he ran, after the
doctors assured me that it was safe to do so, my husband suffered a
fatal heart attack. His troops performed CPR on him, but his blood
was so depleted of oxygen due to the fact that he was running that
it was totally unsuccessful. The ambulance wasn't even able to
locate him due to the fact that these runs are staged in the woods.
He went into a coma, and he remained in that state until Decem-
ber 5, 1988, when I was forced to make the decision to take him off
the respirator due to brain death.
The student resident was on leave over this Thanksgiving holi-
day, and upon his return he was told of my husband's heart attack,
and he came to see me at my husband's bedside. The student resi-
dent placed a note in my records on that date which read: "In ret-
rospect, the above case should have been referred to Walter Reed
Army Medical Center for catheterization due to abnormal tread-
mill and active duty status."
Two doctors outside the chain of command of the Womack Army
Hospital and Walter Reed Army Medical Center have reviewed
these records at my request. They both have made negative com-
ments about my husband's treatment. Dr. Wilkin from Eisenhower
Army Hospital at Fort Gordon, GA, said that there was a break-
down in communications between Womack Hospital and Walter
Reed Army Medical Center. Dr. Martin Frank, a civilian professor
of cardiology, said that, due to the fact that my husband was forced
to perform physical training and that his cholesterol level was ele-
vated, he should have been catheterized.
This brings me to another area of negligence beyond the two in-
experienced staff doctors making inappropriate decisions. Fort
Bragg, the largest military installation in the world, the home of
the Army's Special Forces, did not have one single cardiologist at
the time of my husband's death. I feel that it is ridiculous and
unfair that Bethesda Naval had five cardiologists and that Walter
Reed had 12 cardiologists on staff at that time and Fort Bragg had
PAGENO="0021"
17
none. I am convinced that if Fort Bragg had had even one cardiolo-
gist my husband would be alive today.
My frustration, gentlemen, lies in the fact that my husband did
not have to die. If he had received negligent treatment in a private
hospital, I would have legal recourse to seek damages, but because
my husband was patriotic, because he devoted his career to the
military and his country, I am left with nothing.
My husband voluntarily left college to enlist in the Air Force
during the Vietnam War. He was a man who devoted his life to his
country. It is sadly ironic that a man who loved his country so com-
pletely and so unselfishly would die as a result of official negli-
gence.
Members of the committee, I believe that it is important for you
to understand that oftentimes the U.S. military is guilty of gross
negligence. This negligence has a momentous impact on the fami-
lies of those soldiers affected. I am asking you to modify the Feres
doctrine not only for the purpose of compensating injured families
but also to act as a deterrent against careless mistakes.
As citizens, we place our trust in the American legal system, yet
this same system is unsatisfactory to the U.S. military services.
I have traveled here today at my own expense because this legis-
lation is so dear to me. I have done this even though a change in
this law will not benefit me personally. I implore you to consider
not only the circumstances of my case but also the testimony of
those others here today who have been personally affected by this
Feres doctrine.
My husband served his country well, but he has not been served
well in return. Even in his death, his organs were donated that
others might live. You can never replace my husband, but you can
do something to prevent this injustice from ever occurring again.
Don't let one other family live through the nightmare that my
family has endured. Please modify the Feres doctrine.
Thank you for your time and consideration.
Mr. FRANK. Thank you, Mrs. Wall. Again, I appreciate your will-
ingness to do this, and since we did meet with you before I have no
questions at this time.
[The prepared statement of Mrs. Wall follows:]
PAGENO="0022"
18
Testimony of Mrs. J. Paulette Wall before
the Subcommittee on Administrative Law
and Governmental Relations
October 2, 1991
My name is Mrs. Paulette Wall. I have two children, a daughter Lisa Ann who is fourteen
years old and a step-son Michael who is twenty-four. My husband, Major Michael Wall
was an attorney in the Army's Judge Advocate General's Corps. He was a career military
officer with almost 19 years of service to his country. My husband suffered a fatal heart
attack on November 23, 1988. I firmly believe that my husband died unnecessarily
because of negligence on the part of the United States Army. I firmly believe that my
husband died unnecessarily because of negligence on the part of the United States Army
and I am before you today to implore you to do what is right and modify the Feres
doctrine.
In the Fall of 1988 my husband was experiencing chest tightness, nausea, light headedness
and shortness of breath when he participated in his normal physical training routine. He
first reported these symptoms to the doctor on October 12, 1988. On that date an EKG
was run which showed abnormal results. A second EKG/treadmill/stress test was
performed on October 17, 1988 which also showed irregular results. He then took a
Thallium stress test on November 15, 1988 which showed an area of decreased activity in
the lower left portion of the heart. The student family practice resident who was
interpreting this Thallium test did not feel that my husband should be catheterized even
though the accompanying EKG result was abnormal.
On the day after my husband's release to return to physical training, I called the student
resident and talked with him for about 20 minutes concerning his decision to return my
husband to physical training without knowing what was causing his chest pains. The
student resident repeatedly overcame my objection saying to me, "Trust me Mrs. Wall, the
Thallium test is the state of the art and if your husband had heart trouble it would show up
on the Thallium test." I repeatedly told the student resident that I felt that his chest pains
were serious. The student resident advised me that he had called Walter Reed Army
Medical Center (WRAMC) and talked to a "staff cardiologist" and, that based on their
conversation, he was satisfied that my husband did not have a heart problem. (After my
husband's death, the resident admitted that he was uncomfortable returning my husband to
physical training but he had to rely on the judgement of the supposed "staff cardiologist.")
To satisfy my concerns about the cause for my husband's chest pain, the resident agreed to
schedule an upper GI test on my husband and review the results at his regular yearly
physical in January. He insisted that it would be safe for my husband to run in the
meantime.
I found out later that this "staff cardiologist" was a fellowship doctor who had been
studying cardiology for only four months. No written tests were mailed or faxed to
WRAMC. The results of the tests were communicated entirely over the telephone by a man
who himself was still in training and was not trained at all to interpret cardiology data to
another man who had just begun to study cardiology. This communication in itself was a
violation of Army regulations. Army regulations strictly require that if a student
cardiologist receives a call from a doctor regarding a patient they are to take the data to a
staff cardiologist. The student cardiologist did not feel it necessary to tell the resident that
he was a student and the resident did not take the time to ask as policy required.
So my husband was returned to full physical training with no restrictions on November 15,
1988. Here was a 47 year old soldier who was experiencing chest pains, had three
PAGENO="0023"
19
abnormal EKG s displayed a blood cholesterol level of230 and whose Thallium test
showed an area of decreased activity in the heart and the student resident administenng care
allowed him to return to full active physical training He did not restrict my husband to
walking and gradually working his way to running He did not recommend that my
husband wait until the upper 01 was performed before he returned to rigorous physical
trainmg or until such time as he could determine the cause of the chest pain He did not
even mention to my husband that his cholesterol was elevated nor did he make any
recommendation to change his diet.
And so my husband returned to runmng in formation with his company Just one week
later the second time he ran after the doctor assured me it was safe to do so my husband
suffered a fatal heart attack His troops performed CPR on him but his blood had been so
depleted of oxygen due to running that it was totally unsuccessful The ambulance was
unable to locate him because physical training runs are staged in the woods He went into a
coma and remained in that state until December 5 1988 when I made the decision to take
him off the respirator due to brain death
The student resident was on leave over the Thanksgivmg holiday Upon his return he was
told of my husbands heart attack and came to see me at my husband s bedside on
November 28 1988 The student resident placed a note in my husbands medical records
on that date which read In retrospect above case should have been referred to WRAMC
for cath due to abnormal treadmill and active duty status
Two doctors outside of the chain of command of Womack Army Hospital and WRAMC
have reviewed the records of my husband at my request They both made negative
comments about my husbands treatment Dr Wilkin from Eisenhower Army Hospital at
Fort Gordon Georgia said that there was a breakdown in communications between
Womack and WRAMC Dr Martin Frank, a civilian professor of cardiology said that due
to the fact that my husband was forced to do physical training and that his cholesterol level
was elevated he should have been catheterized. He also stated that if the army does not
change its policy on middle aged soldiers doing physical training they will continue to
experience fatalities.
This brings me to another area of negligence beyond the two inexperienced non staff
doctors making inappropriate decisions Fort Bragg the largest military installation m the
world, the home of the Army s special forces did not have a single staff cardiologist at the
time of my husband's death. I feel that it is ridiculous and unfair that Walter Reed had 12
cardiologists Bethesda Naval Hospital had 5 and Fort Bragg had none I am convinced
that if Fort Bragg would have had a staff cardiologist my husband would be alive today
My frustration lies in the fact that my husband did not have to die Had he received
negligent treatment in a pnvate hospital I would have legal recourse to seek damages But
because my husband was patriotic because he devoted his career to his country I am left
with nothing My husband voluntarily left college to enlist in the Air Force during the
Vietnam War He was a man who devoted his life to his country It is sadly ironic that a
man who loved his country so completely and unselfishly would die as a result of official
negligence, with his family legally prevented by the Feres doctrine from suing the
government for its malpractice
You see before you today the wife of career military officer who was devoted and
dependent upon her husband I ani only a high school graduate I do not have the means
to provide for my family in the manner in which my husband could I have lost my house
because of the untimely death of my husband and now it will be impossible for my
daughter to attend the college of her choice
PAGENO="0024"
20
Members of the Committee, I believe it is important for you to understand that often times
the U.S. military is guilty of gross negligence. This negligence has a momentous impact
on the families of those soldiers affected. I am asking you to modify the Feres doctrine,
not only for the purpose of compensating injured families, but also to act as a deterrent
against careless mistakes. It is sadly ironic that as citizens we place our trust in the
American legal system yet this same system is unsatisfactory to the United States military.
I have travelled here today at my own expense because this legislation is so unportant to
me. I have done this even though a change in this law will not benefit me personally. I
implore you to consider not only the circumstances of my case, but also the testimony of
those others here today who have been affected by the Feres doctrine.
My husband served his country well, but he has not been served well in return. Even in
his death his organs were donated that others might live. You can never replace my
husband but you can do something to prevent this injustice from occurring again. Don't let
one other family live through the nightmare that my family has endured. Please modify the
Feres doctrine. Thank you for your time and consideration of this matter.
PAGENO="0025"
21
Mr. FRANK. Mr. Gekas.
Mr. GEKAS. No questions.
Mr. FRANK. Mr. Edwards.
Mr. EDWARDS. No questions.
Mr. FRANK. Mr. Schiff.
Mr. SCHIFF. No questions.
Mr. FRANK. Mr. Ramstad.
Mr. RAMSTAD. Mr. Chairman, just a few brief comments.
Mrs. Wall, we really appreciate your testimony and admire your
courage and your effort here today, and I never understood, long
before I got to this body, why prisoners, in a sense, are treated
better than soldiers. Prisoners have the right to sue. I sat for 10
years at the State level on a claims committee, hearing claims
from prisoners for malpractice and other acts of negligence on the
part of agents of the State, and never understood why the Feres
doctrine should not be overruled.
So, Mr. Chairman, if I am not already a cosponsor, please add me
to your bill.
Mr. FRANK. I will be glad to do that, and I thank you.
Mrs. Wall, thank you again. You have really done a very gener-
ous and noble thing, and whether people agree or disagree with the
suggestion, I think there is universal admiration for your willing-
ness to once again live through an unpleasant-"unpleasant" un-
derstates it-a tragic experience for you, so that others may be
helped, and we want to acknowledge again the diligence of our col-
league, Mr. Rose, who has been spending a lot of his very valuable
time on this. Thank you very much.
Mrs. WALL. Thank you, gentlemen.
Mr. FRANK. Next we are going to have the final witness here,
and it is a videotape. Mr. Martin Gaffney, who is ill with AIDS at
this point, decided not to personally attend. So we have a 5-minute
videotape appearance from Mr. Gaffney. We had invited him; he
was planning to come; his health took a turn for the worse; and I
think he decided, in consultation with his doctors, that this would
be better.
Here it is.
[Videotape shown, as follows:]
STATEMENT OF MARTIN F. GAFFNEY, CHIEF WARRANT OFFICER, U.S. MARINE CORPS,
SOUTH WEYMOUTH, MA
Ms. MCKINNEY. This is the videotaped testimony of Martin F. Gaffney, chief war-
rant officer in the U.S. Marine Corps. It is being taped at Massachusetts General
Hospital in Boston on Monday, September 30, 1991.
Mr. Gaffney is undergoing testing and treatment at Mass. General. He has recent-
ly been diagnosed as suffering from lymphoma, a. form of cancer, secondary to his
AIDS infection.
I am Jacqueline McKinney, counsel for Mr. Gaffney.
Mr. Gaffney, wou.ld you give for the subcommittee's benefit a brief description of
your family's case against the Government?
Mr. GAFFNEY. Yes. My wife was a victim of medical malpractice in a Navy hospi-
tal that caused the stillbirth of our first son, that required a transfusion that she
should not have needed, that was later discovered to have been tainted with the
AIDS virus. My wife died as a result of that from AIDS years later. We had a son
born before we knew of our infection. He also died after 13 months of AIDS, and I
am infected.
Ms. MCKINNEY. Did the Government assert the Feres doctrine as a bar to your
recovery in this case?
PAGENO="0026"
22
Mr. GAFFNEY. Yes, the Government did try to use the Feres doctrine in my case.
They tried to have my claim for infection thrown out using the Feres doctrine as
justification. The judge in the case ruled against the Government's motion to have
my claim thrown out because I was not the initial victim of the negligence and my
infection was not anything I did incident to service.
Ms. MCKINNEY. Since the Feres doctrine was ruled not to bar your claim, would
you explain your interest in the Feres doctrine and in the legislation now under con-
sideration?
Mr. GAFFNEY. Changing the Feres doctrine does nothing for me personally, but I
feel very strongly that it deserves to be changed. It is blatantly unjust. An example
would be, if Manuel Noriega, for example, were the victim of malpractice, he could
file a claim under the Federal Tort Claims Act, and yet, for example, Gen. Norman
Schwarzkopf, before he retired, if he was a victim of medical malpractice in a mili-
tary hospital, he would not have the same right. That may sound farfetched, but
that is not farfetched at all.
My wife was a Japanese citizen to her dying day, and she was allowed to file a
Federal tort claim. If I had been the victim of the malpractice rather than my wife,
with the same result-four deaths-there would be no case.
Ms. MCKINNEY. Mr. Gaffney, the court has awarded you some $3.8 million in
damages. When was that awarded to you?
Mr. GFFNEY. It was awarded to me several months ago, in April of this year.
Ms. MCKINNEY. Do you know when you will actually receive that money?
Mr. GAFFNEY. No, I don't know when I will receive that money. I am afraid of the
possibility of the Government appealing this case, an appeal that I view as a frivo-
lous appeal, and dragging this case on beyond my lifespan.
Ms. MCKINNEY. Mr. Gaffney, just out of camera range there is hanging in the
window the banner of the U.S. Marine Corps. Would you explain to the subcommit-
tee why that is in your hospital room?
Mr. GAFFNEY. I've been a marine for 16 years, and damned proud to be able to say
I was a marine for 16 years, and I am a classic example of the Marine Corps sup-
porting their own, taking care of their own. The last 5 years that I have been fight-
ing this battle with the Justice Department, I have gotten complete, 100 percent,
support from the Marine Corps, support that I would not have survived this last 5
years without.
Ms. MCKINNEY. Thank you, Mr. Gaffney. Is there anything else you would like to
add?
Mr. GAFFNEY. Yes. I would like to* thank the chairman and members of the com-
mittee for inviting me to testify, and I regret that I'm not there personally to give
my testimony.
I would just like to briefly say that, if by some miracle this legislation to change
the Feres doctrine is passed, that people on active duty who would then be allowed
to file Federal tort claims for medical malpractice should be aware that they are
taking on the U.S. Department of Justice, a ruthless organization with unlimited
resources that doesn't always play fair and will drain you and your law firm with
their unlimited resources.
The Feres doctrine deserves to be changed, but people should be aware that it is
not going to be easy being compensated by the Government, because the Depart-
ment of Justice just isn't out to-they have no concept of justice.
Ms. MCKINNEY. Thank you, Mr. Gaffney.
[End of videotape.]
Mr. FRANK. The testimony of Mr. Gaffney, obviously, is in the
record. There will not be any questions. We didn't have call-in
equipment.
Next we will have Mr. Terrence O'Donnell, who is General Coun-
sel of the Department of Defense, and he is accompanied by Lieu-
tenant General Alexander; and Mr. Stuart Gerson, our frequent
interlocutor, who is the very able Assistant Attorney General at
the Civil Division, Department of Justice.
At this point, I would also ask unanimous consent from my col-
leagues to put into the record statements from Joseph E. Connors,
who is the president, and Peggy D. Friend, president of the Virgin-
ia branch, of Concerned Americans for Military Improvements. If
there is no objection, they will go in the record.
[The prepared statement of Mr. Connors follows:]
PAGENO="0027"
23
(~NCU1IZ$ AUIiCANI `is MUUTA*T IMPlO~tUKT$
CONCERNED AMERICANS FOR MILITARY IMPROVEMENTS
STATEMENT SUBMITTED SEPTEMBER 20, 1991
TO THE HONORABLE BARNEY FRANK TO BE ENTERED IN THE
RECORD OCTOBER 2, 1991 IN THE HOUSE HEARINGS ON TIlE
FERES DOCTRINE.
President
National Office
3574 Buford Hwy. #4
Atlanta, Georgia 30329
behalf of C.A.M.I.,
E. Connors
PAGENO="0028"
24
We, as Concerned Americans for Military Improvement
(C.A.M.I.), on behalf of military personnel of the United
States with problems now, or in the future, wish to make the
following statement and respectfully request said statement
be included in the record:
Our Nation was founded on the principles of freedom and
justice. We have fought wars, even on our own soil, for civil,
constitutional and human rights. However, in our military
system as it exists today, our military personnel are constantly
and persistently denied the very rights they have sworn a
solemn oath to protect -- their civil, constitutional and
human rights.
Shortly after World War II, the military was "removed"
from the protection of the Constitution by the passage of
the Uniform Code of Military Justice and the Feres Doctrine.
In effect, at that time, our military became and remains today
a "separate society" in which military personnel are treated
as "second-class citizens". WE COME BEFORE YOU TODAY
REPRESENTING EVERYONE IN THE MILITARY, NOW OR IN THE FUTURE,
WHO CRY OUT FOR "EQUAL PROTECTION" AND "EQUAL JUSTICE" AS
GUARANTEED TO THEM BY OUR "LAW OF THE LAND" -- THE CONSTITUTION
OF THE UNITED STATES OF AMERICA.
Our Constitution, as established and intended by our
Founding Fathers, provides for three separate, distinct branches
of government -- the Executive, the Legislative, and the
Judicial. Each branch is granted powers and responsibilities
not given by constitutional authority to the other branches.
This was originally intended by our Founding Fathers tO be
a system of "checks and balances". As an example, one
responsibility solely granted to the Legislative Branch is
to make laws; and the responsibility solely granted to the
Judicial Branch is to interpret those laws made through
legislation -- not to make or "broaden" laws as was done in
1950 in Feres v7~tJnited States, 340 U. 5. 135. This power
is strictly granted to the Legislative Branch of our government
and to no other branch.
The basic principle of the Feres Doctrine is to bar actions
for recovery by military personnel for wrong-doings committed
against them, often by military officers and military medical
personnel. In making decisions under the Feres Doctrine,
the Courts have taken the "but for" stance; i.e., "but for
his incidence of being in the military service". Webster's
New World Diction~y, 1975 edition, defines "but for" as slang
for = if it were not for. In other words, if a person were
not in the military service, he would not be denied recourse
under the law. This is yet another example of the abridgement
of the Constitutional, civil and human rights of military
personnel under the "color of law". A "law" which in itself
is unconstitutional as it was made by the Judicial Branch
of our government rather than the Legislative Branch.
PAGENO="0029"
25
As Judge Clarence Thomas so eloquently stated during
his Confirmation Hearings for the United States Supreme Court:
"In (our) criminal justice system, we do not sacrifice
justice or fairness for uniformity or rigidity."
However, this is exactly what is happening under the auspices
of the Feres Doctrine.
The Feres Doctrine and the Uniform Code of Military Justice
encompass a policy that is not designed to meet the needs
of a person's right to life, liberty and the pursuit of
happiness. ANY POLICY DESIGNED TO ABRIDGE THESE RIGHTS IS
UNCONSTITUTIONAL AND MUST NOT BE ALLOWED TO STAND THAT
IS THE LAW!!! Once a Nation has thrown away the restraints
of common II~ and taken a path of usurped power, its path
then leads to enslaving its people, i.e., under the cloud of
protection of the Uniform Code of Military Justice and the
Feres Doctrine, military officers and military personnel are
allowed to abridge the civil, human, and constitutional rights
of other military personnel with no fear of reprisal or personal
liability for their actions under the auspices of the "but
for' policy. THIS IS NOT RIGHT, JUST, OR "EQUAL PROTECTION
UNDER THE LAWS" AS GUARANTEED BY THE CONSTITUTION OF THE UNITED
STATES!
Mr. Terry Bennett, Esq., states in Vol. 29, No. 2, March
1985 issue of the Saint Louis University Law Journal:
"The Feres doctrine, generally recognized as the only
judicially c!iited exception to the FTCA, (Federal Tort Claims
Act) has often been criticized by commentators and lower courts.
Nevertheless, the doctrine has survived and even prospered.
The federal courts, uncertain of the doctrine's boundaries,
have applied it to bar servicemen from recovering against
the United States in virtually all cases. In the process,
the original rationales underlying the doctrine, weak to begin
with, have been lost."
"The most recent Supreme Court decision in this area
was Chappel v. Wallace,l03 S. Ct. 2362 (1983), in which five
minority servicemen brought suit against their superior officers,
alleging racist treatment. Their action was founded on the
Constitution and federal law. (Suits against individual officers
are also barred by Feres. See Misko v. United States, 453
F. Supp. 513 (D. D. C. 1978), aff'd without opinion, 593 F.
2d 1371 (D. C. Cir 1979). The Feres doctrine ha~5~en
universally applied to cases based on intentional torts or
violation of constitutional rights. See, e.g., Citizens Nat'].
Bank v. United States, 594 F. 2d 1154 (7th Cir. 1979); Misko,
453 F. Supp. 513. For a criticism of this extension of the
Feres doctrine, see comment, ~çpansion of the Feres Doctrine,
32 Emory L. J. 237 1983)."
PAGENO="0030"
26
"The lower courts had long perceived cracks in the
Feres citadel as related Supreme Court decisions weakened
its underlying rationales, and many judges anticipated a retreat
from the doctrine. To their surprise, the Court reaffirmed
the Feres doctrine, asserting that it is best explained by
the effect of suits on military discipline and ignoring all
other factors. In denying relief, the Court referred to `the
special nature of military life, the need for unhesitating
and decisive action by military officers and equally disciplined
responses by enlisted personnel which would be undermined
by . . . exposing officers to personal liability at the hands
of those they are charged to command.' Thirty-three years,
three cases, and two wars after Feres, the Supreme Court stood
firm."
the lower federal courts have tread various paths,
with few and narrow exceptions to the same destination: denial
of recovery. While continually criticizing the vagueness
of the doctrine and often expressly or impliedly inviting
the Supreme Court to provide further guidance, (Miller v.
United States, 643 F. 2d 481, 483, 8th Cir. 1980) the lower
courts have devised broad, mechanical rules in lieu of analysis.
Although these rules may be clothed in fine rhetoric, their
garments are sheer. Little lies beyond their grasp." (emphasis
added)
"The courts have never considered what this virtual flood
of lawsuits may indicate regarding the doctrine's effect on
discipline. Does a continuing march of servicemen to the
courthouse door, only to be repulsed, improve military morale?
Soldiers would not continue to sue and to rearq~e cases often
rebuffed in the past unless they believed that the military~
had denied them their just recompense."
"A direct challenge to the doctrine is long past due.
Numerous Government briefs have made clear the Army's
institutional view of military discipline. The courts, however,
have never heard what the subjects of military discipline,
those putative rebels, think of all this." (emphasis added)
"Studies conducted during the Korean and Vietnam Wars
confirmed the `seeming irrelevance' of traditional concepts
of discipline. Like Stouffer, these studies found that the
basic drive to return home 3afely and the intimacy of the
group were the primary motivations under fire. An infantrynan's
identification with his `buddies', `although often at odds
with the authority system . . . contributed to operational
effectiveness.' The rigidity of discipline actually detracted
from morale and military efficiency, and increased dissension
PAGENO="0031"
27
and unrest Although blind obedience may have been necessary
when armies had to be forced into open fire in maqs infantry
lines it is harmful in modern armies requiring individual
responsibility (emphasis added)
"THE SUPREME COURT MAY BELIEVE TEAT CONGRESS SHOULD PROVIDE
THE OVERSIGHT FOR MILITARY MANEUVERS MEVERTHELESS HAVING
CREATED THE FERES DOCTRINE THE COURT IS FREE TO REPUDIATE
IT Society -- through either the courts or Congress -- must
hold the military accountable for the devastation it has wreaked
and which it has the power to repeat If it is decided that
the military should be free to conduct such operations their
price must be recognized and paid by the society that has allowed
them NOT by the individuals who have suffered from them
Only then can society decide whether the price is worth the
pptential gain THE GOVERNMENT KNOWS THAT MODERN WEAPONRY
SUBJECTS ITS SOLDIERS TO GREAT RISK IT SHOULD ENSURE THAT THOSE
SOLDIERS AND THEIR FAMILIES WILL BE FULLY COMPENSATED
In Feres the Court expressly invited Congress to reverse
its decision if its interpretation was incorrect and Congress
failure to do so has been assumed to imply consent (Feres
340 U S at 138) BUT SILENCE IS A THIN REED ON WHICH TO
IMPALE MEN S LIVES THE COURT S OWN SILENCE IN THE FACE OF
REPEATED PLEAS FOR CLARIFICATION FROM LOWER COURTS BELIES
THE CONTENTION THAT A FAILURE TO SPEAK INDICATES APPROVAL
INSTEAD, THE GOVERNMENT'S STONEWALL OF THE VETERANS AND THE
COURT S REVIEW OF ONLY TWO CASES IN THIRTY YEARS INDICATE
NOT APPROVAL BUT AVOIDANCE (emphasis added)
Ultimately these claims invoke the most basic
considerations of Justice As the dissent in Jaffee put it
they involve a violation of human rights on a massTve scale
It is enough that men must die to def/end their country Their
government should not be permitted mithout responsibility
to slowly slaughter those who return from war alive (emphasis
added)
"The lesson of the Feres doctrine s newest victims also
must be broadly learned Their cases reach to the very hearts
of our laws our society and our humanity It is rare that
horror so acutely informs rational lawmaking A legal system
that dismisses the veteran s appeal to its laws must ask where
it stands among the world s systems of justice And a society
that rejects their claim on its humanity must ask what place
it holds among the world s civilizations "(emphasis added)
IT WOULD SEEM THAT ONE OF THE MOST IMPORTANT MEASURES
WE SHOULD TAKE IN OUR NEW WORLD ORDER" WOULD BE TO CALL FOR
A RESTRUCTURING OF THE MILITARY JUDICIAL SYSTEM AND FERES
SO TEAT THE YOUNG MEN AND WOMEN WHO ENTRUST THEIR LIVES TO
MILITARY SERVICE CAN HAVE THE SAME RECOURSES OPEN TO THEM
WHILE IN THE MILITARY AS THEY WOULD HAVE IF THEY REMAINED
PAGENO="0032"
28
CIVILIANS AND NOT TO CONTINUE TO SACRIFICE JUSTICE FOR "RIGIDITY
AND UNIFORMITY".
As Thomas Jefferson stated: "If a nation expects to
be both ignorant and free in a state of civilization, it expects
what never was and never will be." He went on to state in
a letter to Madison: "A SOCIETY THAT WILL TRADE A LITTLE LIBERTY
FOR A LITTLE ORDER WILL LOSE BOTH, AND DESERVE NEITHER."
When we allow our military system to practice fraud,
discrimination, abuse, coercion, malpractice, and violation
of civil, constitutional, and human rights, virtually unchecked,
it is not only unfair and unjust -- it is a disgrace. We
must take action now to see that the abuses of the past committed
under the `color of law' of the Feres Doctrine are not allowed
to continue. We feel that not only does the Feres Doctrine
allow abuse, but, in fact, actually encourages and invites
abuse because there is no fear of recourse or personal liability.
Not only do we allow our military systen to go unchecked,
we actually allow private companies to come under the shroud
of protection of the Feres Doctrine and avoid liability for
defective equipment if the military "approved reasonably precise
specifications" for the product. Are military personnel or
their families' health, safety and welfare any less valuable
than that of private citizens? WE THINK NOT!!!
By removing the shroud of protection of the Feres Doctrine,
we remove the "license" to commit wrongdoing with no fear
of recourse or personal liability on the part of military
officers, military medical personnel and staff, and private
defense contractors. This will make our military a better,
safer, more humane system and help to restore the basic rights
of all military personnel as guaranteed by the Constitution
of the United States, We want our military to "be the best
that it can be!"
The original intention of our Founding Fathers was never
made more clear than in their own words:
"We hold these Truths to be self-evident, that all Men
are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among
these are Life, Liberty, and the Pursuit of
Happiness -- That to secure these Rights, Governments
are instituted among Men, deriving their just powers
from the Consent of the Governed; that whenever any
Form of Government becomes destructive of these Ends,
it is the Right of the People to alter or abolish it,
and to institute new Government, laying its Foundation
on such Principles, and organizing its Powers in such
Form, as to them shall seem most likely to effect their
Safety and Happiness."
PAGENO="0033"
29
We strongly feel that our government must now take under
consideration and promptly act to restore to our military
personnel their unalienable rights, among which are life,
liberty and the pursuit of happiness, that has been taken
from them unjustly by the Uniform Code of Military Justice
and the Feres Doctrine.
WE CAN NO LONGER ALLOW THE ABUSES OF THE PAST. WE MUST
TAKE ACTION NOW TO RESTORE TO OUR MILITARY PERSONNEL THEIR
RIGHTS UNDER THE LAW OF OUR LAND AND THEIR UNALIENABLE RIGHTS
AS RECOGNIZED BY OUR FOUNDING FATHERS. OUR MILITARY PERSONNEL
AND THEIR FAMILIES CRY OUT NOW FOR JUSTICE -- THEY DO NOT
DESERVE WEAT IS HAPPENING AND HAS
THE ABUSES OF THE PAST WILL NOT BE ALLOWED ~ö CONTINUE IN TIE
Respectfully submitted,
OSEPH CONNERS, President
Concerned Americans for Military
Improvement (C. A. M. I.)
51-768 0 - 92 - 2
PAGENO="0034"
30
[The prepared statement of Ms Friend follows]
THE FERES DOCTRINE AS IT RELATES TO INJUSTICES
by Peggy D Friend
The Feree Doctrine alleges that the duty and loyalty that
service members owe to their service and the country may not be
undermined Incident to service has been defined to mean the
management of the military, namely, "direct impact on military
discipline
What about the loyalty that the country owes to the
servicemen? ~ government undermines its servicemen Shouldn t
incident to service be defined as the ~management of the
military?
The treatment our military men and women receive from the
government and specifically from military medicine uiid~ermines
military discipline more than anything else Who can respect the
hand that stabs him?
My focus here will be not only on the unfairness, the inequity
of the Feres Doctrine, the unconstitutionally of the Doctrine, but
the apathy of the U S Congress in its refusal to legislate a
change The courts continue to apply Feres to bar all actions
against the Government based upon service~related injuries
To dismantle the Feres Doctrine little by little would only
serve to perpetuate, longer, an injustice to the American
servicemen, to drag out and get bogged down in legal red tape what
is already an atrocity. Instead, it needs to be razed all at once,
immediately, and a whole new system of justice for all be
resurrected. The doctrine in its present form perpetuates a kind
of caste system within our judicial system one for civilians and
one for our military The reasoning for its being is so asinine as
to be without rhetoric to describe it However, I shall try
Despite dissenting opinions which attack the validity of
Feres three traditional rationales," the doctrine still reigns
supreme, therefore, the military still reigns supreme It is
designed to "protect military discipline and the military s
constitutional accountability to the public " Well, not at the
expense of my son s life, it doesn ti
Over the past forty years, servicemen and their families have
become increasingly dissatisfied with the Feres Doctrine and all
of its ramifications. This doctrine and what it bars has probably
done more to turn around the lives of thousands than the wars in
which many of the victims fought
The doctrine in its present state needs re~examining for the
grave injustices that it has allowed, for the second clae~
citizenship that it has relegated our servicemen to Victims of
negligent acts and medical malpractice which have led them and
their families to debilitating mental and physical injuries, and
worse, desth, need restitution for peace of mind, for human
kindness, and for the justice that is owed them, for the justice
that is promised them by the U S Constitution
PAGENO="0035"
31
2
The underlying argument of the Feres Doctrine is the fear of
discipline raging out of control unless some bare are instituted,
notwithstanding that those bars constitute cruel and inhuman
treatment and !~flequal justice. For want of a better reason, the
government hides behind those bare and in so doing, releases its
rei.an of terror.
How can the government justify as "incident to service,"
tiie~ negligence that leads to an injury, ~ medical malpractice
that leads to death? How ~ they play Godi
The point that is being lost is that if an injury arises out
of or during the course of an accident "incident to service," ~
should be separated from and handled differently from an injury
and/or death that results due to negligence ~ medical
malpractice. These things are ~ "incident to service;" they are
the faults of others and should be treated as such as in the
civilian sector.
How can the helplessness and the vulnerability of a
hospitalized serviceman be categorized as "incident to military
service?" He's not doing anything not flying a plane, not
manning a ship, not driving a tank. He is lying in a bed at the
mercy of someone else who is careless, incompeter~, apathetic, and
gliq~. There is ~ rationale in Feres that can support ~
scenario.
As some will argue, my songs injury was sustained "incident
to service" because he was engaging in the last hour of physical
training as a recruit, but his ~ was caused by medical
malpractice and previous negligence and apathy of the military in
ignoring the availability of literature on the high risk factors of
~ (Sickle Cell Trait) carriers in the basic training program
by ignoring negatives in the training program; by failing to follow
already mandated DoD policies.... None of ~ is incident to
service I
It appears that military judgments and decisions are neither
to be questioned nor undermined in any way, even though some of
those decisions, just simple basic orders and mandates, if enforced
and adhered to, would save a life. At this point I am not
referring to the "biggies" such that might affect national
security. I am talking about nctiiaving a trained medical corps~
owsi~ when my son collapsed. DoD ~ mandated this. Having one
there could have saved his life his J.j.j~I
Obviously, risk is no longer on the battlefield in combat, in
time of war; risk is now on the training grounds, at the lowest
level of military life, that of the recruit in training. Risk is
now in the hospital when man is often at his lowest physical and
mental levels, when he is in a state of helplessness; when he can't
fight back.
The effects of lawsuits on military discipline have yet to be
explained to the satisfaction of the people who ~, have been, and
will be victimized. The explanations by the government are just
empty words to them.
What was the status of military discipline in terms of its
respect by servicemen befo~ç Feres? It is j~ easier to accept an
PAGENO="0036"
32
3
established law than it is to institute a change, even to admil
that a change is in the best interest of humanity This is what
has happened with Feres Thai is how the supporters of the Feres
Doctrine feel
The government tries to make it as difficult as possible to
recover. There is the Feres Doctrine which ~ recovery
impossible, and there is the Veterans Administration, with its
benefits to appease or deny if a serviceman cannot prove his injury
to be or to have been service related, the statute of limitations
which runs out before the claimant has had sufficient time to
research his case or if witnesses have jgj~g since had their
memories clouded by time Justice? Justice should be made of
sterner stuff
The quality of mercy is not strained It droppeth as the gentle
rains from Heaven/ on the earth beneath I want to feel the
gentle rains of )ustice, n~ the raging storm of the Feres
Doctrine
In today s economy, $50,000 00 and for some, $l00,00 00 is
little conpared to the life-time expected earnings of a person. It
does not adequately provide for a quality of life inherent in
today s society Remember that most of these men and women are
young, in the prime of their life; some who have young children
who, too, must be provided for. Then there are the y~g wives who
"take the money and run," leaving no avenues open to the broken-
hearted parents who want to learn more about how their son died and
who cannot expect any help from the powers that be who coldj,y ask
- Are you the next of kin?
One of the factors that underlies Feres is that the no
fault/life compensation scheme provides generous pension to in)ured
servicemen Now, ~ are they calling generous?
A seriously disabled serviceman has to have round-the-clock
care, medicines, therapy, he experiences loss of income, and
experiences emotional trauma which might mean psychiatric
consultation Some disabilities are severe enough to cause its
victims to be introverted because of the nature of the disability
We have all heard of disabled veterans who lose their grip on life
and kill their entire family Then there is the total and/or
partial dependency for transportation, and the list goes on
If the government is sincere in wanting to provide a aenerous
pension, since Feres interferes with a straight-out suit, then let
the government pay for ~JJ~ medical care, for ~fl transportation -
whatever it entails, let the aovernment pay beyond high school for
his children, improve his quality of life to the highest degree,
and th~ii give him a monthly check for any and ~JJ. other luxuries
that he might, otherwise, have had the opportunity to have if the
military had not, through its negligence and medical malpractice,
so cruelly taken away There is no justification for anything in
Feres if it destroys a man s life And, of course, the ultimate
destruction is death!
Congress can enact legislation to allow servicemen to bring
suit against the government for medical malpractice, but it has not
done so in the forty plus years of its articulation
PAGENO="0037"
33
4
No segment of a democratic society should be so specialized
that it becomes free from aoo~ountability and liabilij~y. That is
bordering on absolute power, and "absolute power corrupts
absolutely."
And Congress is like an ostrich with its head buried in the
sand. It sees and it doesn't see; only what it wants to see; only
what it wants to hear.
I keep reading that Congress could not have inten~~ that
local tort law..,. that Congress could not have intend~ to make
FTCA suits available to servicemen who have already received
Veterans' benefits to compensate.... Congress should have been
specific as to its intentions regarding a law that would ultimately
affect so many lives. It was a decision with little or no
foresight. It was a decision of "Let them eat cake."
After all, we were not involved in a war. The statute was clear as
to combatant situations. ~ they had not counted on so many
negligent deaths in peacet$~ nor had they counted on the
intestinal fortitude of the victims and their families to question
those deaths, After all, this is the United States Armed Forces,
above reproach; ~ is the Imperial Congress!
The FTCA does z~ unlock the chains of sovereign immunity for
servicemen, but ~j)j. allow civilians to recover for injuries caused
by military negligence. Though civilian negligence suits are not
always won, at least the plaintiffs have the opportu~,~,y of a
trial, an opportunity to present evidence, an opportunity to hear
sides. Feres bars ~JJ. this in military negligence. How's ~b~t for
truth, justice, and the American way!
If the American public were made aware of the Feres and the
FTCA in their present language, it would agree with me that
Congress is not administering to legislation that would benefit ~JJ1
of its citizenry, and the Supreme Court is supporting Congress.
There are many Americans who will never be affected by Feres,
but I believe that the people who will j~ be affected, who cannot
be affected ~, but who ~.jfl ~ affected later, would like to know
how their elected officials think and legislate in "their best
interest" for children yet unborn. They need to be prepared when
their whole world is turned upside down because some trusted
officials prefer to bask in the limelight of money, prestige, and
power; to walk along the path of lies and deceit, than to bathe in
the "milk of human kindness" and decency.
In 1988, I conducted a Senatorial Poll of all 100 Senators to
determine each Senator's stand on S2490, the bill, at that time, to
amend the Feres Doctrine. Out of 100 Senators contacted, only
thirteen responded, and some of those thirteen were non'conunittal.
Needless to say, I was totally disappointed at such a small
response and my mind went back to the night I stayed up typing,
addressing, and stamping J~j~ envelopes for the form letter.
On 17 June 88, I testified at Hearings before the Subcommittee
on Courts and Administrative Practices. My speech, focusing on the
death of my son in the Navy in 1986, was well planned and well
received to a point. On 28 June 88, the bill in question was
referred to the Subcommittee on Courts and Administrative
PAGENO="0038"
34
5
Practices. !th~ are they doing at the Imperial Congress? As far
as I understand, there is a specific route that a bill must take
before final passage, but the bill must be approv~4 by the Senate
Committee on Armed Services be~fo~ the full Senate gets a chance to
vote. Therein lies the step "to catch the conscience of the king."
Since the bill always dies in sub-committee, it appears that
it is the Judiciary and Armed Services Sub-Conunittees (Courts and
Administration and Manpower Personnel) who are making the fj~J1
decision about the bill.
The bill doesn't even get a oh~ncQ to go to the full Senate
for a vote, for if it did, it just might pass. This is the
strategy of those powerfuj1 committees and they need to be ~topp~.
Who makes up the membership of the sub-committees? That's
too much power in the hands of so few. We will ~ see the
passage of S2490 or S347 or any other bill that will support our
servicemen, that will afford them their constitutional rights
unless some significant pressure is placed on the sub-committee
members. And supporting the sub-committees are the powerful Senate
Armed Services and the Judiciary Committees.
For the past five years, I have lived withjn the shadow of,
within the clutches of these "powerful" committees and I am getting
tired of the power they are welding.
Whenever a bill goes to any subcommittee and/or full
committee, there should be a ~JJ, and expe~itio~ investigation of
every member on that committee to determine if t here are conflicts
of interest, either political, business, or personal. This should
be especially true in light of the ~ tim~ these committees in
question have allowed the ~ bill to die in committee.
"Something is rotten in Denmark."
Elected government officials are expected to represent ~
the American people, civilians ~ military, j~y, putting aside
their own personal gains, deflating their own power-hungry egos,
and relying more on intelliaenç~ and person~J~ intearj~y.
I had the opportunity to talk to a retired Justice with
reference to Feres. He said "a suit based upon service-
related activity necessarily implicates the military judgment and
decisions that are inextricably intertwined with the conduct of the
military mission, Moreover, military discipline involves not only
obedience to orders, but more generally, duty and loyalty to one's
service and one's country." A very defined support of the
military's thinking. However, ~ loyalty should be a matter of
choice, not a matter of intimidation. And the military ç~ and
~ intimidate.
They let stay on the statute books for forty years, a law that
perpetuates a blatant injustice to those who stand ~ to protect
and defend our country, and yes, even those die-hards who are a
part of this country, and who themselves have served this country,
and are perpetuating that injustice when they have the power to
change it, Yes, Congress, y~ are providing "the most unkjndest
cut of all."
I imagine that every time there is a Hearing to support
PAGENO="0039"
35
6
passing an amendment to Feres, there is a Department of Justice
spokesman ready, in "cloak and dagger" fashion, to deliver the
fatal wound.
I met my executioner on 17 June 88 when I testified at the
Senate Hearings and I am ~UJJ~ angry. As far as I was concerned,
the validity of her argument was ~ gareless, and totally
devq~,4 of human compassion,'fairness, and equality factors upon
which our system of government is based.
It is not so much the monetary compensation that is in
question here, but the battering ram of what is fair. Even the
a1j~n in our country can sue.
My nemesis on 17 June was Kathleen Buck, distinguished DoD
General Counsel who argued that "the relationship between members
of the Armed Forces and their superiors is genuinely unique with no
analogous civilian counterpart."
I beg to differ with her rationale. The analogous civilian
counterpart is notable in several words: The members of the Armed
Forces are also, like their oivili~g oounterparts, members of the
human race, thereby, entitled to the same rights. "Less we
forget... .forget.. . forget."
I wish someone would tell me just what j~ this ~ differençç
between the civilian man and the military man that leaves one of
them vulnerable, to the military health care providers. Are those
providers not bound by the ~4H~ professional~ and mediàal ethics
that all other physicians are to uphold the Hippocratic oath in
the practice of medicine? Do they recognize the serviceman as a
human being?
The military and the "powers that be" continue to say over and
over that litigation in a medical malpractice case will have a
"disruptive effect on military discipline" or some other such
rhetoric, but as forwardly as they impugn these dictates to us,
they as torceful~y avoid stating ~ these "disruptive effects"
are. It is not a select few who need to know this; it is the
American people who need to know.
I don't care how many ways DoD and Justice say it, how many
ways Congress and the Supreme Court say it, how many arguments they
~j]~ present in favor of Feres, they cannot convince me nor the
thinki~q American public that they are right. The sad thing,
however, is that we can't do or haven't been able to do anything
about it not y~t,
So, why do they bother to argue their case in Hearing after
Hearing? Is it just to say that they've presented the American
public with "reasons" why tba~ think Feres should remain in tact?
Maintaining Fetes in its present state is the same as maintaining
military medical care in j~ present state overall the active
duty serviceman loses in kQ~J1 instances.
The "powers" have made and are still making a lot of eloquent
statements that they believe will not be questioned, but I ~
questioning them. I am questioning erroneous medical judgments and
I am challenging them to examir~ and ~ them. They ~ made.
I am challenging them to tell the American people exactly ~by the
members of the Armed Forces have fewer rights than their civilian
PAGENO="0040"
36
7
counterparts, than a prison inmate, than an alien. No military
double-talk, just plain English.
It is the argument, the "rationale" that has been used to
support the Feres Doctrine that I am also questioning. Now Ms.
Buck presented several hypothetical cases in support of her
argument for the Feres rationale. She intimated that subjecting
decisions to "judicial scrutiny" concerning their medical basis
will have a negative impact on military discipline and "could see
medical personnel and commanders hailed into court to justify their
decisions!"
But isn't that what our system of jurisprudence all about to
protect the constitutional rights of its citizens? Isn't th~i~ what
our coutts are suppose to do if there is a question about whether
a law has been broken or "tampered" with? I don't care how much or
what ki~ of rationale she offers to "support" what she and the DoD
contend. It is ~9.D.9' and ~ to use their word, undermines the
constitutional and the ~ rights of our servicemen. IJi~ also
undermines, the individual duties of the three branches of our
government.
No matter Eh.~ the proposed amended MCA (Military Claims Act)
would create, that is if DoD allow~ it to create anything for the
adequate benefit of the U.S. serviceman, it still, in retrospect,
would not compensate for the injuries and the deaths that have
already occurred under the "protection" of the Feres Doctrine.
The "powers" are acting as if Feres is written in stone, but I
contend that Feres is written with the blood sweat and tears of all
servicemen who have fallen under its clutches.
Bow do you explain to the parents who have lost children, to
the children who have lost parents, to the women who have lost
husbands - that their government allowed careless health care
providers to get away with murder? How. do teachers teach their
bright young classes the principles of a democracy and how
fortunate they are to live in the U.S. ~ those principles,
when, in a few years, those very students may become victims of
that "democracy." It is frightening and it is !~.
I am well aware that the "deterrence" theory referred to by
Ms. Buck in her testimony will not work any more in the military
sector than it does in the civilian sector. Our civilian prison
system can attest to ~ But the "immunity" theory given to
military physicians will not work either because it gives them a
"license to kill" without ever having to contend with any kind of
retribution. ~ is the ultimate in mockery.
The watchwords - "quality assurance" and "provider
accountability" used by Ms. Buck are much military jargon that is
"full of sound and fury/Signifying nothing."
In Ms. Buck's conclusions, there was one point that stood out
as a mechanism for ridding the military of incompetent physicians
and/or health care providers, and at the same time, laying a'firnt
foundation for deterring others who want to join the ranks of.the
distinguished physicians who can practice their chosen profession*.
without fear of patient reprisal. That point was "holding
physicians accountable for their actions."
PAGENO="0041"
37
8
If the amended MCA ~ and ~jj~ do that, then maybe the active
duty serviceman and the disabled veterans can see the light at the
end of the tunnel. For now, ~eres is the huge stone at the
tunnel's opening.
If the Department of Defense fears the negative impact of
litigation on our fighting forces; if it fears the disruption of
morale and discipline; if it fears that trust will be undermined,
then let it foster ~ puah for whatever other remedy that will
nullify their contentions. Right now, they are doing n~th~g.
Whereas immunity under the Feres Doctrine has unleashed many
incompetent service doctors to continue practicing in the military
hospitals and eventually into the private sector, perhaps, if
before leaving the military, some of the wide range of sanctions
can be taken against them, it might serve as a catalyst for their
being more careful. No one wants, least of all a doctor whose job
it is to j~ lives, a record of being unduly careless, wants a
record of malpractice against him. Of course if he stays in the
military, he's ~ and protected.
No matter what kind of legislation if finally enacted -
whether it is to maintain the status quo (Feres intact) or whether
it is to amend the MCA to include medical malpractice to extend to
~fl servicemen, everywhere, the bottom line is that some ~
direction must be given to those who are direct~y involved in
administrative negligence, and in medical negligence and
malpractice.
There are two exceptionally important points here - looking
into providing additional compensation for those who have been
injured and/or who have died because of medical malpractice, and
addressing aocountabilit~. There should be ~ faltering when it
comes to addressing, yj~ p~sitively, both issues.
One of my greatest concerns is that "the powers that be" will
see through the bureaucratic mess the military has created in the
name of "incident to service," will see the apathy and
procrastination of Congress and DoD, and will not lose sight of
other impending tragedies (and there ~j,fl be more) if more
concerted efforts are not made to correct uriequa~ military
practices.
If there is a set of laws, or a doctrine in place that
guarantees life and liberty, one that guarantees defense for every
man, one that guarantees civil liberties for all, then ~ are
the laws and doctrines that should govern our lives, not the Feres
Doctrine that perpetuates the ultimate in injustices.
Do you really think the serviceman in the tropical-like
jungles of Vietnam, or on the desolate hills in Korea, or on the
hot, barren plains of Saudi Arabia were overly concerned about the
possible "disruption of military discipline?"
Yes, he learns those things in basic training, but as in any other
learning situation, it is laid aside until it is needed. "Out
there," no matter what military principles say, it is the survi~j~
that he is most concerned with.
Ask any serviceman who has been in combat and who has fought
the enemy if, in the face of a personal attack or an attack on his
PAGENO="0042"
38
9
fellow serviceman, that his first thoughts are of whether or not
his decision to act or not to act is going to undermine a move that
would be "ineffective to military service."
No. And it doesn't take a commander versed in all military
expertise to figure that one out. There are basic drives that all
human beings respond to, and the first is self-preservat~~. If he
has time to thJ,n~ç - yes, he just might think about those little
archaic "concepts" of discipline," designed more to protect his
suPeriors than himself, but in the face of whizzing bullets, or a
decapped hand grenade, he ~ in the face of fire, military
discipline (whatever that ~ when your life and the life of your
friends are in danger) becomes irrelevant to him. Tb~ is the law
of survival. It should neither be dispelled nor taken lightly.
My many years as a school teacher taught me that too rigid
discipline leads to conflict, and ~ can undermine efficiency
quicker than anything else. In this vein, Feres is a fa~~çy.
The military, by denying servicemen their constitutional
rights, itself is failing to uphold j~ oath to "support and
defend" the Constitution, In ~ vein, Feres is p fall~çy.
The language of Feres allows the military to violate a
serviceman's rights. The language of Feres, which disallows the
serviceman from seeking monetary recourse for negligence and
medical malpractice allows the government billions of dollars to
support a multitude of nonessential projects.
The message, then, the government is sending out is this:
Give them the Veterans' Benefits, a pat on the back, and its
business as usual "0 What a tangled web we weave...."
Remember Marie Antoinette, the infamous Queen of Louis XVI of
France, who, in response to the misfortunes of the French peasants,
said, "Let them eat cake." Remember what happened to her? Fe~
isafall~çy. It is immoral; it could be potentially dangerous.
The bottom line is that Feres is a "loaded gun" aimed at the
American serviceman.
The military respects, supports, and executes its Military
Code of Justice, yet, it disregards the U.S. Constitution in terms
of the fundamental rights promised to ~JJ1 American citizens.
"Something is rotten in Denmark."
If Feres is ailo~4 to stand, forever, in its present form; if
the Military Code of Justice is allowed to challenge the dictates
of the U.S. Constitution; if ~y U.S. government officials
(specifically Congress) are allowed to fail to observe and adhere
to the laws of the land, and if military medical personnel are
allowed to "kill" helpless servicemen, then the integrity of our
government becomes a mockery,
The word - rniUt~y implies force, even hostility; it
implies strength and authority; ~ it demands respect. All this
is expected to be in place when and if war is waged against a
foreign force, but that streng~, that fo~ce, and that authori~,y
should jjQ~ be used to wage war against its own people. Ironically,
~jj~ is what Feres perpetuates, and in so doing, allows the
government to reiq~ supreme.
In our courts system, there appears to be too much concern
PAGENO="0043"
39
- 10
about the "risk of erroneous judicial conclusions beclouding
military decision making," and this type of "gray matter"
conclusion, while supporting the "incident to service" test, is
denying the American principle of equal justice to all. It's
paradoxica'.
The courts need to become stronger and less intimidated by the
military. If the Supreme Court does not stand stronger in its
convictions and its obligation to interpret the laws of the land,
if the U.S. Congress does not pass legislation that will protect
the rights of ~fl Americans, if the milit~y does not stop trying
to be omnipotent, then ~jj~ of these "institutions" of justice and
fairness will fail, and with them, the United States of America.
Let me say ~, that when I use the word, military, I am not
chastising the "fighting men" of our Armed Forces who are not at
fault here we must have leaders ~ followers, and more often
than not, those fighting men are victims. What I ~ questioning
are the ~ techniques of the gommand ~ those who are
makJ~pq the decisions and giving the orders.
How can the military expect the servicemen to give his ~fl to
the protection and the defense of his country when it denies hi~
his constitutional rights? No amount of rhetoric can justify ~
No amou~. It's a tale of human bondage.
Despite all that I have concluded here, I ~ believe that
military decisions should be highly respected ~ followed in times
of war, but I am totally against "blind obedience" to ~ decision
in war ~ peace.
And most importantly, I am against disallowing any challenges
to military decisions that totally disregard the fundamental rights
of our servicemen. It puts ~ at risk, and it puts our nation at
risk.
I have read countless definitions of "rights" and whatever
rhetoric has been attached to that word (insi~q~~ from "experts"
who have insights based on ~jj~j~ experiences and how tb~ perceive
the world), but the ~ fundamental, human, God-given rights of
every man and woman in American, as outlined in the Declaration of
Independence and expounded in the Constitution, the rights that the
military is exploiti~q and Congress is aflowi~q, are `the rights
that ~ am concerned about.
These men and women's lives are governed by Feres and the
Military Code of Justice - both of which they know nothj~g. They
really think they're protected by the Constitution, based on what
they learned in Government 101. What a rude awakening when they
rea~y learn that despite the cohesive framework of the military,
they walk the path of injustice alone.
PAGENO="0044"
40
Mr. FRANK. We will now begin with Mr. Gerson.
STATEMENT OF STUART M. GERSON, ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. GERSON. Thank you, Mr. Chairman.
In a sense, my testifying today could be held to be somewhat
anomalous because, notwithstanding what we have just heard, the
Justice Department's essential role in Feres cases as well as any
case of alleged medical malpractice in the military is as attorney.
The policy position we voice in litigation, which is the policy posi-
tion we voice here, is necessarily dependent upon the consider-
ations as to which we are instructed by our client, the Department
of Defense. However, it is a policy position that I can endorse and
explain as a manager of litigation and, by analogy, to a prevalent
model in the private sector, workers' compensation, which operates
usefully and successfully.
Given our longstanding, mutual commitment to respect each
other's time and intelligence, I shall not recapitulate the history
and law of the Feres doctrine; there is ample discussion of that in
my written testimony which I ask to be made part of the record.
Mr. FRANK. It will be made part of the record if there is no objec-
tion.
Mr. GERSON. I am sure that you know the law on this matter and
recognize its consistency, and that is, no doubt, why you and the
sponsors and the cosponsors want to repeal it legislatively.
Similarly on questions of policy-that is, the promotion of con-
sistency and discipline in the uniquely Federal context of the
Armed Forces-these, too, are discussed at length in my written
testimony, and I suspect you would rather hear from the client
than the lawyer on that subject, and Mr. O'Donnell will discuss
those things at some length and has the backup of able members of
the military.
Similarly, I'm not going to spend a lot of time focusing on some
of the inherent contradictions that the bill would require, contra-
dictions such as the coverage of persons injured by malpractice in
domestic hospitals, the denial of coverage to persons otherwise
identically situated and injured who are on hospital ships at sea or
who are in facilities overseas. Even more contradictory, in my
view, is the favoring in compensation of personnel who have suf-
fered real or alleged malpractice injuries over those who have been
injured in battle.
These contradictions are profound, but they are also obvious.
Your bill, no doubt, represents what you think is politically possi-
ble, and so I shall simply argue that the contradictions support the
military's position on consistency and suggest that a broader bill
would have vast and unacceptable fiscal consequences as well.
Thus, I turn my attention to what I think I am most qualified to
comment on. Putting aside the poignancy of individual cases-and
I fully subscribe to the statement that you made with the last live
witness that everybody is sympathetic and respectful of the cour-
age of anybody who comes here and talks about those individual
cases-I am not here to justify any particular cases. I am here to
talk about a larger system, and that larger system compensates not
PAGENO="0045"
41
only victims of malpractice and their families but victims of all
injury as well, both in the medical area and otherwise, and pro-
vides to the individuals injured a lifetime of care and to their fami-
lies benefits of the kind that some of the family members who are
here actually receive.
We think that that contributes to a discipline and consistency
that so thoroughly characterized the conduct of our military in the
Persian Gulf that led not just to tactical and strategic success but
to success at relatively low cost in human life. Given the counter-
vailing benefits that the present system provides to the victims of
injury and not just to those victims of medical malpractice, one is
extremely reticent either to question the military's assessment of
its needs or to tamper with its effective working relationships.
There is a significant difference that I would readily concede be-
tween the military's approach to malpractice and prevailing modes
of workers' compensation. Both involve issues of injury that em-
ployers compensate essentially on a no-fault basis, but of course in
a workers' compensation mode you are not dealing with malprac-
tice cases generally. What I think counterweighs in favor of the
military's position is the absence of any requirement to prove any
negligence at all, the treatment of injuries across the board, and
the extent of the compensation system.
All in all, given the needs of the military and its demonstrated
success, I respectfully suggest to you, Mr. Chairman and to the
other members, that this is a method of compensation which ac-
cepts a national need and provides a benefit without some of the
discontinuities of the tort system into which you would inject the
claimants.
We know from the Harvard study of medical malpractice that
the current regime neither is a good identifier nor a particularly
good deterrent of malpractice, that many cases of malpractice
never get into the system because lawyers won't take the cases, the
damages aren't glorious enough.
Under the current system, given the quality control, given the
other things that the military has imposed, all those individuals
are compensated, maybe. not at the level that some might have it,
although I note that even your bill limits what is the most signal
alleged benefit of the private tort system which is the recovery for
noneconomic pain and suffering damages; your bill addresses that
and limits that. Without that tradeoff, there is even less of a
reason to change if you look at the arguments made for change.
Let me rest on those points and answer whatever questions come
up and defer to Mr. O'Donnell on questions of military consistency,
necessity, and discipline.
[The prepared statement of Mr. Gerson follows:]
PAGENO="0046"
42
PREPARED STATEMENT OF STUART M. GERSON, ASSISTANT ATTORNEY GENERAL, CIVIL
DIVISION, U.S. DEPARTMENT OF JUSTICE
I am pleased to appear before the Subcommittee today to
present the views of the Department of Justice on H.R. 3407, a
bill that would allow active duty members of the Armed Forces to
sue the United States for damages for certain injuries caused by
improper medical care.
H.R. 3407 would permit claims against the United States
under the Federal Tort Claims Act for the personal injury or
death of a member of the Armed Forces serving on active duty when
the claim arises out of medical or dental care furnished in
medical facilities operated by the United States. If enacted,
this proposal would essentially overrule a sound, long-standing,
and viable rule of law known as the Peres doctrine for certain
military medical malpractice claims. The Department of Justice
is strongly opposed to this legislation and we would be compelled
to recommend Executive disapproval if it were presented to the
President.
Before I address the ~ doctrine and H.R. 3407, I want to
comment about the impressive action the Department of Defense has
initiated to improve the quality of care to our soldiers.
Beginning in the late 1980's, all military hospitals have
screened the medical records of all patients to determine if the
treatment should be more closely reviewed to identify instances
of poor medical care. The screening is performed on a criteria-
based monitoring of patient care. For example, a patient who is
readmitted to the hospital within 48 hours of discharge would
cause the medical record to be flagged and `a senior physician
would closely review the recQrd to determine if the first
PAGENO="0047"
43
discharge was premature. This occurrence screening system is
used for all patients including all service members. Each
military hospital also has a quality assurance committee charged
with conducting a complete audit of at least 5% of medical
records of patients discharged each month. The records are
reviewed pursuant to checklists designed to determine if the
medical decisions made in the care of patients were correct.
In 1987, DOD hired a civilian contractor, Forensic Medical
Advisory Service, to review the quality of medical care in
military hospitals during a two year period. During the study,
the contractor found that the percentage of cases where the
medical care was substandard was less than 2% and there was no
statistical difference between the care provided to service
members and all other patients.
At present, DOD is conducting a study of the medical records
of service members recommended for discharge by their commanders
due to medical disabilities. The study is intended to determine
if service members suffered disabling injuries as a result of
negligent medical care.
The Department of Defense is also a participant in the Joint
Commission on Hospital Accreditation's Agenda for change. A
major component of the Joint Commilsion's Agenda for Change
involves creating a data-based performance monitoring mechanism
for accredited healthcare organizations. Through this process
hospitals will routinely collect a limited set of Important
clinical and organizational process and outcome data, send them
-2-
PAGENO="0048"
44
to the Joint Commission, and receive back aggregate, comparative
data. Several DOD medical facilities were asked by the Joint
Cor~iission to participate in developing the parameters for the
monitoring system.
The Feres Doctrine
Since H.R. 3406 would so directly impact upon the ~
doctrine, a brief explanation of the doctrine and its
underpinnings is in order. The doctrine derives its name from
the case of Feres v.. United States, 340 U.S. 135, which was
decided by the Supreme Court in 1950. In Feres and its progeny,
the Court has held that members of the uniformed services cannot
sue the federal government, other service members, or civilian
government employees in tort for injuries which arise out of, or
are incurred in the course of, activity incident to military
service. The Court relied upon three principal reasons in coming
to its decision:
(1) The existence and availability of a separate,
uniform, comprehensive, no-fault compensation
scheme for injured military personnel;
(2) The effect upon military order, discipline,
and effectiveness if service members were
permitted to sue the government or each
other; and,
(3) The distinctly federal relationship between
the government and members of its armed
PAGENO="0049"
45
services, and the corresponding unfairness of
permitting service-connected claims to be
determined by nonuniform local law.
It is important to understand where the ~ doctrine fits
into the body of law that governs tort suits involving the United
States. To start with, the United States, as sovereign, is
immune from suit unless it has consented to be sued, United
States v. Sherwo~, 312 U.S. 584 (1941). Further, the United
States may define the terms and conditions upon which it may be
sued. Soriano v. Uniteç~ Stat~s, 352 U.S. 270 (1957). The
Federal Tort Claims Act (28 U.S.C. §~ 1346(b), 2671, ~
constitutes a waiver of sovereign immunity, with certain specific
limitations. United States V. Sherwood, ~; Carr v. Vetera~
Administration, 522 F.2d 1355 (5th Cir. 1975); Ct~ilders v. Unite~
States, 442 F.2d 1299 (5th Cir.), cer~ denj~, 404 U.S. 857
(1971); Simon V. United States, 244 F.2d 703 (5th Cir. 1957).
With Fer~ and its two companion cases, Jelierson v. Unite4
Stat~, 178 F.2d 518 (4th Cir. 1949), and Grigas v. Unite~
Stat~, 178 F.2d 1 (10th Cir. 1949), the Supreme Court was called
upon to determine whether the Federal Tort Claims Act was
intended to waive that aspect of sovereign immunity which
concerned the relationship between soldiers and their government.
The common fact underlying each case was that the injured person
was a service member on active duty, who sustained injury due to
the action or inaction of others in the Armed Forces. I
specifically note that two of the cases concerned allegations of
-4-
PAGENO="0050"
46
medical malpractice. Reflecting upon the body of law from which
the Federal Tort Claims Act carved a limited exception, the
Supreme Court stated:
We know of no American law which ever
has permitted a soldier to recover for
negligence, against either his superior
officers or the Government he is serving.
340 U.S. at 141. It concluded that, "the Government is not
liable under the Federal Tort Claims Act for injuries to
servicemen where the injuries arise out of or are in the course
of activity incident to service." j~. at 146.
The holding of ~ç.~es has been broadly and persuasively
applied by the courts and has now stood for 41 years without
either legislative or judicial alteration. It is even stronger
today as a result of the reaffirmation of its rationale by the
Supreme Court in United States v. Johnson, 481 U.S. 681 (1987),
and the Court's decisionS in United States v. Stanley, 483 U.S.
669 (1987); United States V. Shearer, 473 U.S. 52 (1985);
Chappell v. Wallace, 462 U.S. 296 (1983); and Stertcel Aero
Engineering Corp. v. United States, 431 U.S. 666, r~t'a denied,
434 U.S. 882 (1977). These cases recognize that the policy
underpinnings of the Perez doctrine are as valid today as they
were in 1950.
The first of the three reasons or policy factors underlying
the Perez doctrine is the availability of a viable alternative to
damage suits in the form of a comprehensive statutory
compensatory scheme. In ~ the Supreme Court stressed that
the Federal Tort Claims Act "should be construed to fit . .
PAGENO="0051"
47
into the entire statutory system of remedies against the
government (and thereby create) a workable, consistent and
equitable whole," 340 U.S. at 139, and that it was thus highly
relevant that Congress had already provided, "systems of simple,
certain, and uniform compensation for the injuries or death of
those in the Armed Services," 340 U.S. at 144.
The present statutory compensation scheme has three discrete
components. First, members of the uniformed services serving on
active duty receive free medical care when injured or ill. ~
~ 10 U.S.C. §~ 3721, 6201, and 8721. They also receive
unlimited sick leave with full pay and allowances until well or
released from active duty. Survivors of service members are
entitled to death gratuity benefits (10 U.S.C. §~ 1475-1482, p.
L. 102-25), as well as partially subsidized life insurance. io
U.S.C. §~ 1447, ~ ~ 38 U.S.C. §~ 765, ~
Second, Congress has established a comprehensive disability
retirement system for service members permanently injured in the
line of duty. ~ 10 U.S.c. §~ 1201 and 1401. Moreover, should
a service member leave the service without seeking disability
retirement, he may later request it. For example, § 1552 of
Title 10, United States Code, provides that the Secretary of the
Army, acting through the Army Board for the Correction of
Military Records (ABcMR), may correct any military record when he
considers it necessary to correct an error or remove an
injustice. This authority has often been used to provide former
service members who demonstrate that they suffer from a permanent
PAGENO="0052"
48
disability as a result of a service-related injury, with a
retroactive, permanent disability retirement annuity and even
back pay. See 32 C.F.R. § 581.3(b)(2) (1987): Sec. 4, A.R. 15-
185.
Third, the Veterans Benefits Act provides yet another system
of medical care, disability and death benefits for the service-
disabled veteran and his family.1 (A veteran eligible for both
veterans disability benefits and military disability retirement
benefits must choose which he will receive.)
The Stencel case emphasized the quid pro quo of this workers
compensation-like remedy:
A compensation scheme such as the
Veterans' Benefits Act serves a dual purpose:
it not only provides a swift, efficient
remedy for the injured serviceman, but it
also clothes the Government in the
"protective mantle of the Act's limitation-
of-liability provisions." [Citation
omitted.] Given the broad exposure of the
Government, and the great variability in the
potentially applicable tort law, see ~gs,
340 U.S. at 142-143, the military
compensation scheme provides an upper limit
of liability for the Government as to
service-connected injuries.
~ 38 U.S.C. §~ 301-362: Compensation for Service-Connected
Disability or Death.
38 U.S.C. §~ 501-562: Pension for Non-Service Connected
Disability or Deat,h or for Service.
38 U.S.C. H 401-423: Dependency and IndemnityCompensatiOn
for Service-Connected Deaths.
38 U.S.C. §~ 601-654: Hospital, Nursing Home, or
Domiciliary Care and Medical Treatment.
38 U.S.C. §~ 701-788: National Service Life Insurance.
-7-
PAGENO="0053"
49
431 U.S. at 673. The military service does not leave those
permanently injured in the line of duty uncompensated. Congress
has attended to such things in a reasonably adequate way. Bailey
v. Van Buskirk, 345 F.2d 298 (9th Cir. 1965), ~ d~nied, 383
U.S. 948 (l966).2
The second consideration that has led to the broad
application of the Eer~ doctrine by the courts through the years
can be understood as an aspect of the traditional reluctance of
American courts to intervene in military affairs, and the
reluctance of the Congress to force such intervention. In Unit~
StateS v. Brown, 348 U.S. 110, 112 (1954), the Court said:
The peculiar and special relationship of the
soldier to his superiors, the effects of
maintenance of such suits on discipline and
the extreme results that might obtain if
suits under the Tort Claims Act were allowed
for negligent orders given or negligent acts
conunitted in the course of military duty, led
the Court (in }~er.~] to read the Act as
excluding claims of that character.
(Citation omitted.]
2 In addition to compensation for personal injury, it is
worthy to note that the American service member has a plethora of
other remedies available to seek equitable and criminal relief
for grievances. For example, see:
10 U.S.C. § 938: Complaints of Wrongs;
10 U.S.C. §~ 801, ~ ~.: Uniform Code of Military
Justice;
United States Navy Regulations, ¶ 1107, Interview with
Commanding Officer (Request Mast);
United States Navy Regulations, ¶ 1106, Redress of Wrong
Committed by a Superior.
PAGENO="0054"
50
Simply put, ~ prohibition of intramilitary tort litigation
derives from society's most elemental instinct: self-
preservation through a strong military.
This consideration comes into play even where the issue is
not military discipline in the strict sense. United States v.
~g, si~pr~a. The Feres doctrine serves to avoid the general
judicial intrusion into the area of military performance. ~
Mattos v. United States, 412 F.2d 793 (9th Cir. 1969); Callaway
y~Garber, 289 F.2d 171 (9th Cir.), c..g.~. denied, 368 U.S. 874
(1961). In Renninger V. United States, 473 F.2d 814 (9th Cir.),
cp~. denied, 414 U.S. 819 (1973), a medical malpractice case,
the plaintiff had elective surgery prior to being released from
the service. He argued that since the operation was performed
after he had been processed for discharge, permitting him to sue
for injuries incurred during its course could not have the
undesirable consequences feared by the Supreme Court. The
appeals court rejected this argument, stating:
To determine the effect that a particular
type of suit would have upon military
discipline would be an exceedingly complex
task, as Henninger concedes. The proximity
of the injury to discharge would be only one
factor. Whether it resulted from an
* allegedly negligent order would be another.
Whether it was caused by totally unrelated
military personnel would be yet a third. In
short, nearly every case would have to be
litigated and it is the suit. not the
recovery. that weld be disruptive of
discipline and the orderly conduct of
military affairs . . . . This is a classic
situation where the drawing of a clear line
is more important than being able to justify,
in every conceivable case, the exact point at
which it is drawn. This is especially so
PAGENO="0055"
51
because servicemen injured incident to their
service are entitled to Veterans' benefits.
~. at 815-816 (citations and footnotes omitted) [emphasis
added).
H.R. 3407 would substantially blur the "clear line" that
currently exists under the law. The disparity in treatment that
this proposal would create between service members injured by
malpractice in stateside medical facilities, and those injured by
the negligence of their fellow service members anywhere else in
the world, would lead to a plethora of special bills seeking
additional exceptions to the doctrine.
In the last year,. our military forces had tremendous success
in the liberation of Kuwait. Unfortunately, that military
success had a tragic, although fortunately very limited, human
cost. In addition to the 98 service members who were killed in
action, 354 were wounded in action. A substantially larger
number of service members suffered other medical problems. The
medical care provided to these people was outstanding. In all,
10,314 service members were evacuated for medical reasons from
Desert Storm/Desert Shield to military medical facilities in
Germany. Of these, 5,674 were evacuated from Germany to the
United States. The mortality rate for all evacuees was less than
.05%. These statistics alone demonstrate the high quality of
military medicine despite unique and adverse conditions. Under
the proposed bill, those service-members who were evacuated to
the United States could bring malpractice suits; those who were
- 10 -
PAGENO="0056"
52
treated only in Germany could not. This disparity in treatment
cannot be justified.
The third policy consideration, the federal nature of the
relationship and the absence of analogous private liability, led
the Supreme Court in ~ to conclude that a service member's
suit failed to state a claim under the Federal Tort Claims Act
language which provides, "The United States shall be liable
in the same manner and to the same extent as a private individual
under like circumstances . . . ." 28 U.S.C. § 2674. On this
point, the Supreme Court, in ~ stated:
Without exception, the relationship of
military personnel to the Government has been
governed exclusively by federal law. We do
not think that Congress, in drafting this
Act, created a new cause of action dependent
on local law for service-connected injuries
or death due to negligence. We cannot impute
to Congress such a radical departure from
established law in the absence of express
congressional command.
340 U.S. at 146.
An analogy to various state workers' compensation statutes
which preclude suit by covered workers injured in the course of
employment also comes to mind. United States v. Lee, 400 F.2d
558 (9th Cir. 1968), ~.r.t. denied, 393 U.S. 1053 (1969). The
Supreme court in Feres recognized the relationship existing
between the United States and its military personnel as one
"distinctively federal in character," and that application of
local law to that relationship by virtue of the Federal Tort
Claims Act would be inappropriate. 340 U.S. at 143. 28 U.S.C. §
1346(b). See Atkinson v. United St~t~j, 825 F.2d 202 (9th Cir.
- 11 -
PAGENO="0057"
53
1987) (availability of alternative compensation scheme and the
distinctly federal nature of the relationship between U.S. and
members of its Armed Forces supports application of doctrine to
this case). The fact that the geographic location of the injury
should determine the law to be applied "makes no sense and is
unfair to the soldier who has no choice as to his location,
particularly because of wide variances in local law." (1nitg~4
States V. United Services Automobile Association, 238 F.2d 364,
366 (8th Cir. 1956).
While it sometimes is argued that the ~ doctrine is
unfair to service members who are the victims of medical
malpractice, as we have seen, the ~ doctrine is an adjunct to
a military disability compensation package available to service
members which, on the whole, is far more generous, even-handed,
and fair than compensation available to private citizens under
analogous state workers' compensation schemes. This is because
service members, unlike their civilian counterparts who suffer
serious adverse consequences from medical care, generally are
eligible for compensation whether or not those consequences are,
or can be proven to be, the result of substandard medical care.
While, in certain cases, the compensation may be somewhat less
than what might be available to a successful plaintiff who
endures a medical malpractice lawsuit (just as workers'
compensation systems generally provide lower benefits for
work-related injuries than what may be available through tort
litigation), the fact is that ~ of these service members are
- 12 -
PAGENO="0058"
54
eligible for such compensation rather than only a small handful
who can show a causal link between their condition and
substandard medical care. The arbitrariness and uncertainty
associated with tort litigation is eliminated. Accordingly, from
the perspective of ~ service members who suffer adverse
consequences from medical care, the existing system of
compensation is in many ways superior to what they would receive
if they were private citizens.
The Department believes that the policy considerations
outlined above are as valid today as when first articulated.
Indeed, with suits against the government and individual federal
officers increasing in numbers every year, the rationale for the
Fe~e~ doctrine is even more compelling today.
N~gative Impact of the Promosed Legislation
Accordingly, when H.R. 3407 is examined in light of the
three policy considerations upon which the Feres doctrine is
based, the shortcomings, as well as the problems which it will
create, come disturbingly into, focus.
Dis~iption of Milita~ Units
One of the chief morale benefits of the existing statutory
compensation scheme is that comparable injuries are treated
uniformly. The principle is as basic as it is essential: in `a
military organization, uniformity, consistency, and fairness
within the group are vital to the preservation of discipline,
13 -
PAGENO="0059"
55
order, and cohesiveness, H.R. 3407 threatens this principle and
seeks to replace it with special compensation based upon the
circumstances and situs of injury.
As I understand the bill, it would apply only to those
malpractice aims that occur in federal medical treatment
facilities located in the United States: suits for injuries that
occur outside those facilities would not be allowed. Inevitably,
disparities will arise. One sailor would be able to sue for
injuries received at a naval hospital: another, similarly injured
a few miles away aboard an aircraft carrier, would not. A
soldier injured by medical malpractice at the Walter Reed Army
Medical Center could sue, whereas another similarly injured in
Europe, or on board a medical evacuation flight landing at
Andrews Air Force Base, could not. Because the FTCA predicates
liability on state law, a Marine in California might recover: but
another, treated in the same fashion by the same doctor in North
Carolina, might not. Both Marines, however, would have one thing
in common: their geographic duty stations are the result of
military orders -~ not their personal choice. Selective special
compensation dependent upon the fortuity of location falls far
short of the even-handed fairness required to preserve military
morale.
Of even greater concern is the fact that only claims based
on malpractice will have access to this new remedy. Thus, under
H.R. 3407, a soldier who loses a leg on field maneuvers or on
base in a driving accident will be treated differently than one
- 14 -
PAGENO="0060"
56
who loses a leg in a military hospital at the hands of a surgeon,
although all three suffered the same injury as a result of
someone else's negligence. More importantly, the bill could be
read to significantly demean all injuries sustained in combat by
providing the soldier injured on the battlefield with
administrative compensation, while the soldier injured in a
military hospital could seek a million-dollar damage award in
federal court.
The Administration is opposed to creating a special class of
service members who may file tort suits against the United
States. Service members injured as a result of medical
malpractice should not have greater rights than service members
injured during field training exercises, motor vehicle accidents,
or any other activity.
Disruptive Impact of Litigation
Military morale and discipline are also affected by the
special relationship of a soldier to his superiors and his
comrades-in-arms. American courts have acknowledged the unique
nature of this relationship in their reluctance to intervene in
military affairs. Permitting one soldier to sue another for the
negligent performance of his duty is anathema to the teamwork,
mutual trust, and discipline upon which our military system
operates. Superimposing the adversarial process of civil
litigation onto the Armed Forces, even in the limited area of
medical malpractice, will have a disruptive influence on military
- 15 -
PAGENO="0061"
57
operations. The litigative process itself assures this result:
military plaintiffs and witnesses will be summoned to attend
depositions and trials, and they will have to take time from
their regularly assigned duties to confer with counsel and
investigators. They may have to be recalled from distant posts.
Such disruptions are opposite to the interest of our national
defense, which demands that soldiers, sailors, airmen, and
Marines be ready to perform their duties at all times.
Decisions involving medical care involve not only health
care practitioners, but also commanders and other members of the
chain-~of~command who must make decisions on whether service
members are fit for duty or require medical care. If service
members are allowed to file suit for alleged negligent medical
care, military physicians and commanders could conceivably engage
in fingerpointing to explain a service member's poor medical
outcome.
The impact of litigation on the "specialized community" of
our fighting forces will have another invidious effect. It will
undermine trust not only among individual service members, but
also between soldiers and their organization. To allow soldiers
to sue their government for damages, even if limited to medical
malpractice, implies that the military has failed its own and
that only by taking the "boss" to court can justice be attained.
Fostering that attitude within a community which demands
uncompromising trust and teamwork has dire implications for our
national defense.
16 -
PAGENO="0062"
58
Negative Influence on General Military Activities
The implications of retrenching on the ~ doctrine go far
beyond providing tort remedies for injuries. Military health
care practitioners often make determinations upon which
commanders rely. The resulting decisions of the conunanders
frequently are contrary to the personal desires of the member and
may have an adverse economic impact on him, ~ the physical
disqualification of a pilot from flying status. To allow
disgruntled service members to challenge their superiors by
attacking the medical bases of those decisions would surely
"involve the judiciary in sensitive military affairs at the
expense of military discipline and effectiveness." United States
V. Shearer, 473 U.S. 52, 59 (1985).
The Services already have procedures in place by which
erroneous medical judgments can be challenged, examined, and
corrected. Allowing malpractice suits by military personnel
would exact an intolerable price for the use of medical
information in making personnel decisions. Such litigation would
create an environment in which a commander could not act without
looking over his shoulder for the process server.
The Office of Management and Budget advises that H.R. 3407
would increase direct spending. Therefore, it is subject to the
pay-as-you-go requirement of the Omnibus Budget Reconciliation
Act of 1990.
Conclusion
It is the view of the Department of Justice that the E~x~i
doctrine continues to be a sound and necessary limit on the
FTCA's waiver of sovereign immunity, essential to the
accomplishment of the military's mission.
- 17 -
PAGENO="0063"
59
Mr. FRANK. Mr. O'Donnell.
STATEMENT OF TERRENCE O'DONNELL, GENERAL COUNSEL, U.S.
DEPARTMENT OF DEFENSE, ACCOMPANIED BY LT. GEN.
ROBERT M. ALEXANDER, DEPUTY ASSISTANT SECRETARY OF
DEFENSE FOR MILITARY MANPOWER AND PERSONNEL
POLICY, AND REAR ADM. EDWARD D. MARTIN, U.S. PUBLIC
HEALTH SERVICE, AND DEPUTY ASSISTANT SECRETARY OF
DEFENSE FOR PROFESSIONAL AFFAIRS AND QUALITY ASSUR-
ANCE
Mr. O'DONNELL. Mr. Chairman, let me first introduce Lt. Gen.
Robert M. Alexander, who is sitting behind me in the first row. He
is the Deputy Assistant Secretary of Defense for Military Manpow-
er and Personnel Policy; and also Dr. Edward D. Martin, who is a
rear admiral, U.S. Public Health Service, and Deputy Assistant
Secretary of Defense for Professional Affairs and Quality Assur-
ance.
With your leave, I will submit my full statement for inclusion in
the r~cord.
Mr.\FRANK. Without objection, it is so ordered.
Mr. O'DONNELL. Let me thank you for the opportunity to appear.
I went through the record of hearings in the past and looked at the
testiffiony of many general counsels who have preceded me, and
indeed this issue has been with us for a number of years. It is an
issue to which we attach great importance, as is evidenced by the
presence of General Alexander and Admiral Martin.
Let me also endorse the very fine oral and written statement of
Assistant Attorney General Gerson of the Department of Justice.
Like our colleagues at Justice, we in the Department of Defense re-
alize that those who advocate permitting certain active duty mili-
tary members to sue the United States for medical malpractice do
so for laudable reasons with which we can all empathize.
Yet if we examine the rationale for this position carefully, it is
our strong conviction that its objectives can be achieved without
further opening the floodgates of tort litigation and, more impor-
tantly, without the destructive consequences to military morale
and good order and discipline that would flow from the adoption of
the proposal such as the one that we are considering today.
Concern has been voiced by some Members of Congress that
active duty military personnel are unable under the Feres doctrine
to sue for medical malpractice while their dependents, retired per-
sonnel, and dependents of those retirees are not similarly barred.
This perceived injustice, however, ignores the unique status of the
active duty military personnel and the specially tailored compensa-
tion and benefit provisions that apply to these members but do not
apply to their dependents or to retirees.
More importantly, it ignores the potentially devastating impact
on military morale and the functioning of the military that would
result from carving out for favored treatment a special class of
service members. Specifically, H.R. 3407 would create the anomaly
of offering a tort remedy with the possibility of extra and, in some
cases, substantial compensation to military members who, for ex-
ample, lose a leg through a medical error or mistake in the United
PAGENO="0064"
60
States, but of denying the same remedy and compensation to one
who loses a leg through negligence of another in the military
motor pool or through action by the enemy on the battlefield.
By carving out an enclave of preference for those who suffer
from a medical error, we would violate the fundamental proposi-
tion that no soldier should be better compensated for injury than
the soldier who falls in battle. If the objective of this bill is to alle-
viate the perceived injustice of disparate judicial remedies for mili-
tary members versus military dependents and retirees, it does so at
the cost of creating an even greater and more damaging disparity
among service members who suffer similar injuries from causes
other than medical malpractice.
Beyond the inevitable morale problems and inequities created by
culling out a single class of service members for preferential treat-
ment, H.R. 3407 establishes an inexplicable disparity between serv-
ice members stationed overseas versus those within the United
States.
Specifically, the bill provides a remedy for military members who
suffer malpractice in the United States but ignores the several
hundred thousand military members assigned abroad. Thus, a sig-
nificant percentage of the Armed Forces would be denied the
remedy for malpractice provided in the bill. Moreover, depending
on the jurisdiction in which the tort claim would be adjudicated,
service members with identical injuries who have suffered similar
negligent care could end up with vastly different judgments and
damage awards. In contrast, the current no-fault mechanism for
compensating injuries incident to military service is fair and effi-
cient, unlike the overburdened and sometimes capricious civil tort
system.
A related concern raised by H.R. 3407 is the extent to which al-
lowing military members to sue one another would undermine
command authority. It may not be immediately apparent that per-
mitting military personnel to sue for medical malpractice consti-
tutes a challenge to the military system of command. Nonetheless,
it is the conviction of those who have devoted their lives to military
service that the cohesiveness, trust, esprit, discipline, and interper-
sonal relationships essential to an effective fighting force cannot be
preserved in the adversarial environment of a courtroom.
As officials from this Department and from the Department of
Justice have underscored on previous occasions, it is the lawsuit,
not the recovery, that would be disruptive of discipline and the or-
derly conduct of military affairs. This is a particularly compelling
concern where judges would be asked to second-guess military deci-
sions based on military considerations concerning fitness for duty,
the competence of health care staff in caring for the active duty
force, or the standards for relief from duty to receive medical care.
Moreover, if the bright line between the military personnel and
others is blurred by chipping away at the Feres doctrine, it is virtu-
ally inevitable that the pressures will mount for a wholesale aban-
donment of this time-tested and proven barrier to judicial interfer-
ence with the operation of the Armed Forces. Service members
could then freely and frequently hail the Government and the mili-
tary chain of command into court for alleged negligent acts of a
wide variety.
PAGENO="0065"
61
If, however, the objective of this bill is not necessarily to provide
judicial remedies for military members similar to civilian remedies
but to ensure fair compensation for those who suffer illness or
injury incident to their military duties, our focus should shift. To
the extent that Congress concludes that the current no-fault
scheme is not adequate, whether the condition requiring compensa-
tion is the result of medical malpractice or participation in inher-
ently dangerous training exercises, it should be improved.
To this end, let me reiterate that the Department is prepared to
work with this subcommittee and other agencies to improve the no-
fault compensation system so that the benefits are fair to all while
preserving the system's essential qualities of directness, efficiency,
and evenhandedness.
This no-fault compensation system for active duty military per-
*sonnel is similar to other Federal no-fault compensation programs
in barring beneficiaries from bringing tort claims against the
United States. Distinctions in the right to sue under the Federal
Tort Claims Act are not between injured military and civilian per-
sonnel but between those who are covered or not covered by a no-
fault workers' compensation system.
Thus, Federal civilian employees, seamen, and harbor workers,
and others covered by the Admiralty Act, the Jones Act, Public
Vessels Act, and the Longshore and Harbor Workers Act are also
barred from suing under the Federal Tort Claims Act. This debar-
ment extends to medical malpractice suffered by these civilians in
military medical facilities. If Congress should change the exclusive
remedy limitation applicable to military personnel through the
Feres doctrine, logic would dictate that it prepare to change all of
these other statutes and retreat from the concept of no-fault com-
pensation, a retreat we firmly believe to be extremely unwise.
Finally, if the objective of H.R. 3407 is to improve the quality
military medical care, the judicial remedy being proposed is not
the appropriate vehicle. At the present time, the majority of the
patients served by military medical facilities, dependents, and re-
tirees, may sue for malpractice. It defies logic, we contend, to con-
clude that allowing the remainder to litigate under the Federal
Tort Claims Act would somehow promote greater improvement in
the quality of health care.
To imply that military physicians and other health care provid-
ers deliver better care to those who may sue for malpractice de-
grades this dedicated group of professionals who are bound to the
same ethical requirements in treating all of their patients. More-
over, this kind of argument ignores the fact that military health
care providers are immune from individual suit for malpractice
under the Gonzalez Act. Allowing another class of individuals-
those in the active military service-to sue will have no positive
impact on the quality of medical care and may have a negative
impact because it would divert health care resources, precious re-
sources, from the patient to the litigation process.
In short, the Department strongly opposes H.R. 3407 which
would undermine the Feres doctrine. We will recommend to the
President disapproval of any such legislation, in summary, because
it would threaten the morale, discipline, and cohesiveness of the
Armed Forces by preferential treatment to one category; second,
51-768 0 - 92 - 3
PAGENO="0066"
62
offer an uneven system of potential benefits based on differences in
State law; third, undermine command authority by allowing mili-
tary command decisions to be questioned by service members and
scrutinized by Federal judges who have long been reluctant to in-
volve themselves in the day-to-day operations of the military; and,
finally, detract rather than enhance the quality of military medical
care.
Mr. Chairman, out of deference to your sincerely held views on
this issue, I can tell you that we have in the Department and that I
have personally devoted an extensive amount of time in prepara-
tion for this hearing in reviewing previous testimony and our DOD
position to ask: Have we made a mistake? Are we overlooking
something? And the result of that process is that we firmly adhere
to the position that you have heard from the Department of De-
fense now for many years.
Thank you for the opportunity to present that statement.
[The prepared statement of Mr. O'Donnell follows:]
PAGENO="0067"
63
PREPARED STATEMENT OF TERRENCE O'DONNELL, GENERAL COUNSEL, U.S.
DEPARTMENT OF DEFENSE
Mr. Chairman and Members of the Subcommittee:
I appreciate the opportunity to present the views of the
Departnent of Defense on H. R. 3407, a bill to modify the Feres
doctrine by allowing active-duty members of the Armed Forces to
sue the United States through the Federal Tort Claims Act for
injuries arising from medical malpractice in military facilities.
We strongly oppose H.R. 3407 and would recommend Executive
disapproval of this legislation because it would disrupt military
operations without any significant benefit to servicemernbers.
Before addressing our specific concerns with the proposed
legislation, I want to emphasize that all of us at the Department
of Defense share Congress' concern for those who have suffered
because of inappropriate medical treatment. Because of that
concern, the Secretary of Defense, the Assistant Secretary of
Defense for Health Affairs, the General Counsels of the Military
Departments, the Surgeons General, the Judge Advocates General,
the Inspectors General, and the audit agencies continue
collectively to monitor diligently and to improve when necessary
the quality of military health care. I know of no one in the
Department of Defense who is insensitive to the needs of military
men and women. And no one is more sensitive to these needs than
PAGENO="0068"
64
2
the Secretary of Defense. Our highest priority is to ensure that
their morale and motivation to serve remain high.
Unquestionably, one of the essential ingredients for
maintaining a well-disciplined, motivated armed force is the
understanding by servicemembers that they are being treated
fairly in all respects, including receiving fair compensation for
service-connected injuries. The key issue before us, however, is
whether removing the Feres bar to medical malpractice cases would
further the legitimate ends of discipline, morale, and fair
compensation. We maintain it would not.
Since its opinion in Feres v. United States, 340 U.S. 135
(1950), the Supreme Court has interpreted the Federal Tort Claims
Act ("FTCA") as barring suits by servicemembers for alleged
injuries incurred incident to service. While we understand the
arguments of those who oppose application of the Feres doctrine
to medical malpractice claims, for the reasons we have stated in
the past, we do not believe the doctrine to be unfair or
unreasonable in the context of medical malpractice. The
relationship between members of the Armed Forces and their
superiors is genuinely unique, with no analogous civilian
counterpart. Delivery of medical care to members of the Armed
PAGENO="0069"
65
3
Forces is inextricably intertwined with numerous aspects of
military policy and decision making.
The Supreme Court holding in Feres was based on three
considerations. First, permitting tort actions would adversely
affect military discipline, morale, and effectiveness. Second,
there is an elaborate system of compensation for military
personnel injured incident to service that is available
regardless of fault. Third, the Court noted the distinctly
federal relationship between servicemembers and their Government.
Because of this relationship, which permits the Government and
not the member to select his or her duty station, it would be
unfair to make recoveries dependent on disparate state laws, as
is required under the FTCA. Indeed, as I will describe later in
this statement, the FTCA does not even permit a suit, much less a
judgment, against the United States for torts occurring in
foreign countries, where many servicemembers are assigned. I
would like to address these concerns highlighted by the Supreme
Court in the context of the proposed legislation, and discuss why
the bill is ill-advised from the standpoint of national defense.
PAGENO="0070"
66
4
THE PROPOSED LEGISLATION ERODES UNIFORMITY
The proposed amendment to the FTCA would create a privileged
class of claimants within the Armed Forces. Specifically, H.R.
3407 creates the anomaly of offering a tort remedy, with the
possibility of extra, and in some cases substantial compensation,
to the military member who loses a leg through a medical mistake,
but of denying the same remedy and compensation to one who loses
his leg by an unlucky step on a mined battlefield.
Another example illustrates this point. A surgeon in a
military hospital makes a negligent error. As a result,
servicemember A suffers paralysis. Under the proposed
legislation, he could sue the United States. Servicemember B is
walking on the sidewalk outside the hospital and is hit by a
government vehicle driven negligently by a motor pool driver.
Servicemember B is paralyzed as a result of his injuries. He may
not sue, although he has virtually the same disability.
How does a commanding officer explain this distinction to
the people he must lead? How does he justify it? Servicemembers
understand they give up certain rights when they enter the
service and they learn that they receive certain benefits. One
PAGENO="0071"
67
5
of those benefits is a system that provides them sure and swift
compensation if they are injured incident to their service,
regardless of fault. Without question, that compensation should
be adequate and fair. It should compensate Servicemember B in
the same manner as Servicemeinber A. If that compensation is
deemed inadequate, that inadequacy should be corrected. Courts
have often cited the simple, certain, and uniform compensation
for injuries or death of those in the Armed Services. This
uniformity would be destroyed by statutory exceptions carving out
privileged areas ~f litigation, and with it will go the
understanding that all are being treated fairly.
Perhaps an even greater disparity among servicemembers
established by H.R. 3407 is the fact that the judicial remedy
proposed would apply only to servicemembers assigned in the
United States and would be applicable only to malpractice
committed in a "fixed medical care facility." Thus, we face the
possibility of one sailor being able to sue for injuries that
occur in a naval hospital, while a sailor similarly injured
several hundred miles away aboard an aircraft carrier at sea will
be denied comparable relief. Or a soldier injured by medical
malpractice at Walter Reed Army Medical Center could sue, whereas
another soldier treated in our best hospital in Europe or on
board a medical evacuation flight overseas could not. It is
PAGENO="0072"
68
6
obvious that disparate treatment `of injuries based on the
geographic location of an accident is as ill-advised as is
disparate treatment based on how the injury occurred.
Furthermore, because the FTCA bases liability on state law,
a marine `in California might recover, but another marine, subject
to a different body of state law in North Carolina, might not.
Both marines, however, would have one thing in common: their
duty stations are the result of military orders, not their
personal choice. Selective special compensation dependent upon
fortuity of location falls short of the even-handed fairness we
must exercise to preserve military morale.
We fully support a compensation system for all service-
connected injuries that is equitable and reflects current
economic conditions. Accordingly, we urge Congress to maintain
the existing, exclusive compensation system for all service-
connected injuries, including those from military medical
malpractice. This will have a far more positive impact on morale
than creating a special class of litigants whose right to recover
depends upon where and how they were injured and not on the
injury they suffered.
PAGENO="0073"
69
7
The no-fault compensation that provides the exclusive remedy
for active-duty military personnel is similar to other Federal
no-fault compensation programs. Thus, civilian employees covered
by the Federal Employees' Compensation Act or by the
Nonappropriated Fund Instrumentalities Act, both providing
compensation for injuries regardless of fault, expressly prohibit
beneficiaries from suing the United States under the Federal Tort
Claims Act. This prohibition extends to medidal malpractice
suffered by these civilians in medical facilities operated by the
Federal Government. Similarly, other Federal laws that provide
remedies for injuries sustained in the course of one's
employment, such as the Longshore and Harbor Workers'
Compensation Act, the Jones Act, the Admiralty Act and the Public
Vessels Act, make the remedies provided in those statutes
exclusive, and in place of all other liability. If Congress
should change the exclusive remedy limitation applicable to
military personnel throligh the Feres doctrine, logic would
dictate that it prepare to change all of these other statutes.
To the extent that Congress concludes that the current no-
fault scheme is not adequate--whether the condition requiring
compensation is the result of medical malpractice or
participation in an inherently dangerous training exercise--it
should be improved. To this end, let me reiterate that we, in
PAGENO="0074"
70
8
DoD are prepared to work with this Subcommittee and other
agencies to improve the no-fault compensation system so that the
benefits are fair to all, while preserving that system's
essential qualities of directness, efficiency and even-
handedness
PERNITTING MORE LAW SUITS WILL NOT
IMPROVE MILITARY MEDICINE
The proposition that military medical care would improve
with the threat of more lawsuits cannot withstand close analysis
First, medical malpractice suits under the FTCA are permitted for
a majority of the patient population served by military medical
facilities, ~ military retirees and dependents of active-
duty and retired personnel It defies belief to assert that
increasing the potential tort claim and litigation case load by
the remainder ~ active duty personnel would achieve any
beneficial effect upon the quality of health care Any argument
that military physicians provide better care to those who may sue
for malpractice is a gratuitous insult to this dedicated group of
officers who are bound by the same ethical requirements in
treating all of their patients
PAGENO="0075"
71
9
Next, we are all aware of the ongoing malpractice liability
crisis in the civilian medical community. In several areas,
notably southern Florida, the crisis has resulted in the denial
of health care in some hospitals. Instead of opening new avenues
for malpractice recovery, state legislatures are now passing tort
reform measures designed to restrict the amount of recovery, to
limit attorney's fees, and to allow consideration of collateral
compensation in computing judgments. The point is that,
notwithstanding all the malpractice suits in the civilian sector,
malpractice claims are still on the rise. In other words, if the
number of malpractice actions reflects the incidence of
malpractice, then the threat of suit does nothing to improve
medical care.
The Departnent of Defense is not only dedicated to providing
our personnel with the best health care possible, but has taken
aggressive action to assure it. As we have stated before, the
watchwords of today are "quality assurance" and "provider
accountability." Lawsuits are not needed, nor would they be
effective to encourage us to do better. Indeed, the performance
of military physicians is reviewed with greater frequency and
more vigor, and against tighter standards, than in any health
care system about which we are aware.
PAGENO="0076"
72
10
In short, we in the Department of Defense have not been
insensitive to the critics of medical care in the Armed Services
nor do we have a callous disregard for those who have been
injured Instead, we submit, a litigious approach to eliminating
medical malpractice misses the mark and will cause serious
problems for miliary morale and discipline, thereby jeopardizing
the ability of the Department of Defense to perform its mission
THE FERES DOCTRINE IS CRUCIAL TO THE MAINTENANCE OF
GOOD ORDER AND DISCIPLINE
Because of the inherently disruptive nature of litigation
the concept of soldiers suing their government is alien to our
traditional philosophy of military discipline and Anglo-Saxon
jurisprudence Thus, courts have recognized the unique nature of
the military and its indispensable role in preserving the nation,
and have been reluctant to intrude into the military environment
Indeed the Supreme Court has repeatedly affirmed that [ijn
every respect the military is a specialized society Parker
v Levi, 417 U 5 733 (1974) Accord, ~g, Orloff v
WilloucThbv, 345 U 5 83 (1955) Good order and discipline are
not merely buzz words Rather they are dynamic values, vital
to the effectiveness of our armed, forces to deter war and, when
deterrence fails, to w~n wars.
PAGENO="0077"
73
11
The Feres doctrine has been applied in deciding recent cases
that have constitutional dimensions: Cha~~ell v. Wallace,
462 U.S. 292 (1983); United States v~ Shearer, 473 U.S. 52
(1985); United States v. Johnson, 107 S. Ct. 2063 (1987). In
each case, the Supreme Court barred suit. The essence of these
decisions is that even when constitutional deprivations are
alleged, the remedy must reflect the unique natur~e of military
service. This does not mean military authorities may violate
individual rights with impunity. For aggrieired servicemembers,
numerous forms of redress are available within the military
structure, in addition to the right to communicate directly with
the Congress or the President. Moreover, if the conduct
complained of violates law or regulation, an array of
administrative actions and criminal proceedings, such as courts-
martial, are available to deal with transgressors. For military
personnel who suffer physical injury or disability, Congress has
created a comprehensive compensation scheme to provide benefits--
both financial and medical--without regard to fault.
The Supreme Court has repeatedly recognized that courts must
be solicitous of the zone of interests peculiar to the military.
We urge Congress to continue this same approach.
PAGENO="0078"
74
12
Accordingly, we disagree vehemently with the proposed bill's
judicial remedy. Lawsuits have the great potential of disrupting
discipline and military operations. As the United States Court
of Appeals for the Ninth Circuit stated, "To determine the effect
that a particular type of suit would have upon military
discipline would be an exceedingly complex task ... [N]early
every case would have to be litigated and it is the suit, not the
recovery that would be disruptive of discipline and the orderly
conduct of military affairs." Henninger v. United States,
473 F.2d 814, 815-816, (9th Cir. 1973) (emphasis added)
At first blush, widespread challenges to military
decisionmaking would appear remote from entitling servicemembers
to sue for medical malpractice injuries. However, military
health care practitioners often make determinations upon which
commanders rely. The resulting decisions of the commanders
frequently are contrary to the personal desires of the member and
may have an adverse economic impact on the member. Under the
proposed legislation, any such decision might become subject to
attack in a tort action alleging that a negligent medical finding
resulted in physical discomfort and emotional distress. Indeed,
in some jurisdictions, an allegation of emotional distress alone
would suffice.
PAGENO="0079"
75
13
Several hypothetical cases illustrate the potential for
misplaced attacks upon military decisions through the FTCA suits
that would be authorized by H.R. 3407. Consider the following:
a. A pilot is ordered removed from flight status because
of a medical condition diagnosed by a flight surgeon. The pilot
(whose career and, therefore, livelihood are in jeopardy),
instead of following his orders, attempts to circumvent those
orders through a malpractice suit alleging that the diagnosis was
improper.
b. A commander denies a security clearance to a soldier
based upon a mental health examination. The soldier brings suit
alleging misdiagnosis and mental anguish as a result of the
diagnosis.
These types of decisions are made routinely in almost every
command in the military. They are not always purely medical
decisions. Frequently, non-medical decisions made by commanding
officers are based on factors which may have as their basis a
physical or mental health report. Subjecting these decisions to
judicial scrutiny concerning their medical basis would have a
negative impact on the discipline of the military personnel who
would see medical personnel and commanders hailed into court to
PAGENO="0080"
76
14
justify their decisions. This situation would foster the belief
that no order is lawful and final until the courts have ruled
that it is.
One further example will show how good order and discipline
could be affected. Assume that H.R. 3407 is enacted. A
servicemeinber in an overseas command is scheduled for surgery.
He demands that it be performed in the United States (so he may
sue if, in his judgment, the surgery is not successful). Does
the commanding officer send this individual back? Does he
medically discharge him? Does he allow the servicemember to
make the decision or barter for the choice? Does he court-
martial him for disobeying the order to go to the hospital? What
is at issue here is the authority of the commanding officer; the
knowledge that such authority was challenged takes no time at all
to spread throughout the unit, and that is what serves to
undermine the good order and discipline, as well as the
cohesiveness, of the unit.
These examples serve to point out that the implications of
foregoing sovereign immunity to permit malpractice suits by
active-duty members go far beyond furnishing a money-damage
remedy for physical injuries. Practically all military medical
decisions in the United States and the administrative actions
PAGENO="0081"
77
15
that flow from them would become fair game in FTCA suits under
the proposed bill. Military personnel decisions would be
seriously impaired, remaining in limbo for lengthy periods until
judicially resolved.
As the Supreme Court has noted, "[Tb accomplish its mission
the military must foster instinctive obedience, unity,
commitment, and esprit de corps." Goldman v. Weinberger,
475 U.S. 503 (1986). Accordingly, it held in United States v.
Johnson, 481 U.S. 681 (1987)
PAGENO="0082"
78
16
Even if military negligence is not
specifically alleged in a tort action, a suit
based upon service-related activity
necessarily implicates the military judgments
and decisions that are inextricably
intertwined with the conduct of the military
mission. Moreover, military discipline
involves not only obedience to orders, but
more generally duty and loyalty to one's
service and to one's country. Suits brought
by service members against the Government for
service-related injuries could undermine the
commitment essential to effective service and
thus have the potential to disrupt military
discipline in the broadest sense of the word.
~Q~j~US ION
To summarize:
The notion of military personnel suing the United
States in tort runs counter to the accumulated wisdom
and experience of all three branches of government.
PAGENO="0083"
79
17
* Enacting H.R. 3407, thereby creating the right to sue
for malpractice, will open a Pandora's box of
administrative, morale, and disciplinary problems in
the Armed Services.
* Such a law would in fact erode the uniform treatnent of
servicemembers vital to the maintenance of good order
and discipline as it would create a special class of
litigants favored over all others. Furthermore,
servicemembers overseas could not sue; their
compatriots in the United States could. For those
servicemembers who could sue, damage awards for the
same injury could vary dramatically from one
jurisdiction to another, thereby underscoring disparate
treatment of military members.
* Medical care in the military services is not in a state
of chaos and disrepair. The Congress should not topple
the well-established proscription against tart suits by
active-duty military personnel in an ill-conceived
effort to enhance quality assurance in military medical
facilities.
PAGENO="0084"
80
18
A compensation scheme already exists that can fairly
compensate all injured persons regardless of the cause
of the negligence. If that compensation is inadequate,
let's correct it.
The proposed legislation is an expression of concern for the
plight of those who have suffered real injuries. But its
premises are faulty. First, H.R. 3407 will not, in our view,
reduce malpractice or improve morale. Only the Department of
Defense can do that as we aggressively pursue improved health
care. Second, the financial objective of these bills would be
best advanced by a thorough review of our no-fault benefits
system, which should provide adequate, realistic compensation for
service-connected injuries on a uniform basis without regard to
the fortuitous circumstances of individual claimants.
PAGENO="0085"
81
Mr. FRANK. I just have a couple of points. One, this argument
that somehow it is creating invidious distinctions within the armed
Services personnel and it would be bad for morale: Is it your con-.
tention that the majority of enlisted personnel would reject this
notion because of that?
Mr. O'DONNELL. I can't speak, Mr. Chairman, to the majority,
but I think that it undermines-
Mr. FRANK. No, no, I'm not asking you to repeat what you said
because I heard what you said. I'm asking you what you think the
people whose morale-you have told me that you think it would
undermine morale. I am asking you, do you think that is represent-
ative of the people whose morale would be undermined? I am
asking you now a factual question. If you don't know, you don't
know.
Mr. O'DONNELL. I believe it is. I believe it would be.
Mr. FRANK. You think that the majority of people in the armed
services would agree with you on this.
Mr. O'DONNELL. I believe they would, because.1 think you would
have-
Mr. FRANK. No, no. You are just going to repeat your argument
substantively, and we have heard that. I don't mean to be rude, but
we know your substantive argument.
What I am suggesting is that you are imputing to the service
people a rather convoluted argument that I don't think they be-
lieve. I must say that we have gotten very little objection from
people in the armed services and a lot of support for this idea, and
the reason is this. We are giving an additional right here to every
member of the armed services. Your suggestion that we are creat-
ing unfortunate categories would make sense only if the armed
services were divided into people who were always going to be over-
seas and people who were never going to be overseas or people who
would go into combat and people who would never go into combat.
In other words, there is not a specific class of people here who are
getting a right and a specific class of people who are not getting a
right. Everybody in the armed services under this bill would be get-
ting an additional right in some circumstances, and they some-
times might be in those circumstances and sometimes not be.
So the argument you are making about invidious distinctions is
very different than the one we usually hear on this. There is no
category of people who are going to be threatened.
Second, I must say, I have always found, frankly, it to be the
least persuasive argument when people say, "Oh, this bill isn't
good because it doesn't go far enough,' when, in honesty, you know
you would be much more upset if it went far enough.
The notion that, oh, this isn't good because it doesn't cover
people overseas is not one, I believe, that is genuinely meant, be-
cause if we said we would go overseas the whole Federal Tort
Claims Act, as I understand it, is restricted to America. That is
why we have that restriction, and if we were to propose repealing
that restriction, the Justice Department would do a war dance. So I
really think that is not a valid method of argument.
Mr. GERSON. On that score, Mr. Chairman, I believe that my
comments are consistent with your remark. We don't disagree
about that.
PAGENO="0086"
82
Mr. FRANK. You don't disagree; fine.
Mr. GERSON. And I said so. I said that the discontinuities were
obvious and representative of what-
Mr. FRANK. No. What you used, frankly, Mr. Gerson, were argu-
ments that you didn't mean, and I really don't think that that is a
good way to argue. The fact is, you have a group of people that
have no rights in this area in terms of medical malpractice, mem-
bers of the armed services. We have said that, for a variety of rea-
sons, we who support this bill would increase that right by some
amount. Now to say, "Oh, you are not giving them everything;
therefore, you shouldn't give them anything," is not a valid method
logically of arguing. NO one ever means that. That is the kind of
stick that people throw in there that isn't meant. There are other
arguments that are more substantive. I don't think that one is.
Yes?
Mr. GERSON. On the morale argument, I think there is a differ-
ent logic that ought to apply to it. When you are talking about
giving every military member, wherever he or she is, a right that
those people don't now have, in a sense that is true, but it is incho-
ate. It depends upon an injury of some kind, putting aside whether
it is by virtue of malpractice or something else.
Mr. FRANK. We know that.
Mr. GERSON. So that it seems to me that the morale issue comes
up and is realized at the troop level, not in saying, "Well, here's
something where you have a chance to get something you don't
now have," and it pits the lower ranking people against the higher
ranking people, and such a plebiscite as you describe might have
an obvious result.
Mr. FRANK. What do you think the obvious result would be?
Mr. GERSON. Well, I think it is not unlikely that lower ranking
people are going to say, "Hey, here's something we don't have; let's
get it."
Mr. FRANK. But they would be wrong.
Mr. GER5ON. It is a false logic.
Mr. FRANK. They would be wrong.
Mr. GERSON. It is a false logic. The point that you ought to ad-
dress is, what happens at the point that there is an injury? There
the discontinuity matters plenty.
Mr. FRANK. And then your contention is that someone who had
been wounded in battle would be deeply upset to know that Mr.
Harris or Mrs. Wall could have brought a lawsuit, that this would
really undermine their morale. That is your argument?
Mr. GERSON. I think that you would see family members coming
in and talking in just the same kinds of words that you hear today,
and I think those individuals would be upset, I think their com-
manders would be upset.
Mr. FRANK. You think they would resent the fact that Mrs. Wall
could bring a lawsuit and somebody else couldn't?
Mr. GERSON. I accept the military's view that it downgrades in a
sense the battle injury at the expense-
Mr. FRANK. It downgrades it?
Mr. GERSON. Yes, I think it does.
Mr. FRANK. I think that is an appalling statement. The notion
that by compensating someone else you downgrade the battle
PAGENO="0087"
83
injury, I think, is just appalling. This society compensates other
people in other ways, and that really seems to me to be an illegit-
imate mode of argument, that by trying to do some things and rec-
ognizing that there are complicating circumstances, and you don't
do them in every case, that you downgrade just seems to me to be
bizarre.
Mr. GERSON. But what you do here to gain a consistency that, in
essence, treats everybody alike-you would say not well enough; I
would say quite well-is, by removing the fault element, say to any
military member who is injured, "Besides the fact that we are
going to stick by you, that we are going to have consistency, that
we want to work for a uniform level of morale; you are going to get
free medical care irrespective of fault; you have unlimited sick
leave with full pay until the situation has resolved itself either
through cure or through"-
Mr. FRANK. Let me ask you a question then. Do you think Mr.
Harris was adequately compensated for what happened to him?
You have said how good this is. Now I want to ask you, do you
think Mr. Harris and Mrs. Wall were, in fact, adequately compen-
sated by the existing system?
Mr. GERSON. In the totality of the system, I would say yes. I am
not going to argue-
Mr. FRANK. No, no; wait a minute. I don't know what-
Mr. GERSON. You are asking me to-
Mr. FRANK. Yes, I am. I am asking you to have the courage of
your convictions. You told me this system works well, and I am
asking you a specific question. You raised this whole subject. And I
don't know what_frankly, "in the totality of the system" is kind of
a weasel word-
Mr. GERSON. No, because you are asking me to contest their sub-
jective determination. I can't do that.
Mr. FRANK. No, I am not asking you to do that. I am asking you,
as a public policymaker at a high rank in this Government, famil-
iar with this issue, who has testified before on it, who has just told
me that the system works well, whether you think in these two in-
stances it has worked well.
Mr. GERSON. Yes, under the circumstances of the system.
Mr. FRANK. Yes, but that is a circular argument-"under the cir-
cumstances of the system." What I am asking you is, is the system
a fair one?
Mr. GERSON. Yes.
Mr. FRANK. Do you think that the system in these two instances
produced fair results?
Mr. GERSON. That is a different argument.
Mr. FRANK. But that is the one I meant to ask you. I apologize
for being unclear. You are here defending the system-.-
Mr. GERSON. I will defend the system.
Mr. FRANK [continuing]. And defending the fairness of the
system.
In these two cases, did the system produce fair results?
Mr. GERSON. Yes, because it is a fair system.
Mr. FRANK. Oh, because it is a fair system, automatically the re-
suits are fair?
PAGENO="0088"
84
Mr. GERSON. You can bring individuals in here-putting this
system aside-who receive-
Mr. FRANK. Am I going to get an answer to my question? I will
listen to everything else, but I want to know-because I still
haven't gotten an answer to my question-do you think the system
that you are defending produced fair results in these two cases?
Mr. GERSON. Yes, I do. I do. To the extent that you don't, I would
also say-and hence we have opposed private bills and other such
things, but to the extent that there is an argument about that, it
ought to take place in the context of the given case and not in a
rejection of the system.
Mr. FRANK. No, no, because it can't take place in the context of a
given case.
Mr. GERSON. Mr. Rose thinks that it can.
Mr. FRANK. No, it cannot under-what?
Mr. GERSON. Mr. Rose believes that it can. I mean that is his
point in-
Mr. FRANK. In filing a private bill. Yes, I understand that, but,
as I have pointed out to him, that is a very, very uphill fight, and,
as you know, it only takes two objections to kill it, and that is
really not, frankly, an honest argument, Mr. Gerson, because you
know that as long as the Feres doctrine is there, private bills
simply will not avail.
Mr. O'Donnell, I have one other question of you, and that is, I
have to express my disappointment; you repeated what I have
heard from the Defense Department before, that you are willing to
work with the subcommittee. I must say, that has not proven to be
the case.
When the bill is pending, people are willing to work with us.
When the bill passes and goes over to the Senate, once it has
become clear that the Senate is not going to act, the Defense De-
partment's interest in discussing it with us has melted as the win-
ter's snows, and I would be glad to believe you, but I. will tell you
that the history is very clear: As long as there is a chance of a bill
passing, we are all buddies, and as soon as it becomes clear that
the Senate is going to deep six it, I couldn't find one of you with a
subpoena.
Mr. O'DONNELL. Mr. Chairman, I have never been asked to help
the committee. This is the first time-
Mr. FRANK. I am talking about the Justice Department, too. We
have passed it three times. I am always willing to talk about
changes in the system. I don't regard, this as the only way to do it.
My point, though, is that there are aspects of the injury that are
uncompensated for under worker's comp, and I would be ready to
look at those kinds of expansions. I will repeat the offer. I will pre-
dict that it will once again avail me nothing, but I do want to make
it, and I will be delighted to acknowledge I was wrong if you are
going to follow through.
Mr. O'DONNELL. If you want to follow up to examine the level of
compensation-
Mr. FRANK. And `the items that are compensated. I think that is
part of the problem here.
Mr. O'DONNELL. I can assure you that we will work with you to
look at that. I will give you that assurance now.
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85
Mr. FRANK. If someone will call me, we will set up an appoint-
ment.
Mr. O'DONNELL And I have never been asked before; I am asked
now, and I will,.do it.
Mr. FRANK. Yes, but, Mr. O'Donnell, you may not take this per-
sonally; you are here as a representative of a Department. I am de-
scribing to you the response of the Defense Department and the
Justice Department going back to 1985 when we first took this up.
I have received that offer very often and very little followup. I
don't mean to impugn your personal commitment here; it is the in-
stitutional flexibility that I am decrying, and I will be delighted to
have you break the pattern, and I will be available.
Mr. O'DONNELL All right, sir.
Mr. FRANK. Mr. Gekas.
Mr. GEKAS. Yes. I, too, like the witnesses, am very reluctant to
abandon the Feres doctrine obliquely with the kind of attack that
seems to be mounting here, but I did notice, Mr. O'Donnell, in the
Defense Department analysis of the situation that, although you
want to confirm and reconfirm and hold fast to the Feres doc-
trine-and, as I say, I start off in the same position; I do not look
very happily at the prospect of destroying it or mitigating it in any
way-you did say that you are willing to look at the situation of
damages and the range of damages rather than at the underlying
doctrine. Is that correct? Did I glean that correctly from what you
said?
Mr. O'DONNELL. There are a series of benefits that Mr. Gerson
outlined-.---
Mr. GEKAS. Benefits rather than damages.
Mr. O'DONNELL [continuing]. And that are available: Disability
payments, retirement, medical retirement-and those issues are all
legitimate issues for us to look at together, it seems to me, and per-
haps something more should be done in that area; I am not ruling
that out.
Mr. GEKAS. Going back to the specific cases that you heard testi-
mony elicited on today, hypothetically-although maybe you are
not prepared to answer this-could we mold those individual
claims into the area of damages without harming the Feres doc-
trine? I'm not sure.
Mr. O'DONNELL. I am not prepared to address the specific cases,
but I will discuss the underlying issue. I think that a uniform com-
pensation scheme that covers an act of negligence in the motor
pool, as I mentioned in my statement, the same way as an act of
negligence in the hospital or as an act of negligence on the battle-
field is imperative. Unfortunately, with a large military engaged in
hazardous duty, you have these things happen.
Mr. GEKAS. No question.
Mr. O'DONNELL. They should be handled uniformly, because that
is in the best interests of the country.
Mr. GEKAS. There is no question about that.
Mr. O'DONNELL. And what I am talking about is, is the level of
disability payment for a given case appropriate, and we have felt
that it is under the circumstances, and what I am offering today is
to work with the committee and the Department of Justice to ex-
PAGENO="0090"
86
amine those compensation levels. They involve the veterans, DOD,
DOJ-
Mr. GEKAS. I guess what I am asking is, in the level of compensa-
tion for these various cases, are there updates occurring on infla-
tionary factors, value of the dollar, et cetera, costs-those kinds of
things? And if they are built into the system, which I suspect they
are, is that enough? We want to have a starting point on consider-
ing that issue.
Mr. GERSON. Let me offer a bit of an answer, Mr. Gekas. Wheth-
er or not there are enough I will leave to future consideration, but
there are such things built into the system, especially to the extent
that benefits are keyed to base compensation, which changes, and
so there are factors that are in the system.
Mr. GEKA5. It is built in then.
Mr. GERSON. There is some built in. But I think there is a larger
question. As the litigators, I am a thorn in the side of the Depart-
ment of Defense on quality assurance, and I might add on that
score that the military scorecard is better than the civilian score-
card which doesn't remit our efforts to improve quality.
But also, besides the enrichment of any given benefit or its eval-
uation at any given time, there is another factor that the Depart-
ment of Defense is always considering as to which we consult with
the Department of Defense, and that is the administrative activi-'
ties that have to take place before a benefit is paid. So there is an-
other area that I think the Department constantly looks for poten-
tial reform.
I have nothing to say on the value of benefits, other than to sub-
scribe to what Mr. O'Donnell says. If a case is made that a particu-
lar benefit is inadequate or ought to be changed, I think that the
military is openminded enough, and we, from the standpoint of the
Department of Justice, are more than happy to contribute what we
know from cases generally about compensation to that effort.
Similarly, we are very interested in reducing the administrative
and bureaucratic tangles to the extent possible, and that is a
matter that I know the military is considering now, and, over and
above that, we remain constantly dedicated, from the Department
of Justice side, just as the military doctors do, to quality assurance.
We get paid just as much or just as little to be preventive lawyers
as curative ones, and I would as soon have fewer cases, and we are
working hard to do that as well.
Mr. GEKAS. Do either of you, or both of you, consider H.R. 3407
to be an outright repeal of Feres or at least an obliteration of its
main theme?
Mr. GERSON. Yes.
Mr. O'DONNELL. I would certainly agree with that. It undermines
the fundamental principles of the Feres doctrine.
Mr. GEKAS. I have no further questions.
Mr. EDWARDS [presiding]. Mr. Schiff.
Mr. SCHIFF. Thank you, Mr. Chairman. Mr. Chairman, I just
have a couple of questions.
Gentlemen, let me just lay this out in the context of the whole
system that you are talking about. In general, without detailing
them again, if active members of the military become sick or are
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87
injured in some way, does the Government provide benefits for
them?
Mr. GER5ON. Yes.
Mr. O'D0NNEU1. It certainly does, a whole series of benefits.
Mr. SCHIFF. Now let me build on that for a moment. Would it be
correct to assume-I want to make it clear, I assume it-that if
there is a situation where somebody is the victim of negligence in
the military, whether it is medical or any other basis, and they are
injured, and if they could sue in tort litigation, that they might be
able, perhaps in all of the cases we have heard this morning-they
might be able to collect more in compensation than the benefits
which they are routinely allowed?
Mr. O'DONNELL. In some cases, certainly they might be able to do
that, but we are very mindful of the vicissitudes of civil litigation.
Mr. SCHIFF. But it is at least possible.
Mr. GERSON. Sure, it is.
Mr. O'DONNELL. It is possible.
Mr. SCHIFF. It is possible in tort litigation. And, like I say, I am
willing to assume in the three cases we have heard about this
morning, it is possible that through the tort system they could col-
lect a higher amount of damages and paid-in benefits.
Mr. GERSON. It is very possible.
The only reason that I would be somewhat restricted in my
answer is that the biggest benefit, besides punitive damages which
aren't available against the Government in any regard-so that is
out-the other major difference between the private system of civil
tort litigation and the public system is the availability of so-called
noneconomic damages__that is, damages for pain and suffering.
This bill does not provide what the private sector makes available.
It creates a standard which would necessitate litigations within
every litigation over whether you met the standard for noneconom-
ic damages, and certainly any lawyer would try to satisfy it. it is
one of the defects practically of this bill.
But that notwithstanding, I think it is fair to say that the propo-
nents of the bill wouldn't be for it unless they thought that there
would be higher recoveries in the civil tort system, and certainly in
some cases that would probably be so. But what you wouldn't have,
that you have in the current system-.this current system compen-
sates extensively and without regard to fault. Most analyses of the
private tort system suggest that most cases of actual malpractice
don't get addressed through litigation: The damages aren't right,.
there are reasons that they, are unattractive to lawyers to take on
contingent fees. This system, then, compensates more people than a
private-based system would compensate.
Mr. SCHIFF. That gets down to the point, I think, of the bill. The
chairman pointed out correctly that if this bill becomes law, no in-
dividual can collect twice. That is stated in the bill. There is an
offset for that indiyidual. . .
But I would ask you this question. Even though under this bill
no individual can collect twice, the individual has a, choice of sys-
tems, it seems to me. I would like to ask you, from your experience
as attorneys, is it normally the case if someone is in a position
where they can sue under tort litigation--do they normally have a
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88
compensation system sitting right next to it that they can rely
upon if they don't want to go into tort litigation?
Mr. GERSON. Well, yes and no, because the law is changing so
much. But I think the salient feature that your question doesn't
consider is that there is no irrevocable election of remedies here, so
that the natural choice would be to choose both systems at the
same time.
Mr. SCHIFF. In other words, under this bill one could receive all
of the benefits that are available without showing fault, and then
if, in addition, there is fault, then they could sue for damages on
top of that.
Mr. GERSON. That is the way I read it.
Mr. O'DONNELL. That is the way I read it as well.
Mr. SCHIFF. Certainly. That is the way I read it.
At the same time, if somebody is injured through nonnegligence,
the Government still pays the full range of damages right now,
today.
Mr. GERSON. That is right.
Mr. O'DONNELL That is correct.
Mr. GERSON. Let me just say as an addendum to that, you would
certainly spawn a good deal of litigation just by that mere fact
alone.
Mr. SCHIFF. Because you don't lose.
Mr. GERSON. That is exactly right.
Mr. SCHIFF. You don't have to choose to give up the nonfault
damages in order to sue for tort litigation.
Mr. GERSON. That is right, so that most systems that have side-
by-side remedies include some form of an election and most time
an irrevocable election of remedies.
Mr. SCHIFF. And here there is no irrevocable election. You don't
lose the no-fault damages that are provided-.I shouldn't say "dam-
ages"-.benefits, just because you wish to sue in tort also.
Mr. GERSON. That is right. And. if Mr. Frank were here at this
pointy he might say to me, because we have debated this often,
`Yes, but the administration is proposing all sorts of law reforms."
In the larger system, we are, and one of the things we stress is
election. Here, you don't have anything like that.
Mr. SCHIFF. Let me ask just one other item, and I appreciate the
Chair's indulgence; I think I have used up more than my time.
The issue has come up about fairness, that it is not fair that
some individuals can sue for tort litigation and some can't. I think,
in my mind, we have touched upon that, comparing the no-fault
system that also exists. But if we are going to talk about fairness, I
am not sure I see a distinction between those who suffer from med-
ical negligence in the military and those who suffer from a routine
auto accident in the military.
Let's assume it happens here in States. Let's assume we have a
base-which, as you know, can be small cities-and there is a rou-
tine automobile accident; at an intersection, there is a collision,
and a member of the active military is injured through the negli-
gence of another member of the active military, and so forth.
Under this bill, the victim of that negligence, which is just as ordi-
nary as medical negligence, would not be able to sue under tort liti-
gation-is that right?-that I can see here.
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89
Mr. GERSON. The bill only applies to medical malpractice.
Mr. O'DONNELL. Malpractice only.
Mr. SCHIFF. That is my point. My point is that we could pass this
bill, and next year we could have other cases come before us of
those who are injured in automobile accidents, who could say,
"Well, if I weren't in the military, if I were just out in the middle
of the city, I could sue, so why can't I here?" Is there really a dis-
tinction here that you can see?
Mr. GERSON. Well, I know what the distinction that the sponsors
make is, and that is, they think they can positively affect quality in
medical cases.
Mr. FRANK. That is wrong.
Mr. GERSON. Well, in any event, it certainly is a distinction, that
you point out, that the bill doesn't address.
Mr. SCHIFF. One final distinction: I notice that there is also a dis-
tinction, this has to be a fixed facility, it has to be in a building;
that is how I read this bill.
Mr. GERSON. That is what it says. We point out in the written
testimony, it wouldn't apply, say, to a hospital ship at sea, and it
wouldn't apply even to a building that is overseas. Now Mr. Frank
correctly described why that is so in the bill, but the fact is that it
is so.
Mr. SCHIFF. I have no further questions. Thank you, Mr. Chair-
man.
Mr. FRANK [presiding]. If the gentleman would allow me, since
he raised the question of why we make the distinction, Mr. Ger-
son's argument is simply not the accurate one. It is the feeling
that, as you get beyond the very defined circumstances of medical
care provided by doctors, et cetera, you might then implicate com-
mand decisions that you don't here. That is the reason for not
going beyond medical malpractice into other areas; you then might
tend to say: "Well, was that automobile trip necessary? Was that
automobile OK?" It was an effort to try to limit the extent to
which you would get into command decisions, our feeling being
that having someone challenge a doctor's judgment who performed
some medical activity on him or her is the least likely to implicate
a command decision, and we were erring, we thought, on the side
of that.
Mr. Edwards.
Mr. EDWARDS. Thank you, Mr. Chairman, and I appreciate the
testimony of these expert witnesses.
I don't know the extent of this problem, because I am new to the
subcommittee, but if there are very many Mrs. Walls or Mr. Har-
ris's out there, we have got a problem. I don't know how many
there are, and that is probably one of the reasons why we are hold-
ing these hearings. If there is any kind of an epidemic, that is seri-
ous business, because regardless of the witnesses' answers, they
didn't sound like they were treated like Americans to me.
I have been here a long time and a member of the Veterans'
Committee for over a quarter century. There, and in other experi-
ences that I have had, I have found that any system that is totally
in-house has to be unfair here and there. We found that in the Vet-
erans' Administration where veterans did not have access to a Fed-
eral court, or any court except an in-house court in the Veterans'
PAGENO="0094"
90
Administration, to enforce their claims. To appeal from a negative
decision in the bureaucracy of the Veterans' Administration, they
had to appeal to another bureaucracy within the Veterans' Admin-
istration. Of course it didn't work. There was great frustration
among thousands upon thousands of veterans because everything
was decided in-house, by agencies within agencies.
Many of the answers that the Veterans' Administration and, I
might say, the big veterans' groups-Veterans of Foreign Wars and
American Legions-fine organizations, gave us for years was:
"Leave this system alone; the veterans are very happy with it; we
take care of them; just trust us; we take care of them; the system is
great."
Well, we had just dozens of witnesses that said it wasn't fair.
Then some of the veterans' organizations broke off and said no, it's
just wrong to have everything within the Veterans' Administra-
tion. Unless there is some adversarial aspect to the claim, some-
body is not going to get a fair shake.
So I wanted access to a Federal district court for veterans and
appeal from the last appeal within the Veterans' Administration to
a Federal court. People were surprised that veterans had no access
to a Federal court when a prisoner in a Federal penitentiary did.
Veterans really were fifth-class citizens insofar as their claims
were concerned, and, to some extent, I find that here today. Mr.
Harris doesn't have the same privileges that most other Americans
would have.
So I haven't really any questions unless the witnesses, Mr. Chair-
man, want to comment on what I said.
I understand where you are coming from. You want us to believe
that you are taking care of this in-house, and leave it alone. Well, I
think my response to that is-and I am still open because I am
new to the issue-if there is any kind of an epidemic out there of
unfairness in medical malpractice and you are not taking care of
it-and certainly the only witnesses I have heard here are not~-I
think we ought to take another look at this system.
Mr. GERSON. Mr. Edwards, I can say in one sense that there cer-
tainly is no epidemic. When you compare military facilities to pri-
vate ones, the military record is somewhat better. The military, in
talking with me, makes somewhat of a big thing of that. I make a
lot less of it; but it suggests that, in a sense, there is no epidemic.
But the reason that I push it aside fairly quickly once I look at it
is that any malpractice is too much, so that in any given system
you are going to find people who have been injured in an absolute-
ly unacceptable way, and the question is whether that is being ad-
dressed somehow within the system.
Mr. FRANK. Let me say, it has never been my contention nor, I
think, any of the other advocates here, that military medicine was
any worse than medicine in general. That has not been part of the
contention.
Mr. GERSON. We agree about that, and we also agree that any
level of malpractice is unacceptable. I get into the mix because I
approve the big settlements and deal with a lot of the big cases,
and, contrary to what some suggestions are, we resolve an awful
lot of cases, and I demand and get satisfaction that some remedial
activity and preventive activity has taken place based on what we
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91
learn in any case. That is my quality check; that is not to satisfy
you; it is not intended to.
But I believe that the military is addressing that, and I believe
that, irrespective of what you do as to Feres, the overall question of
the quality of military medicine-indeed, the quality of any medi-
cine that the Government pays for-is a fair issue of oversight, and
I would leave it at that. As I say, I don't think there is anything
that is particularly epidemic, but that sort of begs the questions.
Mr. O'DONNELL. May I add to that, that there is no one who em-
phasizes and reemphasizes the welfare of the troops more .than the
Secretary of Defense-we have an all-volunteer force in the mili-
tary; it is a successful force, a cohesive force, and it must be that
way, particularly with the restrictions now in the budget, the cut-
backs.
Secretary Cheney has emphasized time and again taking care of
our people, and the system is designed within these parameters,
which are the right parameters from a policy point of view, to
make sure that anyone who is injured is taken care of to the full
extent of the law and to do so as promptly and as efficiently as pos-
sible.
When I hear that there are redtape hurdles to be cleared before
someone who is entitled to benefits gets them, it makes my blood
run hot, and we are trying to streamline that system, and I think
we do a very good job of it, in getting the benefits that are provided
under the no-fault system to those who are injured as quickly and
as efficiently as possible so that we care for the force, and the force
appreciates and understands that. Regrettably, in any system you
have some bad cases, however.
In the civil litigation area, as Mr. Gerson has referred to, there
are some terrible cases-
Mr. FRANK. Let's not get into other kinds of subjects. We are
running late. The civil litigation system isn't before us.
Mr. EDWARDS. I am through also, but I will only make one point,
and that is that I do appreciate the efforts that you make, and, as a
Navy veteran, I feel exactly the way you do about the good efforts
that you put forth to be fair in the treatment of soldiers and sail-
ors.
However, at the same time, you can't serve two masters. You are
working for the military, and you are the judge and the jury and
the investigator. That always poses problems. You are wearing two
hats, and that is a perilous situation because you don't know when
you are being unfair.
Thank you.
Mr. FRANK. Thank you.
We will call our next panel: Mr. Putnam, Mr. Guimond, and Mr.
Davis.
STATEMENT OF RUSSELL H. PUTNAM, JR., TYLER, CASSELL &
JACKSON, COLUMBIA, SC
Mr. PUTNAM. Thank you, Mr. Chairman.
My name is Russell Putnam. I practice with the law firm of
Tyler, Cassell & Jackson, in Columbia, SC. As one who has recently
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92
returned from active duty as a reservist who was mobilized in
Desert Storm, I appreciate the opportunity to appear here.
If my written statement could be-
Mr. FRANK. Without objection, it will be made part of the record.
All three witnesses' statements, if there are any, will be made part
of the record.
Mr. PUTNAM. I appreciate that.
I think there are a few things-if I could depart from my pre-
pared scripture-listening to this debate with the committee and
the representatives from DOD and the Department of Justice being
overlooked. The first one is-and I will just ask the question: After
40 years experience with the Feres doctrine and hundreds, if not
thousands, of cases or so, I would think the Department of Defense
or Department of Justice could point to one unit, one unit, one
military unit, whose morale, discipline, good order, has been ad-
versely affected by the Feres doctrine, and the answer to that ques-
tion is, they can't. Judge advocates have studied it, scholars have
studied it, and no one has been able to identify one unit that falls
in that category. So I think the question of the impact of modifying
the Feres doctrine upon the discipline and good order of the mili-
tary is grossly exaggerated.
Second, the problem that you get into with the organization of
the military-and I am speaking now as one who has looked at it
from various angles, one as an enlisted person during the Vietnam
era, one as a reserve judge advocate for the last 11 or 12 years, on
as a judge advocate on active duty during Desert Storm, and one as
a plaintiff's lawyer-and, I might add, as a judge advocate on
active duty I participated in defending the Government in malprac-
tice and other negligence cases brought against it under the Feder-
al Tort Claims Act. We get the cart before the horse, I think. Not
every case filed is going to end up in the district court.
In point of fact, what happens-and this was the experience
under the original version of the Federal Tort Claims Act-a large
number of cases are going to be settled administratively. Under the
original act, if the committee will recall, the claimant could either
file an administrative claim, I believe, or go directly to district
court, and if you did go to district court, the Government had the
option at that time of reviewing the case and staying the proceed-
ings until that review was completed.
What happened was, I think it was something like 75 percent of
the cases were settled administratively, and Congress then modi-
fied the act to require the administrative settlement of claims
against the Government under the Federal Tort Claims Act.
Having worked with the Army Claims Service and the Navy
Claims Service and the Air Force Claims Service, there is no
reason in the world to believe that meritorious claims will not be,
if you repeal or modify the Feres doctrine, settled quickly, fairly,
and efficiently at the administrative level. Most of them will never
get to a district court.
Those who do get to the district court will probably fall into two
categories. The larger part of them is where you are arguing over
damages-how much has the person been damaged-and the
second part of them is where you argue over liability, and I suspect
those are going to be the smallest group of them.
PAGENO="0097"
93
When you talk about damages, I have listened with some amuse-
ment, or bemusement, I guess, to the references to workers' comp
situations. It is a false analogy. Let's remember what happens in
workers' comp situations. You have a tripartite social compact be-
tween the State, the employer, and the employee. The employer
and the employee contract and agree that each will give up their
common law claims and defenses in return for a quick, no-fault set-
tlement, and the State agrees that it will enforce and prosecute vio-
lations of that agreement. It is settled constitutional law in this
country, the veterans' benefits, the benefits provided by service
members, cannot be challenged. Tomorrow, if Congress turns off
the spigot, every injured veteran, every veteran who will be in-
jured, will be without a remedy.
I will also say, as somebody who has represented veterans before
the VA and have had one or two workmen's comp cases-and my
research on this indicates my experience is not unique-it is much
easier to get workmen's comp settlements than it is ever to get
anything out of the Veterans Administration. So I would eschew
the analogy to the workers' comp. To the extent that the military
benefits do not allow the person to recover for lost consortium pain
and suffering, they do not make the injured service member and
his family, or her family, equal.
The act is not consistently applied. For example, retirees who are
members after retirement of the Armed Forces can sue in tort. A
situation in the celebrated case of Brooks v. United States, where
an active duty service member was injured by an automobile acci-
dent and the court held he could recover under the Federal Tort
Claims Act, that case has never been overruled. So if you have a
Brooks situation, an active duty member can collect.
There are other exceptions to policies made-I won't say routine-
ly, but made fairly regularly. The Challenger example is one of
them. Members who were- on active duty were allowed to recover
under the Federal Tort Claims Act, or their families, in Challenger.
I have settled the Kendricks case, which involved somebody who
was on a temporary disability list, and the Government argued
that Feres applied there. We ultimately settled that in the Supreme
Court. Another case of the same gender was the Rinnelli case. I
have mentioned all these in my prepared testimony.
So those cases are cases in which the Feres doctrine is either not
applied or waived. So there is no rule of consistency in this thing.
It hurts the morale and good discipline. I think what we know
about what makes people fight, having watched our troops in
Desert Storm and dealt with them, what makes them fight is not
the - fear of a court martial, not the hope of winning some sort of
Publishers Clearinghouse sweepstakes in the tort recovery system,
but, rather, the fact that they feel that their sisters and brothers in
arms are dedicated to helping them get the job done and will take
care of them. Feres sends the wrong message. It sends the message
that they have less rights under the Federal Tort Claims Act than
they do as an American citizen.
Congress, as a matter of policy, has said that the Federal Tort
Claims Act doesn't apply in a series of situations. Three of them
that are very applicable to the military are the overseas exception,
the combatant operations exception, and the discretionary excep-
51-768 0 - 92 - 4
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94
tion. All those exceptions no American can recover for, if those ex-
ceptions of policy are there.
So all this bill does is begin the first long step in giving to the
American service member the same right that his or her brother,
father, or sister would have out there in the civilian world.
Thank you.
Mr. SCHIFF [presiding]. Thank you, Mr. Putnam.
[The prepared statement of Mr. Putnam follows:]
TESTIMONY OF RUSSELL H. PUTNN4, JR.
Good morning Mr. Chairman, and thank you for giving me an
opportunity to testify in favor of the proposed bill to amend
Chapter 171 of Title 28, United States Code. It is my
understanding that the proposed bill would allow claims against the
United States under the Chapter for damages arising from certain
negligent medical care provided members of the Armed Forces. In
other words, the bill would modify the rule articulated in Feres v.
United States1 which has become known as the "Feres Doctrine'.
This doctrine has become a judicially created exception to the
Federal Tort Claims Act (FTCA).2 In its present form the Feres
Doctrine" bars recovery by a number of the Armed Services for
injuries caused by Government negligence of those injuries arise
from or are incident to the servicemembers military service.3
As a reservist who has just returned from service in Operation
Desert Storm, it is particularly gratifying to see and participate
in an effort to correct what I consider to be a grave injustice to
all servicemexubers and their families. Let me hasten to add Mr.
Chairman that I was not assigned to the Theater of Operations.
Instead I spent approximately four and one half months at Fort
Jackson participating in the mobilization effort and, after the war
demobilizing them. In additions, my duties included assisting the
~34O U.S. 135 (1950).
228 U.S.C. SS1346(b); 2671-2680.
3Feres v. United States, 340 U.S. 135 (1950).
1
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95
Claims Office at Fort Jackson in reviewing, resolving and in some
cases, participating in the defense of medical malpractice and
other negligence cases against the Government. Furthermore, I have
represented several servicemenibers and their families in medical
malpractice claims against the Government. One of these, Kendricks
y. United States, was settled in the United States Supreme Court
before the Court ruled on my clients' Petition for Certiorari.
Moreover, as a Reserve Judge Advocat General Corps Officer I have
bad upon occasion the duty to explain the Feres Doctrine to
servicenieinbers and their families. The reaction which such
explanation always provokes is one of anger, alienation,
bitterness, hate, disgust and repulsion.
My experience has convinced me that the yei~ Doctrine is not
only an ugly stain on American Jurisprudence but also detrimental
to the good, order and moral of the Armed Services. In addition,
I believe that Feres has an insidious long term impact on
recruiting. Several of my friends who are businessmen have told me
that they have a rule of thumb a dissatisfied customers will tell
ten others about their dissatisfaction with a business.
Conversely, a satisfied customer tells only one other of his or her
satisfaction. Applying these rules it seems safe to assume that
the family of a servicemember whose claim is barred by Feres will
not encourage sons, daughters, sisters, or brothers to join the
Armed Services. By the same token, it also seems safe to assume
that such a family will not encourage its friends and neighbors to
join the Armed Services. If I am right, Feres has impact on the
2
PAGENO="0100"
96
Armed Services that neither the Courts the Armed Services or
Congress has ever truly considered
My own experience has convinced me that the Federal Judiciary
is not going to change or modify the Feres Doctrine In fact it
appears that the federal courts are expanding its scope Within
the last several years, the Fourth and Eleventh Circuits have held
that Feres bars the FTCA claims of individuals on the Temporary
Disability Retired List If change is going to be made, it will
have to be made by Congress The proposed bill is a step in
eradicating the ugly unfair stain of Feres
I would like to take this opportunity to acknowledge my
indebtedness to the scholars, attorneys and judges whose writings
I have relied on in my testimony Much of what follows is base on
their work and brilliance Any mistakes contained in my testimony
are mine I would also like to point out to the Comm~i.ttee that
much of my testimony today is based on and taken directly from
briefs and memoranda of law which I have filed in various District
Courts, Circuit Courts of Appeal and the United States Supreme
Court I would like to begin my testimony by quoting on of Lewis
Caroll s characters
`The time has come,' the Walrus said,
to talk of many things
-of shoes-and ships-and sealing wax-
of cabbages-and-kings-
and why the sea is boiling hot
and whether pigs have wings
4Lewis Carroll, Through the Looking Glass, Chap 4, The Walrus
and the Carpenter, Stanza 11.
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97
Let me turn to the discussion `of Cabbages and Kings" in the
context of the Feres Doctrine. A discussion which with rare
exception the Supreme Court has refused to participate.
I.
When it enacted the Federal Tort Claims Act (FTCA), Congress
eliminated most of the sovereign immunity of the United States.5
In clear language, Congress created a remedy for individuals
injured by the negligence of a government employee acting within
the scope of his or her employment. In doing so, Congress provided
twelve exceptions to that general waiver of immunity.6 If one or
more of the exceptions applies, recovery is barred.7
The FTCA states in relevant part:
The United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same
manner and to the same extent as a private individual under
like circumstances, but shall not be liable for interest prior
to judgment or for punitive damages
If, however, in any case wherein death was caused, the
law of the place where the act or omission complained of
occurred provides, or has been construed to provide, for
damages only punitive in nature, the United States shall be
liable for actual or compensatory damages, measured by the
pecuniary injuries resulting from such death to the persons
respectively, for whose benefit the action was brought, in
lieu thereof.8
Despite the statute's clear language, the Supreme Court
5United. States v. Johnson, 481 U.S. 681, 692 (1987) (Scalia,
J. dissenting).
628 U.S.C. §2680
71d.
828 U.S.C. §2674
4
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98
created a thirteenth exception to the FTCA. This exception, which
has become known as the Feres Doctrine, bars recovery by members of
the armed forces for injuries arising out of or incident to their
military service.9 Although in United States v. Johnson, 481 U.S.
681 (1987) a bare majority of the Court indicated in dictum its
support for the Feres Doctrine, the fact remains that during the
four decades following its establishment, the Court has never
subjected the `Feres Doctrine' to a critical analysis and review.
Since the date of its creation, ~ has been subjected to a
maelstrom of criticism by judges, scholars and practicing
attorneys.10 At least one author has stated "[r]arely has the
9Feres v. United States, 340 U.S. 135 (1950).
105ee, e.g., Appelhans v. United States, 877 F.2d 309 (4th
Cir. 1989); Atkinson v. United States, 825 F.2d 202 (9th Cir.
1987); Bozeman v. Unites States, 780 F. 2d 198, 200 (2d Cir. 1985);
Hinkie v. United States, 715 F.2d 96, 97 (3d Cir. 1983), cert.
denied, 465 U.S. 1021 (1984); Scales v. United States, 685 F.2d
970, 974 (5th Cir. 1982), cert. denied, 460 U.S. 1082 (1983);
LaBash v. United States Dept. of Army, 688 F.2d 1153, 1156 (10th
Cir.), cert. denied, 456 U.S. 1008 (1987); Monaco v. United States,
661 F.2d 129, 132 (9th Cir. 1981) ~ denied, 456 U.S. 989
(1982); Hunt v. Unites States, 636 F.2d 580, 589 (D.C. Cir. 1980);
Veillette v. United States, 611 F.2d 1007, 1011 (5th Cir. 1980);
Peluso v. United States, 474 F.2d 605, 606 (3rd Cir.), ~
denied, 414 U.S. 879 (1973); In Re Agent Orange" Product Liability
Litigation, 580 F.Supp. 1242, 1246 (E.D.N.Y.), appeal dism'd 745
F.2d 161, (2d Cir. 1984); Bennett, The Feres Doctrine, Discipline
and Weapons of War, 29 St. Louis U.L.J. 383 (1985); Comment, ~
Feres Doctrine: Has It Created Remediless Wrongs for Relatives of
Servicemen?, U. Pitt. L. Rev. 929 (1983); Hitch, The Federal Tort
Claims Act and Military Personnel, 8 Rutgers L. Rev. 316 (1954);
Note, The Cancer Spreads: Atomic Veterans Powerless in the
Aftermath of Feres v. United States, 6 Cardozo L. Rev. 391 (1984);
Note, Constitutional Law: Servicemen and Constitutional Tort Suits
- United States v. Stanley, 107 5. Ct. 3054 (1987) 11 Harv. J.L. &
Pub. Policy 575 (1988); Note, From Feres to Stencel: Should
Military Personnel Have Access to FTCA Recovery, 47 Mich. L. Rev.
455 (1979); Note, United States v. Stanley: Has the Supreme Court
Gone A Step Too Far?, 90 W, Va. L. Rev. 473 (1987); Note, ~
5
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99
Court engaged in such intellectual dishonesty' . ~ Another has
expressed the view that Feres was a political decision motivated by
the Korean War.12 Sadly, this thesis may not be too wide of the
mark. We now know that public opinion influenced the Supreme
Court's decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952), which was also decided during the Korean War Era.13
Judges have also expressed their reservations about and
dislike of Feres. Upon occasion, they have gone to great length to
illustrate the bizarre results which Feres produces.14 In view
of the demands upon scarce judicial resources, the time and effort
spent to construct such hypotheticals reveal deep concern for the
validity and rationality of Feres.
The outcomes of actual cases are no less perplexing. For
Federal Tort Claims Act: A Cause of Action for Servicemen, 14 Va.
L. Rev. 528 (1980); Rhodes, The Feres Doctrine After Twenty-Five
Years, 18 A.F. L. Rev. 24 (1976); Schwartz, Making Intramilitary
Tort Law More Civil: A Proposed Reform For the Feres Doctrine, 95
Yale L.J. 992 (1986).
~~Bennett, Feres Doctrine, Discipline and Weapons of War, 29
St. Louis. Univ. L.J. 383, 405 (1985) (Bennett,. Feres and
Discipline).
12DeDominicis, Atomic Vets Take Their Case to Court, 2 Cal.
Law. 28, 31 (1982).
13W. Rehnquist, The Supreme Court: How It Was, How It Is, 95
(1987).
14~, ~Lg.!, United States v. Johnson, 481 U.S. 681, 701-2
(1987) (Scalia, J. dissenting) (Hypothetical showing ~ has not
resulted in harmonizing the law); In Re Agent. Orange" Product
Liability Litigation, 580 F.Supp. 1242., 1252 (E.D.N.Y. 1984)
(Hypothetical demonstrating the widely different results which are
obtained as the result of the application of Feres in same factual
context); Jaf fee v. United States, 468 F.Supp. 632, 635 (D.N.J.)
Aff'd., 592 F.2d 712 (3rd Cir. 1979) (Feres protects Government
from liability even if it marches soldiers over a cliff).
6
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100
example, Feres barred a serviceman's claim for negligence arising
out of the crash of a military aircraft into his on-post home.15
However, the doctrine did not bar a serviceman's claim for
negligence arising out of the crash of a military aircraft into his
off-post home.16 Perhaps even more bizarre was the result
produced by the application of Feres to a mid-air collision.
Civilian passengers on an airliner which was negligently struck by
an Air Force plane were allowed to recover under the FTCA, but
servicemember passengers could not.17
More recently, Feres has produced results which are not only
sinister but also violate international law as well as the basic
tenets of our society. Under the rubric of Feres, the Supreme
Court has affirmed the dismissal of the FTCA claim of a
servicemember to whom the Central Intelligence Agency secretly
administered LSD.18 Feres has also barred a servicemember's FTCA
claims when the claims arose from the Government's nuclear weapon
testing program in the South Pacific.19 Yet I can recall the
repulsion and moral indignation which swept through this country in
response to the use of chemical weapons by the Iraqi Government
15Orken v. United States, 239 F.2d 850 (6th Cir. 1956).
16Sapp v. United States, 153 F.Supp. 496 (W.D. La. 1957).
~United States v. Wiener, 335 F.2d 379, 404 (9th Cir.), ce~t~
dism., 379 U.S. 951 (1964).
18United States v. Stanley, 483 U.S. 669 (1987).
19Laswell v. Brown, 683 F.2d 261 (8th Cir. 1982). Accord,
Jaff cc v. United States, 468 F.Supp. 632 (D.N.J.) aff'd., 592 F.2d
712 (2nd Cir. 1979).
7
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101
against the Kurds. Are we as a nation less sensitive to the
mistreatment of those who guard our freedom?
The persistence of the ~ doctrine in the face of such
inequitable results and the well-founded criticisms of the
overwhelming majority of commentators undermines the public's
confidence in the fundamental fairness of the law. In the past,
Supreme Court has not hesitated to overrule its own precedents when
`history and experience have conspicuously eroded' their
foundation.20 The Feres doctrine, however, has proven to be the
exception. If fundamental fairness is to be restored to the FTCA,
Congress will have to enact remedial legislation. Sadly, the
Federal Judiciary seems to be institutional blind to the injustice
that this judge made rule has caused and is causing.
In Piiited States v. Johnson, 481 U.S. 691 (1987), the Court
emphasized that three broad rationales support the ~ doctrine:
(1) The distinctively federal nature of the relationship
between the government between the government and
its servicemembers. (The Federal Relationship);
(2) The existence of disability and death benefits
(Veterans' Benefits Rationale); and
(3) The fear that negligence actions by servicemembers
would require judicial involvement in sensitive
military affairs at the expense of military
discipline (Military Discipline Rationale).21
A careful review of each of the Feres rationales reveals that
2O~ ~ United States v. Reliable Transfer Co., 420 U.S.
397, 410-11 (1975); ~xecutive Jet Aircraft, Inc. v. City of
Cleveland, 409 U.S. 249, 266-68 (1972); Trammel v. United States,
445 U.S. 40, 51-53 (1980).
21United States v. Johnson, 481 U.S. 691, 688-90 (1987).
8
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102
they are logically and fatally flawed.
A.
The history of the Federal Relationship/Rationale illustrates
the bankruptcy of the Feres Rationales. The original stated
purpose of the Federal Relationship/Rationale was to protect
servicemembers who are unable to control their places of assignment
from the vagaries of local law. Accordingly, the Court explained
that Congress had substituted the certainty of recovery under the
Veterans Benefits Acts for the possibility of nonuniform state
court judgments.22 Twenty-seven years later, the Court subtly
shifted the emphasis of this rationale.
In Stencel Aero Engineering Corp. v. United States, 431 U.S.
666 (1977), the Court explained the Federal Relationship/Rationale
by stating that "as the Court held in Feres it makes no sense to
permit the fortuity of the situs of the alleged negligence to
affect the liability of the Government to a servicemember who
sustains service-connected injuries" ~23 A careful reading, of
Feres fails to unearth such a holding. It appears that the Supreme
Court imply reinterpreted Feres to reach a desired result.
The Federal Relationship/Rationale offered proves too much.
The relationship between the Government and a servicemember does
not lose its distinctively federal nature when he or she suffers an
injury that is not incident to service. Nor is local law any more
22Feres v. United States, 340 U.S. 135, 140 (1950)
23Stencel Aero Engineering Corp. v. United States, 431 U.S.
666, 672 (1972)
9
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103
uniform. Moreover, the problems caused by local law remain the
same for both the servicemember and the Government. Yet recovery
is permitted for such injuries.24
Furthermore, there is no reason to believe that the military's
need for uniformity in this area is any different or superior to
that of other federal agencies which have unique nationwide
functions. .25 Yet all other federal agencies are subject to
negligence suits by citizens, the outcomes of which are dictated by
the vagaries of local law.26 Furthermore, the military itself is
subject to suit suits by civilians.27
Finally, the Supreme Court in every jurisdiction in this
country has itself recognized the logical bankruptcy of the Federal
Relationship/Rationale. In United States v. Muniz, 374 U.S. 150
(1963), the Court permitted federal prisoners, who have even less
control over their geographical location, to recover under the
FTCA. The Court concluded that any problems of prison
administration due to nonuniform recoveries "were more a matter of
conjecture than reality. .28 At any rate, the Court opined
nonuniform recoveries could not be more prejudicial to the
24~, ~ Brooks v. United States, 337 U.S. 49 (1949);
Harvey v. United States, 884 F.2d 854 (5th Cir. 1989).
25Stencel Aero Engineering Corp v. United States, 431 U.S.
666, 675 (1977) (Marshall, J., dissenting).
27~, ~ Indian Towing Co. v. United States, 350 U.S. 61
(1965).
at 161.
10
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104
prisoners than uniform nonrecovery.29
As Alice remarked, things get "curiouser and curiouser.'30
Clearly, the law has arrived at a cruel anomaly. Those who
dedicate and risk their lives in defense of America, its
Constitution and laws are deprived, by a judge made rule, of their
rights under the FTCA. Yet, those who have been convicted of
violating and subverting the law, were by virtue of a judge made
rule afforded the right to recover for their injustices under the
FTCA. Such an anomalous situation can only be sustained by a
judicial blindness equal to that of Lord Nelson's at Trafalgar when
he placed his telescope to his blind eye. Over a century ago,
Charles Dickens' memorable Mr. Bumble dismissed an equally
transparent legal blindness with the incisive indictment, `(i]f the
law supposes that, the law is a ass--- a idiot. .,31 It is
inconceivable that this or any Congress intended such results under
the FTCA.
B.
Nor does the Veterans' Benefit Rationale withstand analysis
any better than the Federal Relationship/Rationale. In Feres, the
Court found that Congress' provision for compensation under the
Veterans' Benefit Act, 72 Stat. 1118, as amended 38 U.S.C. §301
[VBA], to servicemen killed or injured in the line of duty, in the
absence of an express provision to adjust for dual recoveries under
at 162.
30Lewis Carroll, Alice's Adventures in Wonderland, Ch. 12.
31Charles Dickens, Oliver Twist, Ch. 51.
11
PAGENO="0109"
105
the VBA and the FTCA, indicated that Congress did not foresee FTCA
recovery by servicemembers.32 The continued vitality of this
Veterans' Benefits Rationale is not entirely clear.33 In any
event the Veterans' Benefit Rationale does not support the ~
Doctrine. Moreover, the FTCA contains the very provision the
Supreme Court found to be lacking. The Court simply choose to
ignore it.
Congress was not obliged to provide an express mechanism to
avoid dual recovery under VBA and the FTCA. The FTCA makes the
United States liable for the negligence of its employees "to the
same extent as a private individual under like circumstances."34
At the time of enactment, it was well settled that payments made by
a tortfeasor to an injured party may be shown in mitigation or
reduction of recover.35
Under the cannons of statutory construction, Congress is
presumed to know the common law.36 Furthermore, absent any
expressed intent by Congress to abrogate the common law, the Courts
32Feres v. United States, 340 U.S. 135, 144 (1950).
33Compare United States v. Johnson, 481 U.S. 52, 58 n.4 (1985)
(indicating that this rationale is "no longer controlling")
~~28 U.S.C. §2674.
~ Southwestern Brewery & Ice Co. v. Schmidt, 226
U.S. 162 (1912); Bell-Knox Coal Co. v egp~y, 152 Ky. 415, 153
S.W. 465 (1913);
U.S. v. Locke, 471 U.S. 84 (1985); federal Savings &
~iiInsurance Corp. v. Quinlan, 678 F.Supp. 174 (E.D. Mich. 1988);
Singer, ~iitJierland on Statutory Construction, §50.01 at 422 (4th
Ed. 1984).
12
PAGENO="0110"
106
will not construe a statute in derogation of the common law.37
The history of the Veterans' Benefit Rationale emphasizes its
inherent weakness. In Brooks v. United States, 337 U.S. 49 (1949),
the Court permitted two servicemen who were injured in an off-duty
accident caused by a government employee to recover under the FTCA.
The Court stressed that "nothing in the Torts Claim Act or the
veterans laws ... provides for exclusiveness of remedy. .138
Moreover, the Court observed that while the FTCA contained three
exclusive provisions, 28 U.S.C. SS2672, 2676, and 2679, the Act is
silent with respect to servicemembers as plaintiffs.39 The Brooks
Court indicated that VBA compensation would be offset against any
FTCA recovery awarded a servicemember.40 Upon remand, the Fourth
Circuit ordered such an offset or adjustment.41 This result
complies with the language of section 2674.
In Feres, the Court cited the lack of any provisions to adjust
dual recoveries under the FTCA and the Veterans Benefits Act (VBA),
72 Stat. 1118, as amended, 38 U.S.C. S30l, ~ ~q., as "persuasive
[evidence] that there was no awareness that theAct [FTCA] might be
interpreted to permit recovery for injuries incident to military
37Brown v. Barry, 3 U.S. (3 Dall.) 365 (1797); Shaw v. North
Pennsylvania R. Co., 101 U.S. 557 (1879).
38373 U.S. at 53.
39Id.
401d. at 53-54.
41Brooks v. United States, 176 F.2d 482 (4th Cir. 1949).
13
PAGENO="0111"
107
service' 42 However, in United States v. Shearer, 473 U.S. 52
(1985), the Court stated that this rationale was "no longer
controlling" ;43only to reverse itself in Johnson.44 *
These abrupt changes in the views of the Supreme Court about
the vitality of the Veterans' Benefits Rationale are but one
measure of its inherent weakness. Another is found in decisions of
that Court. Both before and after Feres, the Court has allowed
servicemexnbers to recover under the FTCA despite their prior VBA
recovery.45
For example, in Brown, the Supreme Court stressed that because
"Congress had given no indication that it made the right to
compensation (under the VBA) the veterans' exclusive remedy ... the
receipt of disability payments ... did not preclude recovery under
the Tort Claims Act" ,46 Moreover, as the lower courts have
recognized, theVeterans' Benefits Rationale is not a justification
or support for the Feres Doctrine, particularly in view of its
episodic application.47
Unfortunately for the injured serviceraember and his or her
42340 U.S. at 144.
at 58n.4
~~48l U.S. at 689-690.
45Broolcs, 337 U.S. 49 (1949); United States v. Brown, 348 U.S.
110 (1954).
46johnson, 481 U.S. at 698 (Scalia, J., dissenting).
~ citing Hunt v. United States, 636 F.2d 580, 598 (D.C.
Cir. 1980). Accord, Cortez v. United States, 854 F.2d 723, 727
(5th Cir. 1988). (receipt of benefits is not sufficient to warrant
Feres bar).
14
PAGENO="0112"
108
family, the decisions treat the availability of Veterans' Benefits
in the abstract. What the Courts overlook is that the denial of
such benefits by either the Secretary for Veterans Affairs or one
of the Service Secretaries is not a prerequisite for a
servicemernber's lawsuit. On the contrary, such a denial is
completely independent of the servicemember's suit.48
An equally strong and fatal objection to the Benefits
Rationale is that it fails to discriminate between those injuries
incurred "incident to service' and all others. A servicemember is
entitled to benefits for any injuries suffered while in the
service.49 Consequently, the only logical result of the
application of the Veterans' Benefits Rationale is the blanket
denial of all claims by servicemembers. Yet this is exactly what
the Supreme Court refused to do in Brooks and Brown.
Moreover, veterans' benefits are based on governmental largess
whose "underlying principle of pension and compensation is based
upon the desire of a grateful Government to supplement the earning
capacity of the veteran in civilian life prøportionate to the
degree of his disability which has directly diminished that
capacity" .50Accordingly, veterans' compensation has been described
by the Supreme Court as "a mere gratuity for which no suit can be
48Joseph v. United States, 505 F.2d 525, 527 (7th Cir. 1974).
~~38 U.S.C. fflOl(l6); 105(a). ~ Parker v. United.States,
611 F.2d 1007, lOl2n.6 (5th~Cir. l~80).
50H.R. Rep. 2301, 79th Cong. 2d Sess. 4 (1946).
15
PAGENO="0113"
109
maintained' 51
Furthermore, veterans' benefits are not identical to benefits
provided by workers' compensation law. Such laws, whether federal
or state, invariably contain provisions making recovery of benefits
the workers' only remedy.52 Experience demonstrates recovery
under the workers' compensation statutes is more likely than under
the Veterans' Benefit Act and veterans' benefits can be terminated
more easily than workers' compensation awards.53
Finally, the benefits that the VBA provides are a grossly
inadequate substitute for full recovery in tort,54 These benefits
do not compensate the injured servicemember for his or her pain and
suffering, loss of consortium and loss of enjoyment of life; of
thus, they fail to make the servicemember and his or her family
whole.55 The existence of veterans' benefits may solve society's
conscience and make the F Doctrine more palatable.56 The
availability, however, of such partial conditional alternative
benefits does not justify depriving servicemembers of
congressionally provided rights under an FTCA.
51~iiberschein v. United States, 266 U.S. 221, 225 (1924).
52~Johnson, 481 U.S. at 698, citing 54 U.S.C. §8116(c) (Scalia,
J., dissenting).
53Note, From Feres to Stencel: Should Military Personnel Have
Access to FTCA Recovery?, 77 Mich. L. Rev. 1099, 1106-08 (1979).
~ Howland, The Hands-Off Policy and Intramilitary Torts,
71 Iowa L. Rev. 92, 133-37 (1985).
55See Id.
v. United States, 636 F.2d 580, 598 (D.C. Cir. 1980).
16
PAGENO="0114"
110
C.
1. High morale, not of discipline is the factor which is critical
to ensuring the successful and efficient functioning of the Armed
Services. The Military Discipline rationale was not one of the
foundations for the doctrine set forth in Feres v. United States,
340 U.s. 135 (1950). Perhaps sensing the inherent flaws in the
first two Feres rationales, the Court later articulated the
Military Discipline Rationale as the best support for the
doctrine.57 Brown explained that the Military Discipline
Rationale was based on a fear `that FTCA suits by service personnel
may have an adverse impact on military discipline.581n reality,
this rationale is the weakest and most erroneous of the Feres
rationales.
The inherent error and theoretical weakness of the Military
Discipline are reflected in the attempts of lower courts to justify
and defend it. Some have stated that suits by service personnel
would erode the security and defense of the country.59 Others
have indicated that "it is the suit, not the recovery, that would
be disruptive of military discipline. .60 Significantly, these
57united States v. Brown, 348 U.S. 110, 112 (1954); United
States v. Shearer, 473 U.S. 52, 57 (1985); Chappel v. Wallace, 462
U.S. 296, 299 (1983); United States v. Muniz, 374 U.S. 150, 162
(1963)..
58348 U.S. at 112.
~ Jaf fee v. United States, 592 F.2d 712, 717 (3rd
Cir. 1979). .
60Henninger v. United States, 473 F.2d 814, 815 (5th Cir.
1973). .
17
PAGENO="0115"
111
explanations are presented as self-evident, without evidence or
logic to support them. Nor have those commentators who approve of
Feres offered any evidence to support the Discipline Rationale
beyond citation to prior decisions.61
These pronouncements purport to advance a theory that it is
coercion which motivates service personnel to fight. This kind of
conjecture which the Supreme Court has rejected as a grounds for
denying federal prisoners the right to receive under the FTCA.62
Even at the time ~ was decided, overwhelming evidence
existed which refuted the premise of the Discipline Rationale.
This evidence was the fruit of the research of the Armys
historical teams during the Second World War. Their interviews of
thousands of soldiers fresh from combat represent the first
systematic attempt to study human behavior in combat situations.63
This research produces some startling findings. Most
important of which is that soldiers in combat do not view
themselves as part of a hierarchical military organization.
Instead, they see themselves as rough equals within small groups of
six or seven.64
Both General S.L.A. Marshall and Samuel Stouffer have relied
~ Note, Why Congress Should Not Legislatively
Repeal the Feres Doctrine - A Struggle in Equity, 18 Tex. Tech. L.
Rev. 819 (1987); Note, In Support of the Feres Doctrine and a
Better Definition of Incidence to Service', 56 St. John's L. Rev.
485 (1982).
62~ited States v. Muniz, 374 U.S. 150 at 16 (1963).
63j~ Keegan, The Face of Battle, 70-71(1976).
64Keegan, at 51.
18
PAGENO="0116"
112
on these studies in their seminal works on armies in combat.
General Marshall concluded that an army is a social mechanism which
is governed by its own laws, customs, and mores. Accordingly,
discipline imposed from above is of limited utility in motivating
men to fight. Consequently, General Marshall argued that an army
should strive to forge and nurture close bonds of friendship which
are centered on an individual who is identified as a "natural
fighter". Such relationships will ensure that no one shrinks or
runs away from battle.65
Stouffer reached an almost identical conclusion. He found
that 39% of enlisted men surveyed reported that they were motivated
by a desire to end the task. Group solidarity was cited by 14% of
enlisted personnel and 15% of officers. Only 1% of enlisted men
cited discipline as a motivating factor.66
Both officers and enlisted men, however, recognized the
importance of strong personal relationships between officers and
enlisted personnel. Each group also recognized that an officer's
sincere concern for his men was a key component of successful
leadership. Ninety-seven percent of the officers believed that a
personal concern for the individual welfare of their men was
"absolutely necessary."67
65~* Marshall, Men Against Fire (1974).
66g. Stouffer, The american Soldier: Combat and Its Aftermath
108-09 (1949).
672 5. Stouffer, Suchman, L. DeVinney, S. Star & R. Williams,
Jr., The American Soldier: Adjustment During Army Life 385-88
(1949).
19
PAGENO="0117"
113
Like General Marshall, Stouffer concluded that it was the
personal relationship between members of a combat team which was
the crucial factor in battle; formal discipline played little, if
any, role in the effective functioning of a combat team.68
Research conducted during the Korean and Vietnam actions
confirmed these conclusions. The desire to "get it over and return
home" and identification with a small group were primary
motivations of soldiers under fire. This research produced no
evidence that "the traditional structure of military discipline
contributes to combat effectiveness. ,~69
Though a soldier's identification with his friends was often
at odds with military authorities, it contributed to combat
effectiveness.70 Rigid discipline actually erodes morale,
loyalty, and efficiency.71 Similar conclusions have been reached
concerning the motivation of ancient Greek armies.72 "In the last
analysis," a leading military theorist hast stated, "success in
at 127. See also, J. Baynes, Morale: A Study of Men and
Cour~g~ 253-545 (1967) (listing the factors which created high
morale and performance of the 2nd Scottish Rifles in the Battle of
Neuve Chappelle, March 9-15, 1915).
69D. Cortright, Soldiers in Revolt 225 (1975).
70Little, Buddy Relations and Combat Performance, in The New
Military Changing Patterns of Organization 195 (M. Janowitz, ed.
1964).
at 25-26.
72See generally, V. Hanson, The Western Way of War: Infantry
Battle in Classical Greece (1989).
20
PAGENO="0118"
114
battle is a matter of morale. ~
A recent study by the United State Army Reserve of the
attrition rates of junior enlisted personnel in reserve troop units
reached the same conclusions.74 It found that the most important
reasons for the failure of Reservists to re-enlist were lack of
self development, lack of experience to be proud of, lack of unit
leadership, lack of leader caring and lack of unit cohesion.75
It concluded that leaders must spend quality time with their troops
in order to determine "what constitutes fair decisions, to show
respect for the soldier's time and to provide growth and
development" 76
Significantly, the keen emphasis by some courts on the
importance of military discipline is not reflected in military
doctrine or law. For example, neither military doctrine nor law
demands unquestioning obedience to orders. Both require
servicemembers to ignore or disobey illegal orders.77
Additionally, Army doctrine recognizes the value of
initiative, rather than blind obedience:
73Ardant Du Picq, Battle Studies: Ancient and Modern Battle
(1946).
74See generally, 1988 Survey of United States Army Reserve
~SAR) Troop Program Unit (TPU~ Soldiers: Final Report (1 March
1989) (Westate Report).
75westate Report at 74.
76~~ at 79.
77United States v. Calley, 22 C.M.A. 534, 48 C.M.R. 19 (1973);
see generally, R. Rivkin, The Rights of Servicemen 105 (1987); 3.
Tomes, The Servicemember's Legal Guide 24-25 (1987).
21
PAGENO="0119"
115
(Initiative] requires a willingness and ability to act
independently within the framework of the higher commander's
intent ... [I]nitiative requires audacity which may involve
risk-taking and an atmosphere which supports it. ... In the
chaos of battle, it is essential to decentralize decision
authority to the lowest practical level because
overcentralization slows action and leads to inertia.
Decentralization demands subordinates who are willing and able
to take risks and superiors who nurture that willingness and
ability in their subordinates.78
Indeed, the power of modern weaponry and the vulnerability of
communications systems during battle have made decentralization and
initiative, rather than blind obedience to orders, a key
operational concept for modern armies.79 One scholar has stated:
Decentralization of tactical control forced on land
forces has been one of the most significant features of modern
war. In the confu,sed and often chaotic battlefield
environments of today, only the smallest of groups are likely
to keep together, particularly during crucial movements.
Small groups and their leaders must be capable of going it
alone 8u
The United States Army has responded to these studies by
reorganizing its structure to take advantage of the dynamics
and friendships of small groups.81
Morale, the Army recognizes, is the glue which binds such
groups together into cohesive military units.
Cohesion results from the respect, confidence, caring and
communication that binds members of a unit together-mentally,
emotionally and spiritually. The level of cohesion depends upon
how well the unit can work as a smoothly functioning team to
78Department of the Army Field Manual 100-5, Operations (May
1986) at 15.
791d.
80j~ English, A Perspective on Infantry 282-83 (1981).
8~J. Keegan, The Face of Battle 51 (1976).
21
PAGENO="0120"
116
accomplish a mission in peace or war 82 Caring must permeate all
levels of a military unit 83 A soldier s courage and will under
stress will be strengthened by the belief that his aeaders and
peers will try to help him because they care for him 84
As one student of military jurisprudence has pointed out
justice and compassion are deeply ingrained in military law 85
Throughout history great military leaders have understood and
treated soldiers as moral beings of worth 86 This lesson is
driven home to the Corps of Cadet at West Point who march by a
statute dedicated to the American Soldier on whose base is
inscribed The Lives and Destinies of Valent Americans Are
Entrusted to Your Care and Leadership 87 In LTC Hagan s pithy
words, Successful leaders have long known that soldiers have souls
and that to discipline one must care, to care on must
discipline 88 Unfortunately the Feres Doctrine depreciates a
soldier s soul and worth by treating him or her as a second class
citizen not worthy of the rights given to all other citizens.
82Department of the Army Field Manual 22-100, Military
Leadership (Oct 1983), at 156 (Emphasis added)
83
84
85Hagan Overlooked Textbooks Jettison Some Durable Military
Law Leaends 113 Mil L Rev 163 l63n 1 (1986)
86~*, citing R. Scott, The Military of Law of England at xvi
(London 1810).
87j~j (Emphasis added)
88Id
23
PAGENO="0121"
117
Part of caring and recognizing the worth of soldier is
ensuring that wrongs and injuries are completely and quickly
remedied. The military teaches that such remedial action is one of
the cornerstones of leadership. At the most fundamental level, it
involves counselling an intermediate level leader on the proper way
to lead soldiers, and requiring the counselee to apologize to a
soldier he or she has wronged.89 At a higher level, caring
requires the Government to compensate, fully and fairly, soldiers
injured by its negligence. To the extent Eeres denies
servicemembers of full and just compensation for their injuries, it
tells them that society does not care for them or value their
sacrifices. Such a message is detrimental to a strong, effective
military.
The experiences of those who have seen the `Face of Battle" at
first hand and survived, often poignantly and unconsciously refute
the foundation of Feres' Discipline Rationale. During World War
II, Jack Keil was a bombardier on a B-24 assigned to the 15th Army
Air Force. Several years ago, he described his wartime experiences
in a column entitled "Above and Beyond" which regularly appears in
the Smithsonian's Air & Space Magazine.
At the conclusion of his narrative, Mr. Keil pondered the
question, `What makes men fight?". He concluded:
But no one I knew went that far to avoid combat
(i.e., deliberately injured themselves] - we
were fearful of what others would say. We flew
not for the American flag but because we couldn't
89~~ at 279-282. These pages of FM 22-100 are attached as
"Appendix A" of my testimony.
24
PAGENO="0122"
118
stand to be suspected of cowardice. Many heroes
died for their countries simply because they were
afraid of looking bad. That's why crews plowed
through fighters and flak when they could have
claimed a roughrunning engine and turned back, and
I suspect that's why infantrymen went on seemingly
hopeless reconnaissance patrols and submariners
pursued the enemy through mined waters. It was
that unspoken fear that banded us together in
1944. All we had was each other.90
What happens to servicemembers' morale when they learn that
they cannot obtain redress in the courts for violations of their
constitutional rights--the very Constitution they have sworn to
uphold and defend? Justice Scalia has poignantly answered this
question:
After all, the morale of Lieutenant Commander
Johnson's comrades-in-arms will not likely be
boosted by news that his widow and children will
receive only a fraction of the payment they might
have recovered has he been piloting a commercial
helicopter at the time of his death.91
2. Nor do suits by Servicemembers undermine military Discipline
or involve the judiciary in sensitive areas. Any disruption of
military discipline or operations created by a servicemember's FTCA
suit is no greater than that which occurs in other contexts. A
suit by a civilian is at least as disruptive, Similarly, the
military is disrupted when a servicemember sues for nonincident-to-
service injury.92 Certainly the litigation by a servicemember's
90J. Keil, "Above and Beyond", Air & Space Magazine, pp. 24,
25 (February/March 1990) (Emphasis Added).
91United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia,
J. dissenting).
92United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia,
J. dissenting); United States v. Stanley, 483 U.S. 669, 703 (1987)
(Brennan, J. dissenting).
25
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119
defense counsel during a court-martial of the lawfulness of an
order raises the very issues Feres tries to avoid.93 In addition,
federal court intervention is unlikely to be more disruptive than
the military's own procedures for resolving grievances, such as an
Inspector General investigation or an Article 138 complaint under
the Uniform Code of Military Justice, 10 U.S.C. §938.
Despite the fact that their lawsuits are frequently dismissed,
servicemembers continue to press claims for relief under the
FTCA.94 Servicemembers have also brought suit under other
statutes, such as the Privacy Act, 5 U.S.C. §552(a).
One commentator has observed:
[T]here is no evidence that negligence actions by
servicemembers over the past twenty-five years have
degraded the military mission.
The military soldier has also been litigious in
other areas. Although this litigation has not been
particularly productive for the plaintiffs, servicemembers
have vigorously asserted their positions in direct court
actions against high ranking officials. The proliferation
of this constitutional litigation has apparently not
93Military courts often review matters that have serious
implications for disrupting discipline. For example, to convict a
servicemember of a violation of Articles 90, 91 or 92 Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §S890-892 (1982), involving
disobedience of orders, the prosecution must prove that the order
was lawful, United States v. Martin, 1 C.M.A. 674, 5 C.M.R. 102
(1952); United States v. Smith, 1 M.J. 156 (CMA 1975). These
court-martial confrontations may be worse for a commander than
testifying in a federal district court far from the military base.
~ ~ Making Intramilitary Tort Law More Civil: A Proposed
Reform of the Feres Doctrine, 95 Yale L.J. 992, lOO4n.47 (1986).
~ Zillman, Intramilitary Tort Law: Incidence to Service
Meets Constitutional Tort, 60 N.C.L. Rev. 489, 511 nn. 129 & 130
(1982) (of 147 Fe~e~ cases decided between 1955 and 1981, only
eight were decided in the plaintiff's favor); Note, United States
v. Stanley: Has the Supreme Court Gone a Step Too Far?, 90 W. Va.
L. Rev. 473 (1987) (in 81 cases during 1981-87, only eight
plaintiffs prevailed).
26
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120
interfered substantially with military operations.95
The government has never produced evidence that an
FTCA suit has affected military discipline.96 In fact,
the services report that discipline is at an all-time high.97
Further evidence about the invalidity of the Military
Discipline Rationale is provided by the settlement of the claims of
the family members of the crew of the U.S.S. Challenger. One of
the families involved was that of an Air Force Lieutenant Colonel
who was on active duty at the time of the explosion of the
orbiter.98 Recently, the Government settled the case of Kendrick
v. United States, 877 F.2d 309 (4th Cir. 1989), Petition for Cert.
dismissed in January, 1990, because rendered moot by settlement;
and Rinnelli v. United States, 706 F.Supp. 190 (E.D.N.Y 1989), 1990
appeal withdrawn on March 7, 1990 (Due to stipulation of parties
that case had been settled).
Finally, the performance of the services in Operation Desert
Shield" and "Desert Storm" should dispel forever that suits by
servicemembers would adversely effect military discipline.
Notwithstanding, all the fears of the judicial to the contrary,
there is simply no evidence that any lawsuit by any servicemember
effected the performance, good order, loyalty or discipline of any
95Rhodes, The Feres Doctrine After Twenty-Five Years, 18
A.F.L. Rev. 24, 42 (1976).
96~ Bennett, The Feres Doctrine, Discipline and the Weapons
of War, 29 St. Louis U.L.J. 383 (1985).
~ "The Military's New Stars", U.S. News & World Rep.
(April 18, 1988) at p. 32.
98"Shuttle, Settlement", Washington Post, Thursday, December
30, 1986 at p. A-i.
27
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121
of the services.
Nor does the available evidence even hint that claims filed
under the FTCA by service personnel would precipitate a flood of
litigation which would embroil the judiciary in sensitive military
matters. The experience with the claims of military retirees and
dependents is instructive. Although many such claims are paid each
year, very few of them appear as reported cases.99 This record
indicates that the armed forces settle, quickly, fairly and
efficiently at the administrative level, those claims which are
meritorious. Moreover, cases which clearly fall under the
brooks/Brown rubric also appear to be settled at the administrative
level. Accordingly, there is no reason to believe that the result
would be any different in cases which Feres currently bars.
There is another anomaly in the jurisprudence of the Fer~s
Doctrine. As the payment of the FTCA claims of military retirees
demonstrates, the Feres Doctrine does not bar all claims arising
from or incident to a servicemember's service. Over a century ago,
the Supreme Court held that military retirees remain members of the
armed forces after their retirement.100 it stated:
"It is impossible to hold that men who are by
statute declared to be part of the army, who nay wear
its uniform, whose names shall be borne upon its register,
who may be assigned by their superior officers to specified
duties by detail as other officers are, who are subject to
the rules and articles of war, and may be tried, not by a
99H.R. Rep. No. B, accompanying H.R. 536 (June 15, 1989),
101st Cong., 1st Sess. at 8 (`During fiscal years 1984-1988, the
government paid about $60 million per year in malpractice
settlements to dependents and retirees.)
100~j~ted States v. ~ 105 U.S. 249 (1881).
28
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122
jury, as other citizens are, but by a military court-martial
for any breach of those rules, and who may finally be
dismissed on such trial from the service in disgrace are still
~ in the military service.101
In ~ the Supreme Court pointed out that ` military
pay is (c]ompensation ... continued at a reduced rate, and the
connection is continued with a retirement from active service
only. .~102
10. at 246 (Emphasis in the original). See ~ Kahn v.
Anderson, 255 U.S. 1, 6-7 (1921); Puglisi v. United States, 564
F.2d 403, 410 (Ct. Cl. 1977), ~ denied, 435 U.S. 968 (1978);
Watt v. United States, 246 F.Supp. 386, 388 (E.D.N.Y. 1965)
(Although it is undisputed "that retired soldier continues in the
military service of the Government,' Feres Doctrine does not bar
his FTCA claim); House, The Retired Regular Officer: Status
Duties and Responsibilities, 26 A.F. L. Rev. 111 (1987) (Although
General House's discussion focuses on retired regular Air Force
Officers, his analysis of their relationship to the armed forces
applies to all military retirees who, while on active duty, were
members of a regular component of the armed forces.); Rombauer,
Martial Status and Eligibility for Federal Statutory~ Benefits, 52
Wash. L. Rev. 227-229 (1977) (Brief History of Military
Retirement). ~ ~J,, 32 C.F.R. §64 (1988), Management and
Mobilization of Regular and Reserve Retired Military Members
(1988). During a recent shortage of strength in its Reserve
Forces, the Army announced a two (2) year project to organize a
mandatory recall of retirees in case of a national emergency.
`Test Program Begins for Recall to Active Duty", Army Echoes; U.S.
Army Finance and Accounting Center, Dept. 90, Indianapolis, Indiana
May/June 1980 at p. 1.
102105 U.S. at 245. There are numerous federal cases which
have described retired pay as reduced pay for reduced services.
~, ~ United States v. Morton, 112 U.S. 1 (1881); United
States v. Miller, 197 U.S. 223 (1904); Leonard v. United States,
279 U.S. 40 (1928); Puglisi v. United States, 564 F.2d 403 (Ct. Cl.
1977) cert. denied; 435 U.S. 968 (1978); Lockhart v. Mittlemasim,
123 F.2d 703 (2d. Cir 1941); Lemly v. United States, 75 F.Supp. 248
(Ct. Cl. 1948); Abbert v. United States, 200 Ct. Cl. 384 (1973);
Andrews v. United States, 175 Ct. Cl. 561 (1966); Watson v. Watson,
424 F.Supp. 866 (E.D.N. 1976); Chambers v. Russell, 192 F.Supp.
425 (N.D. Cal. 1961); Hopper v. Hartmen, 163 F.Supp. 437 (S.D. Cal.
1958), affirmed 274 F.2d 429 (9th Cir. 1959); Jones v. United
States, 185 F.Supp. 347 (E.D,N.Y. 1960); Hoeppel v. Westover, 79
F.Supp. 794 (S.D. Cal. 1948). See ~jgg, W. Winthrop, Military Law
and Precedents 87 (Legal Classics Ed. 1988) (Winthrop, Military
29
PAGENO="0127"
123
Ten years ago, the Supreme Court strongl~r endorsed Tyler in
McCarty v. McCarty, 453 U.S. 210 (1981). It pointed out that a
retired Army officer remains subject to the Uniform Code of
Military Justice under 10 U.S.C. §802(a)(4).103 Other provisions
of Title 10 reinforce the conclusions reached in Tyler and McCarty.
For example, military retirees may be ordered to active duty at
anytime.104 If a military retiree accepts a Federal Civil
Service job, he or she may lose part of their retired pay.105
They lose all of it if they give up their United States
citizenship,106 accept employment from a foreign government,107
or engage in certain forbidden activities during their
retirement.108
~ Many state cases which have reached the same result. ~
~ United States v. Williams, 279 Mo. App. 873, 370 A. 2d 1131
(1977); Court v. Commonwealth, 207 Va. 556, 151 S.E. 2d 384 (1966);
Elmwood v. Elmwood, 295 N.C. 168, 244 S.E. 2d 668 (1978); Harris v.
Harris, 40 N.C. App. 26, 252 S.E. 2d 95 (1979). The Comptroller
General of the United States has also expressed the Comptroller
General of the United States has also expressed the same view.
~ ~ 43 Comp. Gen. 785 (1964); 41 Comp. Gen. 715 (1962) and
23 Comp. Gen. 284 (1943).
103~~ at 222. Accord, United States v. Bowie, 14 C.M.A. 631,
632 (C.M.A. 1964) (10 U.S.C.A. §802(a)(4) (Extends to
servicemembers on TDLR because statute does not distinguish
between retirees on the basis of the reason for retirement; all
retirees ... are subject to its provisions.")
10410 U.S.C. S688(a); McCarty, 453 U.S. at 222.
1O5~ U.S.C. ff5531, ~
10658 Comp. Gen. 566 (1979).
107U. S. Comet. Article I, §9 cl .8; Watson v. Watson, 424
F.Supp. 866, (E.D.N.Y. 1976).
108Chainbers v. Russell, 192 F.Supp. 425 at 427 (N.D.Cal. 1961).
30
PAGENO="0128"
124
Since a servicemember continues to serve after retirement, it
follows that his or her treatment at a military medical facility is
incident to that service.109 Like his or her retired pay, the
reduced privileges and benefits which a military retiree receives
are extended because of his or her reduced service.110 Although
military retirees remain members of the armed forces, Feres has
never been held to bar their FTCA claims which arise from their
medical treatment and are by the military.111
Forty years of litigation by active and retired servicemembers
under the FTCA and other statutes have failed to shake or erode
military discipline in the slightest. It is inconceivable that the
legislative overruling of Feres will have any effect on the future
discipline of the armed services. After all, if that should ever
prove to be the case, Congress can quickly and effectively remedy
the situation. Under these circumstances, it is only fair to ask
in the words of a recent, popular television commercial, Where's
the Beef?'
CONCLUSION
What of the faith and fire within us
Men who march away
Ere the barn cocks say
1O9~, 10 U.S.C. §1074(a) (Retired servicemember does not have
an automatic right to medical care).
~ McCarthy v. McCarthy, 453 U.S. 210, 221-22; Tyler, 105
U.S. 249 (1881).
111Watt v. United States, 246 F.Supp. 386, 388 (E.D.N.Y. 1965)
(Denying the Government's motion for summary judgment in military
retiree's FTCA suit for injuries suffered while he was patient in
Army hospital); 1 L. Jayson, Handling Federal Tort Claims
§155.07[3)[b] [Matthew Bender 1989).
31
PAGENO="0129"
125
Night is growing gray,
Leaving all that here can win us;
What of the faith and fire within us
Men who march away?112
As Admiral Trost, Chief of Naval Operations, pointed out in
the September 1989 edition of The Officer, servicemembers and their
families give so much and ask for so little in return. Their lives
are filled with danger, hardship and loneliness. In the event of
any hostility, they are the first to suffer and die. They seek no
special treatment due to their military status. On the contrary,
they seek the same right to compensation for the negligence of a
governmental employee that is afforded all other citizens. By
virtue of their humanity, service and citizenship, they are
entitled to simple justice and equity, but Feres denies them both.
In so doing it reduces them to second class citizens.
On some future battlefield, when the decision to fight or flee
hangs in the balance, will the memory of ~ Stanl~y, Laswell or
hundreds of other such cases Convince those who man the thin line
that a Constitution which does not protect them is not worth their
sacrifices? After reviewing the judicial denial of relief to the
veterans of the Government's nuclear weapons testing programs, one
commentator answered that question in the following terms:
[T)hese cases touch at the heart of Feres,
The servicemen involved acted under military
orders while on military maneuvers. And their
own government is killing them. They cannot be
expected to support its "larger mission'. The
Army's desertion of its men will not gain their
agreement with its institutional objectives.
~2Thomas Hardy, "Men Who March Away" (~ng of the Soldiers;
5 September 1914).
32
51-768 0 92 - 5
PAGENO="0130"
126
Servicemembers have been denied relief in order
to preserve a respect for authority that already
has been destroyed Cast aside by the Feres
doctrine, they can only rebel 113
A judge-made rule should not drive sober men and women to
contemplate rebellion because it has disenfranchised them I urge
and implore you to end the treatment of servicemembers and their
families as second-class citizens by overruling Feres
113Bennett, Feres and Discipl~i.ne, 29 St. Lois U.L.J. at 410.
(Emphasis added)
II
PAGENO="0131"
127
Mr. SCHIFF. Mr. Guimond, please.
STATEMENT OF ROBERT W. GUIMOND, PH.D., J.D., PROFESSOR OF
MEDICAL PHYSIOLOGY, UNIVERSITY OF MASSACHUSETTS,
BOSTON, MA
Mr. GUIM0ND. Thank you.
It is a pleasure to be here today in support of H.R. 3407. I have
been before you in support of predecessor bills, and those more de-
tailed statements are on the record. I have submitted a formal
statement today, and I ask to have that accepted as well.
I would like briefly to amplify upon some of the points that were
mentioned earlier today, and first highlight the nonmilitary rela-
tionship between a service patient and medical personnel, such as
military doctors, physician's assistants, or nurse practitioners.
This is not an arrangement where there could be some jeopardy
in the command function or a situation where discipline would be
undermined. The relationship between a doctor and a patient is
one that is just that: A doctor and patient; there are no subordi-
nate/superior types of relationships. The standards that govern the
hospital realm clearly are standards that are established in the
medical community and brought into the military. Obviously, the
military may have its own set of regulations in concert with these,
but they are different,
Quite often we hear of the unique relationship between a service
person and his superiors. I understand that. However, I believe the
medical aspects of the military hospitals, is almost nonmilitary in
the sense that there is a great similarity between what transpires
in civilian hospitals and what goes on in Defense Department hos-
pitals in the United States.
For those reasons, I think there is a valid and crystal clear line
of demarcation that makes it appropriate and, in fact, truly neces-
sary that this aspect of the Feres doctrine be excised.
In no way will this bill undermine or interfere with any of the
other applications of the Feres doctrine where there is a valid con-
cern-one that might arise vis-a-vis the relationship between supe-
rior and subordinate individuals.
Second, I would like to touch upon the oft repeated analogy be-
tween Worker's Compensation and the Veterans' Benefits Acts.
The U.S. Supreme Court stated quite clearly in the 1949 Brooks
case, as well as in the 1953 Brown case that there were no specific
provisions in the Veterans' Benefits Act, stating that it was the
only mode of recovery. In fact, the Court noted that in circum-
stances where an individual is not on active duty, there is no
reason why one could not elect between veterans' benefits or a
court settlement. Thus the Supreme Court has maintained that
election of remedies is not inconsistent with the law.
I would like also to provide you with an anecdotal example of
how things do not always work nicely and smoothly or fairly and
cohesively in this no-fault type of very broad veterans compensa-
tion. There is no dispute on my part, or of my colleagues, that the
veterans' benefits are extensive-they are very good, the best in
the world. However, let me give you an example of an existing
problem.
PAGENO="0132"
128
A former client of mine had gone in for a D&C at age 18 in a
military hospital and came out blind, paralyzed, and couldn't
speak. Today, she is legally blind and is trying to make the most of
her shattered life, and currently attends Springfield Community
College, Massachusetts. This is her third attempt. On the two prior
attempts, because of her debilitated condition, she has had to drop
out.
One of her problems-one of many problems, besides having
severe neuromuscular difficulties-is that she is subject to uncon-
trollable epileptic seizures. Last week, when I spoke to her relative
to this hearing, she mentioned that she had several seizures in
class and had to be transported by the EMT's to a private hospital.
Apparently the rule is that EMT's will take a patient to the closest
hospital within their jurisdiction and not necessarily to a veterans'
hospital.
The point that I am getting to is that over the last several years,
by virtue of these uncontrollable seizures, which cannot be deter-
mined in advance, obviously, Denise Chafee has been brought to
various hospitals and has sitting on her bureau 2,954 dollars' worth
of medical bills from these institutions because she never received
prior approval from the VA to have this kind of work.
I am not suggesting that this is rampant, but it is an example of
an individual who is very concerned, very agitated. As a matter of
fact, she actually has made some payments to the hospitals because
of the rather abrasive and intimidating nature of their dialogs.
This example illustrates that adequately compensating one's
needs through veterans' benefits might be easier said than done.
Had she had the availability of a court suit, I am convinced that
she would have prevailed. A substantial trust fund might have
been established to maintain her and to ensure that she could go to
any hospital when it was necessary, and be treated accordingly. I
think that is an important aspect that is lacking in the current
system.
Another analogy often made is the one relating to an injured ci-
vilian individual covered by worker's compensation and the situa-
tion those medically neglected while in the military. If an individ-
ual working for a company is injured, and goes to a hospital, and
the injury is treated negligently, that individual has legal recourse.
However, if an off duty military person is injured in an automobile
accident on base, that person could sue for damages. However,
when the individual is transferred to the military hospital and dies
because of medical neglect, the estate cannot sue. This is quite in-
consistent, and is not analogous to the worker's compensation
scheme. This was an active military case.
I think therefore that the analogy relative to the medical negli-
gence component falls apart. The analogy might be appropriate in
other work related instances. I don't dispute that. Again, my focus
in on the medical negligence aspect. It could be removed from the
Feres preclusion, and not undermine discipline.
The Feres rule has given rise to many inconsistencies. Warrant
Officer Martin Gaffney provided us with a good example where his
wife, a Japanese citizen, could sue for malpractice, whereas he, a
dedicated, devoted service person, could not, if he were the direct
victim of negligent medical care.
PAGENO="0133"
129
There are two cases where two women gave birth to children
with defects by virtue of misdiagnosis of the rubella syndrome at
an earlier point in time in their pregnancies. One individual was
the wife of a service person, and was able to collect, and establish a
trust fund for the care of her child. The other individual, an active
duty servicewoman, was unable to collect either for herself or for
her child. That is another inconsistency which simply does not
make sense.
The Justice Department and the Department of Defense have
suggested that passage of this bill would also bring about further
inconsistencies. That argument is specious. The fact that under the
proposed bill, one could not recover if the improper care was ren-
dered overseas is something that clearly was stipulated in 1946 as
one of the exceptions to the Federal Tort Claims Act. Even the wife
of the service person who could sue in the United States could not
if she were negligently treated overseas. That is something that
has nothing to do with the proposed legislation. It is already an es-
tablished fact.
I would like to emphasize that I have been involved in this kind
of pursuit for 10 years, and I have attended a number of the prior
hearings, and have made an honest effort to look at both sides of
the issue objectively. I must acknowledge that there have been
enormous improvements in the quality of medical care since the
first hearings. I also acknowledge that the quality of care in the
military is generally quite fine.
However, there are instances where medical malpractice occurs,
and even if the system were to become so perfect that only one in-
dividual a year would suffer from military medical neglect, that in-
dividual should have the right to seek legal recourse in our courts
of law, as do other citizens.
In summary, I would like to emphasize that this bill is intended
to help the military. It is intended to boost morale. It is not intend-
ed to overrule the Feres doctrine at all. It is intended to make an
appropriate adjustment to a law that was ill conceived 40 years
ago, and that flies in the face of legislative intent.
It took 20 years before the Federal Tort Claims Act became en-
acted. In the course of those 20 years, sometimes military was per-
sons who could not sue, and at other times they were permitted to
sue. In the final passage of the FTCA, the military was not includ-
ed as a category of those who could not sue. Thus the Feres rule as
it applies to malpractice is a mistake from the outset. The disrup-
tion of military discipline is actually the only viable reason for the
existence of the Feres rule, and I understand that, The writers of
the bill understand that. In no way do we want to undermine disci-
pline.
It has also been suggested that somehow those medically neglect-
ed would constitute a privileged class since others injured in other
types of accidents or militarv encounters could not file suit for
damages under this bill. I can t imagine someone who is blind, par-
alyzed, and can't speak being considered a privileged member. I
can't imagine someone who has had a benign cyst removed from
his arm and today is comatose as being a privileged member. I
think it is quite clear that those individuals would only receive
what clearly is their due and has been denied them for 40 years.
PAGENO="0134"
130
I taught a course 2 years ago, a minicourse in medical malprac-
tice in the military at the University of Massachusetts. Among the
students were four veterans, one of whom was in a wheelchair. I
played the devil's advocate, and spoke to the issue of the purported
privileged class-that somehow the medical malpractice victims
would be privileged as opposed to the others who suffered injuries
of another nature. I said, to the individual who was paralyzed from
the waist down in the Vietnam War, "You could not sue for dam-
ages but these individuals could." The individual replied, "I don't
care. The fact is that you would not expect this kind of thing to
occur in a military hospital, whereas this is part of the game." This
is that unique military aspect. People understand these things
might happen in war but not in hospitals.
Similarly, I have noted over the years that, with the individuals
I have dealt with, including disabled veterans, retired military per-
sonnel and others. I have yet to find one who would consider this
type of bill to be inimical to the welfare of the military, or that it
would remotely affect discipline.
Thank you.
[The prepared statement of Mr. Guimond follows:]
PAGENO="0135"
131
Mr. chairman arK! Members of the Subccninittee:
I am pleased to appear brfore you today in support of H.R. 3407, a bill
that would permit members of the Armed Forces to sue the United States for
damages for injuries caused by improper medical care.
I had the privilege of appearing before this distinguished Subconiaittee on
prior occasions in support of predecessors to H.R. 3407. In the course of those
hearings, I presented detailed statements in support of those bills. No attempt
will be made to reiterate those statements, since they are part of the existing
record on this matter. Howover, I would like to amplify briefly on several key
issues and areas that collectively provide the firm foundation and rationale
underlying this effort to grant to members of our Armed Forces the right to seek
legal recourse in cases of negligent medical care.
I. MEDICAL MALPRACIICE CASES ARE CLEARLY DISTINOUISHABLE FROM OilIER FERES
TYPES CASES. IF LAW SUITS ARE PERMITTED, MILITARY DISCIPLINE WILI7~N(Yr
BE COMPROMISED, NOR WILL SUCH SUITS INTERFERE WITh ThE ARMED SERVICES'
ABILITY TO DEFEND ThE CCUNTRY.
If passed, H.R. 3407 would remove from the proscriptive strictures of the
Feres doctrine all causes of action relating to improper medical care given
IiT1~artment of Defense medical facilities in the United States. Otherwise, the
other broad applications of the Feres Doctrine would continue to remain in
force and intact.
In a series of decisions, cormnnly referred to as the Feres doctrine, the
United States Supreme Court implied an exception to the Fe~i~T Torts Claims
Act of 1946 (FICA). The broad boundries of this jtxlicial doctrine are marked
by three Supreme Court cases: Brooks v. United States, 337 U.S. 49(1949),
Feres v. United States, 340 U.S. 135 (195O1, ~a~rxI lJnIthd States v. Brown 348
U5.110 Xl954J. Thè~gist of the Feres rule is tliit~ no ~caus~ bf Tadtfon lies
for injuries to military personnel whose injuries arise " out of or in the
course of activity incident to military service."
It is important to understand that the Feres doctrine has undergone an evolution
of its own. Most of the original consideratI~i~supporting Feres have either
been eliminated, eroded or applied with great inconsistency.
In the conmentary to follow, it will become clear that the only remaining
basis for the continued application of the Feres rule is to insure the maintenace
of discipline in the military. That emphasis is highlighted in the following
cases.
An analysis of the factors underlying Feres in Hunt v. United States,
636 F. 2d 580 (D.C. Cir. 1980) led that c6ii~Eto c.x*icitide:
"The protection of military discipline ... serves largely if not
exclusively as the predicate for the Feres doctrine. Although the Supreme
Court has woven a tangled web in its UT~&ission of the "distinctly federal"
notion and of the alternate compensation system, it has not wavered on the
importance of maintaining discipline within the armed forces." Id. at 599.
-1-
PAGENO="0136"
1a2
The Supreme Court in Ch~ppel v. Wallace 462 U.S. 290, reaffirmed the disciplinary
factor as the principal r~ea~son ~to~ ~prectnd1ng law suits in the military for alleged
constitutional violations.
In another Feres doctrine case, the Supreme Court barred suit against the
Government for t1~~ff-duty rm.irder of one servicemember by another. United States
v. Shearer, 473 U.S. 52 (1985). The Court: noted that the suit "might iñafr
esséitfaliiiilitary discipline. .. ." since the suit "requires the court to
second-guess military decisions." Id. at 56.
It becomes clear from the foregoing, that the maintenance of military
discipline or order are at the core of the Feres rUle. Consequently, it is irrational
to continue to apply the modern and streaiiifli~d rationale underlying Feres to
intances of negligent medical care, especially in non-combatant settin~Th
Department of Defense Hospitals in the United States.
It is farfetched to imagine that allowing victims of medical neglect to
institute law suits would even remotely affect or disrupt discipline or morale
in the Armed Forces. To the contrary, military discipline and morale can only
be adversely affected with the knowledge that instances of improper medical
care continue unabated and unredressed.
Unat positive policy consideration is there in denying service men and woman
the basic right to seek legal redress in our courts of law? Criminals in
federal prisons can, bet those serving our country cannot! There is an enormous
difference between the relationship of a serviceperson and superior officer
and a servicepatient and a military physician. The latter association is
strictly non-milatary. The relationship is one of patient-physician and not
of caTrnander-subordjnate. -
Medical malpractice is not an act of military casnand function or administration.
Rather, the cause of action is based on professional standards independent of
either the military or the Government. The standards of medical care are not
determined by arn~y regulations bet by pre-existing requirements and standards
determined by the medical profession.
Perhaps no other aspect of military life most closely approximates civilian
life and carries with it the least of the trappings or characteristics of military
existence than the non-combatant setting in a Department of Defense hospital,
situated on a military base in the United States. Such hospitals are indeed
removed from the mainstream of military life or activity. The peculiar and
special relationship of a soldier to his superiors simply does not exist between
medical doctor and patient. Therefore, that basis of support for the Feres rule
is inapplicable in military malpractice cases. -
Undoubtedly there is a need to maintain military discipline, especially
where coninand functions may be challenged, and where there is need for unfettered
exercise of discretion in carrying out military policies. However, the medical
doctor servicepatient relationship is non-military and does not involve the
carrying out of military policies. Therefore, as a matter of public policy,
suits should be permitted against the Government in cases of improper military
medical care. Society as a whole has an interest in deterring military officials
from undue acts of negligence which have no bearing on military discipline.
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II. RECEIPt OF VPtERANS' BENEFITS DOES N(Jf ANI) SHOULD t~)t A1TJX~4ATICALLY
FORECLOSE AN FICA CAUSE OF ACTION.
The argument has been advanced that the existence of a comprehensive scheme
of benefits for service-connected injuries, such as the Veterans Benefit Act,
should bar servicepersons from filing an FTCA cause of action for improper
medical care. In Brooks v. United States, 337 U.S. 40 (1949), the Supreme
Court took note that~ iéither the ~PtCA iiö± the Veterans' Benefits Act contained
a clause making it the exclusive remedy or requiring election of a remedy, and
concluded that service members on furlough could utilize the FTCA, bat veterans'
benefits would be set off against recoveries. Id. at 52-54. H.R.34O7 also contains
a similar offset provision of other Coverrrnent benefits against recoveries
under FTCA causes of action for military medical neglect.
In another Supreme Court case, United States v. Brown, 348 U.S. 110 (1954),
veterans were permitted to recover ~j~rie~ iiiTei~the FTCA, and the majority
of the Court refused to hold that the existence of a comprehensive veterans
compensation system barred suit under the FIDA. Id. at 113. In Parker v.
United States, 611 F.2nd 1107 (5th Cir. 1980), the court interpi t~edi~riJ weighed
the viflTóiis i~eanings of prior Supreme Court holdings relative to the effect of
veterans' benefits on FICA actions and concluded that receipt of such beenfits
does not automatically foreclose an FTCA action. Id. at 1050.
The above cases reveal that there are no statutory provisions precluding
veterans or active duty personnel on. furlough from electing between the
veterans `compensation scheme or an FICA award. Similarly, active duty members of
the military should also have the right to elect the most appropriate course
for their particular needs in instances of improper medical care.
I would also like to refute the often used argument that the existence of
uniform and comprehensive scheme of veterans' compensation is analogous to state
workers' compensation statutes and thus should operate as the only available
compensation vehicle in cases of military medical malpractice.
The following hypothetical illustrates how the supposed analogy breaks down.
If a civilian employee,covered by workmen's compensation,is injured in the course
of his or her employment, that individual would receive a certain compensation
depending on the extent of the injuries sustained, but would be precluded from
suing the employer . o~' fellow workers.. If, however, after the initial injury
the individual is taken to a hospital for treatment and suffers further harm due
to improper medical treatment, that person could institute a suit based on the
negligent care received in the hospital. If the same set of facts were to apply
to a servicemember, that individual would not only be barred fran suit for
injuries sustained in the course of the duty assignment, but under Feres would
also be precluded from instituting an action for the negligent care~i~ered in
the military hospital. Thus the proffered analogy of veterans' benefits and
workmen's compensation falls apart in cases of military medical neglect. The
civilian can seek legal redress, while the service person cannot.
III. INC0NSISTE~T RESULTS IN THE APPLICATION OF THE FERES RULE TO MEDICAL
MALPRACTICE CASES -
The current application of Feres to `instances of military medical neglect is
fraught with inconsistencies, oT~iresulting in irrational outcomes * For examle,
If an individual is on furlough or leave and is negligently hurt by another
government worker , he may have a cause of action depending on' the particular
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on the particular circui~stances of the case ( Brooks ~p~) However if the
individual is transported to a military hospit~ti~ ~üb~equent1y dies due to
medical t~g1ect the estate has r~ cause of action (Schultz v United ~
421 F 2d 170 (5th Cir 1969)
If a child is born to a ~man who is in the service arxl the infant is born
with congenetal rubella syedrcme as a result of negligent medical treatment
received during her basic training, neither she nor the child have a cause of
action. (Scales v. United States,, F. 2d 970 (5th Cir. 1982). However, if the
same situation occurred to the wife of an enlisted man she would have a cause
of action and able to recover for damages. (Robak v. United States,658 F.2d 471
7th Cir 1981)) Similarly an ex-arn~r man ~~1uii wft'e whose child was born
with severe defects due to negligent treatment at an Army bospital ware awarded
a damage settlement (Shaw v United States (1983) On the other hand had the
wife been a serviceperson such a settlement would have been denied It is
indeed ironic that the person serving his or her country is precluded fran
suing on the same cause of action accorded to a dependent
A recent case further illustrates the illogical and whimaical contraints
of Feres on military personnel The wife of Warrant Officer, Martin Gaffney
a J~~~se citizen was allowed to sue the United States for medical neglect
which occurred in a Navy Hospital As a consequence of the malpractice Mrs
Gaffney' s son was stillborn in addition she received an AIDS-tainted blood
transfusion As a cosequence of the latter Mr Gaffney subsequently lost a
13 month old son to AIDS and later his wife also to AIDS and he will
also succuth to the disease leaving an orphaned uninfected 7 year old daughter
After a gory and protracted legal battle Mr Gaffney was able to recover
damages for the malpractice on his wife and child However as Mr Gaffney
pointed out in a recent editorial (Boston Globe, 31 July 1991) had he been the
victim of the medical neglect in the military hospital he would not have
recovered, and his daughter would be left with nothing as well as no one
Ironically his wife, a Japanese citizen could sue for compensation
bit he could not
IV WIDESPREAD CRITICISM OF Il~E FERES RULE ESPECIALLY AS IT IS APPLIED
`10 MEDICAL NECLECI CASES -
The nreientun is clearly on the side of change Courts have become
increasingly vocal in expressing their profound concern and apprehension over the
continued application of Ferns with its harsh and unfair results especially
in relation to military n~I~1 malpractice cases See Wint v U S F2d 580 589
(D C Cir 1980) (` The Ferns doctrine clearly lives al~ET~i1gj1 i~&Eheoretical
bases remain subject to serious doubt') Labash v U S 668 F F 2d 1153 1156
10th Cir 1982) C therefore once again we are cons&áined to follow the
Ferns doctrine notwithstanding its harsh result') Veillette v United States
~i3'1' 2d 505 506 (9th Cir 1980) ( reluctantly' affirming disn~ssálTheder the
Ferns doctrine) Miller v United States, 643 F 2d 481 495 (8th Cir 1980)
V9~ do not prete~~tthis is an eaiy case Ibere is an element of
unfairmess in denying Private Miller's survivors the rights
ththard v United States~ 690 F 2d 215 225) CD C Cir 1982) ( In rendering
this decision we are not without very considerable sympathy we most
1u~ever, adhere to Ferns ) Scales v United States 685 F 2d 970 974 (5th
Cir 1982) (`we are conpelle~1~~er reluctantly, to reverse the ji4gement
Honaco V United States~ 661 F 2d 129, 134 (9th Cir 1981) (`fl~ Feres doctrine
on sh5ky grounds with its precise justification sai "confused
I~ result in this case disturbs us ..."); Troglia v. United States, 602 F.2d
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135
1334,1338 (9th Cir. 1979) (" The Feres rule has attracted more than its share
of confusion in subsequent judici~r~inions."); James v. United States, 358 F.
Supp. 2d 962 (1st Cir. 1976) (" this holding gives me 1Ttti~led~su~i~
An injustice has been done in this case and it ought to be remedied");
Parker v. United States, 611 F.2d 1008, 1014 (5th Cir. 1980) (" whether
t~~ciption ...~ whöiild be read broadly or narrowly are questions that
have been answered inconsistently"); Thomason v. Sanchez, 559 F. 2d 955,960
(3rd Cir. 1976) (" We are sympathetic with TappeTlant's~~osition...");
Peluso v. United States, 474 F. 2d 605, 606 (3rd Cir) ( the court stated
Tt wcxiidh1WeiddTie~~ the Supreme Court reversal fo the Feres doctrine, stating:
"the facts pleaded here, if true, cry out for a remedy"); Jaffee v. United States,
663 F.2d 1226, 1239, 1247 (3rd Cir. 1981) (" this is a ~
decision"); Hall v. United States, 528 F. SupP. 963, 968 (D.C. New Jersy)
(" this court iferates Tts re~Luctant conclusion.. ."; Mea~her v. United
States, 551 F.2d 313, unpublished memorandum,case # 75-24581 ~(!1 Th~ re~itilt is
extremely harsh, but unless and until the Supreme Court overturns or modifies
Feres, we are compelled to follow it.");
Coniaentators and scholars, from the outset, have been practically unanimous
in their criticism of the Feres doctrine, especially as it applies to military
medical malpractice. See ~i~Ig and Althoff, Medical Malpractice in the United
States Militai~y: the Feres Doctrine Revisited,~9~ ~th~ister (No.3~) 33,~39 (19g2J
P~Tthe asuiiñptT~ ~1i~fl~iarni ~5u r~id~o the military if servicemembers
could bring causes of action for medical malpractice seem farfetched...');
Jacoby, The Feres Doctrine, 24 Hastings L.J. 1281, 1301 (1973) (" Feres should
find no ~ li~Tdri fdi ijidical malpractice"); Note, From Feres to~F~icel:
Should Military Personnel Have Access to VItA Recovéi5~r77'1~ffEH tR~7~T~J99,
TT~TL979~) - (" Feres hii ~ th*1 inequitable disability upon
members of the aii~Fservices.") I highly recomend to the Subcorsnittee the
latter article for a thorough and cogent analysis of the flaws of the Feres
doctrine.
There is also a mounting public outcry against this inequitable and
unrealistic doctrine which has been the subject and focus of innumerable articles
in journals, magazines, newspapers, and special features on radio and television.
Within the last several years, Sixty Minutes, Twenty 1~enty, NBC Nightly News,
and the Today shows have covered various aspects of medical neglect in the
military, and all have come away very critical of the Feres rule.
The Navy Times, in recent years, has written several editorials in support
of abrid~nent of the Feres rule to allow servicepersons to sue for military
medical neglect. As ~f~Tely circulated newspaper, dedicated to the interests
of the men and women serving our country in the Navy and Marines, it is most
significant that the paper concluded that a bill, similar to the current
H.R. 3407, poses no threat to discipline, and accordingly should pass. I
suhnit for the record, a copy of the 1 March Congressional Record,p.E434, (1988)
which reprinted the 29 Feb 1988 Navy Times editorial.
It is clear from the foregoing, that the provisions of H.R. 3407 have strong
broad base support from members of all sections of the coninunity, and should
serve as further inpetus for this Subcommittee to approve this bill and eradicate
a dark page and a major blemish in the law.
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V. ThE FACT ThAT ThE G0VER~t1ENI IS TAKING SIEPS ~X) IMPROVE ThE (~JALITY OF
MEDICAL CARE IS NOT A SUFFICIENI REASON ID BAR LAW SUITS IN INSTANCES
OF IMPROPER MILITARY MEDICAL CARE
There is no question that the Department of Defense in conjunction with
the offices of the Surgeon General, the Judge Advocate General, the Inspector
General and the various audit agencies have made substantial efforts, in the
wake of the unrelenting wave of horror stories, to improve the quality of
military medical care. A number of new or revised policies have been
implemented, and others are in the offing, all designed to further identify,
improve or correct quality assurance problems which exist or might arise.
My colleagues and I applaud and support those efforts and are confident that
they will continue.
To suggest, however, as some would, that as a consequence of the improving
conditions, servicemembers should continue to be bound by the preclusive strictures
of Feres, and denied the right to seek legal redress in our courts of law, is as
spacious and as empty as the Feres rule itself. The essence of H.R. 3407 is to
right a wrong, to remove a patent injustice, to restore a basic right to all
members of our Armed Forces.
A high level and quality of medical care, though desirable and expected, is
not the determining factor as to whether one should or should not have the right
to seek legal redress for improper medical care. If there were only one instance
of medical neglect in a year, the aggrieved party should have the same rights and
access to the courts as do civilians. For that reason, and that reason alone,
H.R. 3407 should be approved.
I am not now , nor was I ever ready,to indict the entire military medical
cormminity as inept, incompetent or unconcerned. I am fully aware of the many
fine health care professionals who are competent, dedicated and concerned about
their work and the welfare of their patients. However, as prior testimony,
numerous articles in newspapers, journals and magazines, and features on radio
and television show, there are also military health care individuals, who have
their counterparts in the civilian sector as well, who are inept, unconcerned
and have the potential of perpetuating the medical abominations we often
hear about. They are the individuals who besmirch the overall good reputation
of the medical profession, and they are the ones we should assail with all the
available weapons in our legal arsenal, including law suits. Those individuals
responsible for the medical abominations that surface to our attention should
not be allowed to run for cover behind the protective mantle of the moribirxl
anachronism of the Feres rule,as it currently applies to intances of
military medical malj ice.
There are some in opposition to H.R. 3407 who suggest that the primary
purpose or gist of the proposed legislation is to improve military medical
care. and as such, the bill is not needed, as there are other more effective
mechanisms already in place for doing that. That further improvements in
medical practice might ensue as a consequence of the enactment of H.R 3407 is
certainly an important anticipated by-product of the legislation, bit certainly
not the primary aspect of it.
Tha avowed goal of this legislation is to rectify the existing flaw in the
law, to right an egrgious wrong, to accord to our service men and women the
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the sane rights enjoyed by all other United States citizens.
The attendant increased scrutiny aix! degree of accountability inherent
with the passage of H.R. 3407 would naturally point in the direction
of improved medical care. For sure, we are all in support of that effort.
The passage of H.R. 3407, in addition to rectifying a long-staixling legal
disgrace, would have the heuristic aspect of providing another mechanism to
come to bear on the incompetents in an effort to weed them from the ranks.
VI. CONCLUSION
It is clear from the foregoing that H.R. 3407 is an effort to
further improve the quality of life in the military. We all subscribe to
the notion that discipline, order aix! cohesiveness are essential elements of
an effective aix! efficient military . The passage of the proposed bill would
not challenge military decisions, nor would it undermine the crucial aix!
special relationship of the soldier to his superiors, or impinge on discipline;
rather the bill would confront improper medical procedures and personnel, aix!
accord to serviceperson~ a long-denied basic right.
The collective import of the aforementioned is to send an ui-mistakable
message to this Subccniiiittee: that the time is ripe to chart a responsible,
reasonable aix! innovative approach to solve the problems aix! diminish the
anguish engendered by the Feres disqualification of the medically neglected
military personnel.
The Supreme Court erroneously created, Congress has ignored, and the lower
courts have, under constraint, perpetuated forty-one years of inequitable
treatment to victims of improper medical care. It is time for Congress to
end its apathy, right the wrong, listen to the pleas and ongoing criticisms,
and redefine the scope of Feres in the light of the earlier stated
discrepancies. -
The proposed legislation would allow claims against the United States only
for injuries arising out of improper medical care rendered in Department of
Defense hospitals in the United States. The Feres doctrine would otherwise
remain intact for all other "special" aspects~.fl~ilitary life, and discipline
would not be jeopardized.
To that end, it is suhiiitted that this Subconinittee approve H.R. 3407.
In allowing claims against the Goveroment by active-duty victims of improper
medical care, the proposed legislation would be both timely and most appropriate
in correcting a long-standing and major flaw in the law , while allowing
the Armed Services to go about their mission of defending the country.
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Mr. FRANK [presiding]. Thank you, Mr. Guimond. I appreciate
your covering that point.
I apologize, I had a colloquy I had to have on the floor of the
House with the chairman of the Appropriations subcommittee on
the topic of sludge and specifically whether or not it should be
dumped in my district, so I ask your indulgence for having been
absent.
Mr. GUIMOND. We have enough of it as it is, thank you.
Mr. SCuFF. When do we vote on that, Mr. Chairman?
Mr. FRANK. You don't, Mr. Schiff. That is why I had to go down
there on the conference reports.
So I apologize for leaving, but I do find it is particularly impor-
tant to listen to the witnesses who express the viewpoint other
than your own, and I did hear them.
Mr. Davis, I want to call on you now, and I thank the bar asso-
ciation for offering this testimony, and please go right head.
STATEMENT OF WAYNE M. DAVIS, NEW YORK STATE BAR
ASSOCIATION
Mr. DAVIS. Thank you, Mr. Frank and gentlemen.
I would like to enter into the record the formal statement.
Mr. FRANK. It has already been done. All statements are in the
record.
Mr. DAVIS. Thank you very much.
Mr. Ostertag, the president, couldn't be here and asked me to
come in his stead.
Unlike the other witnesses I have heard here this morning-and
this is my first time here-we come not with a personal case or sit-
uation, we come here as a matter of principle. We believe that the
Feres decision was wrong, just as Justice Scalia said it was wrong
in a recent 5-to-4 decision.
Mr. FRANK. In which he was-let's be clear-unfortunately on
the four.
Mr. DAVIS. You are correct, yes. But there is motion, Mr. Chair-
man.
Mr. FRANK. Right. I understand. Otherwise we wouldn't be here.
Mr. DAVIS. There is motion.
I would like to address this worker's compensation thing. The
record should be perfectly clear that there should not have to be an
election of remedies as Mr. Schiff suggests. I see no reason why a
person who devotes themselves to the military should give up a
right that every civilian employee in the United States has.
It is well known-and I assume it is the same in other States as
it is in New York State-that if you win a tort claim for medical
malpractice and you have received a worker's compensation allot-
ment or claim, they take their lien back from that amount, so that
there is one total recovery.
I would like to suggest, the Harvard-MIT medical malpractice
study has been mentioned here before. That did not speak to mili-
tary hospitals. I would like to suggest to you that the level of care
in medical hospitals might well be the same as it is in civilian hos-
pitals, and that tells you that there have been hundreds of thou-
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140
sands of cases of medical malpractice in the U.S. military in the
last 41 years-just has to be.
If that is the case, and if physicians and other health care pro-
viders in our military services are not held accountable, this is a
situation that will continue to exist. You as Congressmen have to
be accountable, or your constituents treat you roughly and you are
no longer a Congressman. Why should physicians and dentists and
other health care providers be treated differently than the rule of
life?
I noticed something here this morning that I think is interesting.
I noticed that the proponents of change, for the most part, are here
at their own expense, because of their own interest in their case or
in principle, while the people who come here to speak to this com-
mittee on behalf of the Justice Department and the Defense De-
partment clearly are here at the taxpayers' expense, and, not only
that, if you examine the literature you know that employees of Jus-
tice and Defense take it upon themselves to write Law Review arti-
cles again at taxpayer expense. I think that this says something
about the entrenched position of the Government with reference to
our taking care of our military personnel.
I would like to suggest that Mr. Gerson and Mr. O'Donnell either
haven't been in the military themselves-
Mr. FRANK. Mr. Davis, I don't think that is relevant. There is
really no point in this kind of personal characterization. Whether
or not they served in the military is totally irrelevant.
Mr. DAvIS. I withdraw it, Your Honor.
Mr. FRANK. Go ahead.
Mr. DAVIS. I simply suggest that it is inappropriate for such a
one-sided presentation by the Government. I cannot believe that
the public, if they knew what our Government was doing, would
approve of it.
I endorse my fellow counsels' statements at the table and thank
you for the opportunity.
[The prepared statement of Mr. Davis follows:]
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New York State BarAs~odolIon
October 2,, 1991
Modification of the FERES DOCTRINE and
Amendment to the Federal Tort Claim Act
Chapter 171 Title 28 Us Code
My name is Wayne Davis and I am an Albany,, New York
attorney speaking on behalf of the New York State Dar
Association. I appear before this sub-committee to express
that Association's unequivocal support for amendment of the
* Federal Tort Claims Act for the reasons set forth in its
report which I ask that you make a part of the record of
these proceedings.
Informed consent has a known and reliable definition
when used between patient and physician in the civilian
* world.
The federal government has knowingly expanded and
warped that definition when dealing with our volunteer
citizen-warriors as it relates to health care professional
malpractice.
First,, in recruiting for our volunteer armed services~
the government advertises that a portion of their
compensation is free health care. Nowhere is the quality of
those services mentioned and armed services personnel are
not told that professional malpractice,, even gross
negligence,, may be practiced upon them by a military
IWI
NYSBA
PAGENO="0146"
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physician who is immune from legal action or personal
liability against him/her,, and not accountable to the
victims for his/her professionali~ negligent actions or
omissions.
Second,, in real life the injured armed services person
is routinely taken to the closest appropriate hospital or
clinic. The injured are not advised that they are to be
subjected to professionals who may,, without accountability,,
manipulate,, operate or desecrate their bodies. Military
health care personnel are no more amenable to legal action
than were 19th century sovereigns.
Further,, the injured armed services person is routinely
not told that he/she has a choice - - a military or a
civilian doctor. While in some settings such a disclosure
would be inappropriate,, in many non-critical situations such
a disclosure would give some service personnel pause~ and
the opportunity to make an informed choice.
In this day and age it should be unnecessary to argue
that military health care providers should be as accountable
as their civilian counterparts. Without a study of
professional competence in the military,, it seems fair to
assume that military physicians,, dentists,, and others, are
not more competent than civilian physicians and dentists,~
and perhaps~ less so. In any event accountability by
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PAGENO="0147"
143
military physicians~ dentists and health care providers
would unquestionably improve the level of health care to
service personnel and simultaneously expose incompetent
professional personnel.
To state the 1950 Feres Doctrine in 1991 is to know
that it is morally and ethically wrong,1 and legally a
maverick creature of judicial adventurism which should be
legislatively corrected. The language of the 1946 Federal
Tort Claims Act is clear and the current interpretation
manifestly wrong~ Mr. Justice Scalia said in the 5-4 dissent
in (3.5. v. Johnson,, 107 S.Ct. 2075. Justice Scalia noted
that Congress did not exempt armed services personnel from
the Federal Tort Claims Act and plainly stated that Feres
was incorrectly and wrongly decided.
To read the Justice and Defense Department objections
to equal justice is to wonder at the legal and moral compass
those Departments chart and follow. To bar the victims of
professional malpractice by armed services personnel from
litigating for assaults on their minds and bodies when in a
domestic and non-belligerent setting on the ground of
judicial interference in military affairs and as an affront
to military discipline is a cynical perversion of fact and
experience.
Justice and Defense suggest that there is in effect a
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method of compensation which is fair and adequate. They
speak,, of course,, of the Military Benefits Act and the
Veterans Benefit Act. These acts are\ neither fair nor
adequate and places armed services personnel and veterans of
military service in the position of being the recipients of
a kind of worker's compensation and limits their remedies to
these acts,, their sole legal recourse. The result is that a
person who is negligently injured by a military health care
professional and can prove it may receive a maximum 100%
disability pay.of approximately $l6~OOO.OO per year,, if that
person survives the treatment.
The monetary impact of amending the Federal Tort Claims
Act to permit the victims of health care negligence to sue
the United States,, according to the Government Accounting
Office,, would be less than one tenth of one percent of the
military budget.
The benefit would be the knowledge that a civilized and
humane nation treats its warriors with at least the same
principled regard as it .does the civilian population.
-0--
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NEW YORK STATE BAR ASSOCIATION
COMMITTEE ON FEDERAL LEGISLATION1
REPORT ON THE FERES DOCTRINE
I. Introduction
The Doctrine of Sovereign Immunity barred tort lawsuits against the United States
government until 1946, when the Congress enacted the Federal Tort Claims Act (28
U.S.C. § 1346 et see.). Four years later, the Supreme Court of the United States
partially emasculated the Act in U.S. v. Feres, 340 U.S. 135 (1950), by deciding that the
Act did not apply to military personnel. The Feres Doctrine is a judicially created
exception to the grant of federal government liability contained in the Act.
The result in Feres has drastically affected the rights of military personnel who are
subject to improper medical treatment. By statute, military doctors are not personally
liable for malpractice actions brought against them by military personnel. ~ 10 U.S.C.
§ 1089. The Feres Doctrine bars malpractice actions against the federal government for
the negligence of military doctors. Accordingly, military personnel have no legal
recourse when they are victims of a military doctor's negligence.
There are a numerous examples of military personnel injured by doctors in a non-
combat setting. In testimony before the House Subcommittee on Administrative Law and
Governmental Regulations the following examples were provided:
1. Active duty Marine Dawn Lambert testified concerning the Portsmouth
Naval Hospital surgery which left her sterile at the age of 20. Surgery was
performed on Ms. Lambert in January, 1982 for an ectopic pregnancy. In
December 1982, suffering pain, discomfort and a lump in her abdomen, she
sought treatment by a private physician. Surgery was again performed and
resulted in the discovery of numerous sponges and a radiopaque marker in
the abdominal cavity.
1. The New York State Bar Association is a voluntary statewide association of lawyers
in the United States. It presently has approximately 55,000 members. Among the
Association's many sections and committees is the Committee on Federal
Legislation, which has the responsibility to review legislation before Congress or the
President, and to suggest areas that may warrant legislative attention.
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146
2. A second witness testified that she was the mother of an active duty
lieutenant son who died as a result of an infection following a puncture
wound to his foot caused by a nail. After four trips to the infirmary for a
temperature of 105 degrees and a kidney Infection, the lieutenant finally
was admitted to the hospital. The staphylococcus infection damaged his
heart valves and the lieutenant died at the age of 25 following two open
heart surgeries.
3. Sergeant Timothy Adkins went to the dentist to have a tooth extracted. An
Infection following that extraction was neglected and the sergeant died 16
days later.
H.R. REP. No. 101-87, 101st CONG., 1st Sess., at 3-4 (1989) ("H.R. Rep. 101-87"). Based
upon the Feres Doctrine, these victims had no right to sue the federal government.
Congress has considered amending the Federal Tort Claims Act to permit litigation
against the federal government for health care negligence committed upon military
personnel. During the 101st Congress, the House of Representatives passed H.R. 536k
which Incorporated the proposed amendment. Similar bills
are expected to be introduced in the House and Senate this session.
II. Pro~posed Amendment
The amendment passed by the House of Representatives would permit claims for
personal injury and death for non-combatant activities if the claims arise out of the
negligence of a health care professional who is a member of the armed forces. H.R. 536
provides in relevant part as follows:
Section 2681. CertaIn claims arising out of medical care provided members of the
Armed Forces
(a) CLAIMS AUTHORIZED. -- Subject to the provisions of this chapter, claims may
be brought under this chapter for damages against the United States for personal
injury or death of a member of the Armed Forces serving on active duty . . . or on
full-time National Guard duty. . . under the conditions prescribed In this section.
(b) LIMITATION TO MEDICAL CARE IN FIXED FACILITIES. -- The personal Injury
or death referred to in subsection (a) must have arisen out of noncombatant medical
or dental care furnished the member of the Armed Forces in a medical facility
operated by the Secretary of the military department or any other medical facility
operated by the United States.
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147
III. The Judicial Theory and its Shortcom~ng~
The judicial theory underlying the ~ Doctrine is that the government should not
be responsible for Injuries or death sustained by military personnel if the injuries or death
were "incident to service." Proponents of the Feres Doctrine state that the doctrine is
necessary to preserve military discipline and to shield military command from judici;l
interference.
The doctrine makes sense and serves its stated goal when It bars recovery for
accidents resulting in injury or death during military, and especially combat,
maneuvers. However, one cannot ignore the difference between injuries sustained by an
infantryman obeying an officer's orders in the sands of Saudi Arabia and injuries
sustained by (or the death of) a mother during childbirth at the hands of an officer-doctor
in a military hospital within the United States. In the latter situation the ~ Doctrine
makes no sense. Barring the mother's claim does not preserve military discipline or
shield the military command from judicial interference; instead, it creates an injustice.
Although one of the benefits of military service is the provision of medical care to
military personnel free of charge, the Fares Doctrine exacts too great a price for that
benefit. Many private employers provide free medical coverage to their employees.
Yet, these employees do not waive any malpractice claims in exchange for this
coverage. Our men and women in the armed forces should not be forced to forego
legitimate malpractice claims in exchange for receiving their medical care.
Proponents of the ~ Doctrine also assert that there is already a statutory
remedy in place. The Veteran's Benefit Act, 38 U.S.C. SS 301-36, provides for benefits
for disabilities resulting from service-connected personal injuries. However, the
limitation of that remedy is reflected in the compensation awarded to military personnel
after arduous administrative proceedings to establish the disability. The annual payment
for a person with a 100% disability is $18,444.00; with an 80% disability, $9,852.00; and
with a 50% disability, $5,352.00. See 38 U.S.C. S 314.
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A budget-minded Congress need not be concerned with the cost of the proposed
amendment. It was estimated by the Congressional Budget Office in 1989 that the
legislation would cost $30 million annually, see H.R. Rep. 101-87, at 8, a minute fraction
of the Nation's military budget.
Armed forces personnel should be given the right to recover for health-related
negligence. Fundamental fairness dictates that the ~ Doctrine should be
legislatively amended to permit medical malpractice claims under the Federal Tort
Claims Act when the injuries sustained are not combat-related. The Committee urges
the U.S. Congress to take prompt action for the benefit of the men and women In our
armed forces.
Dated: New York, New York
March, 1991
Respectfully submitted,
COMMITTEE ON FEDERAL LEGISLATION
Stewart D. Aaron, Chair Patrick J. Feeley
Carl M. Bornsteln Sherman P. KImball
Peter A. Cross Timothy J. Lawliss
Jeffrey C. Dannenberg Mark J. Mahoney
Wayne M. Davls~ Craig R. Mausler
Rhea Kemble Dignam Charles M. Newman
James I. Edelson David Schrader
John H. Elckemeyer Lewis S. Wiener
* Draftsman of this report
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Mr. FRANK. Mr. Davis, I appreciate your coming. I did want to
just express my difference with your view there. I don't think there
is anything inappropriate with the agencies of the executive
branch coming and expressing their viewpoint, and I think what
people can be assured of is that, whether it is this subcommittee or
any other, I think we are all capable of arranging a broad diversity
of views. So while I appreciate much of your testimony, I did want
to differentiate myself from that.
But I would also ask you one specific question, which I wasn't
sure of the answer to. If you are an employee and your employer
provides the medical care, are you debarred from a malpractice
suit because of worker's compensation laws?
Mr. DAVIS. Absolutely not.
Mr.. FRANK. That is what I thought.
In that case, the bill we have would be completely analogous to
what goes on in the private sector. There would be no duality here
as opposed to there, because our bill does have a complete offset,
and if you are employed in the private sector, even if the medical
care-I realize there are 51 jurisdictions, but in the great majority
of jurisdictions, I assume-maybe all-worker's compensation does
not prevent you from suing specifically for medical malpractice
even if it was employer supplied.
Mr. DAVIS. Certainly not in New York State.
Mr. FRANK. I wonder if the other relevant witnesses have any
relevant information on that.
Mr. Guimond.
Mr. GUIMOND. No.
Mr. FRANK. Mr. Putnam.
Mr. PUTNAM. I am not sure. South Carolina has some peculiar-
ities of its own law.
Mr. FRANK. I know. I have met some of them up here.
Mr. PUTNAM. For example, in our State you can opt out-either
the employer or the employee can opt out.
Mr. FRANK. We will ask the staff then. So the answer may be
that it is somewhat mixed. We will do a survey.
I have no further questions.
Mr. Schiff.
Mr. ScrnFF. Thank you, Mr. Chairman.
I just have to say, though, I think my reference to worker's com-
pensation has been a bit misconstrued, because I can't think of a
private employer who has a 100-percent medical health obligation
to its workers as the military does. So I don't think there is an
exact analogy there.
I am merely saying, though, that those who can come in and say,
"If I were in private life I could sue, but here in the military I
can't," as we have heard today, do have analogies in private enter-
prise.
For example, if I am an employee of a company and I slip and
fall in the employee cafeteria, I normally cannot bring a tort claim
action if there is a workmen's compensation system. Isn't that
right, gentlemen?
Mr. DAVIS. That is correct.
Mr. SCHIFF. That is the point.
Mr. FRANK. Would the gentleman yield?
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150
Mr. SCHIFF. Yes.
Mr. FRANK. The point then is that if, however, you then went to
get medical treatment supplied by the company and it was negli-
gent, could you sue for malpractice? This bill doesn't give you a
right to sue with a slip and fall-it treats the two separately.
The point I thought the gentleman was making was that this bill
would empower military personnel greater than civilians, and I
don't think that is true.
Mr. SCHIFF. If the chairman would yield for a moment.
Mr. FRANK. It is your time.
Mr. SCHIFF. Thank you.
I don't know that I can find an exact analogy to the military, but
I would say that where one could sue a medical practitioner under
tort liability as the chairman has described, if something happened
in the medical practice, something just went wrong-in other
words, there is no negligence, but not every surgery or anything
else comes out with a perfect result-the military would pick up
additional disability and additional benefits whereas in civilian life
there would be no further action against the medical practitioner
that I know of.
I just wanted to clarify where I am coming from. There may not
be an exact analogy there. I was not trying to make an exact analo-
gy.
I would just ask a couple of questions to each of the gentlemen,
starting with Mr. Putnam.
You are obviously, all of you, very familiar with the bill in front
of us, and this bill is, by definition, limited to medical malpractice
in fixed facilities, but I would like to ask you, individually, do you
favor a broader repeal of the Feres doctrine?
Let's begin with Mr. Putnam.
Mr. PUTNAM. Mr. Schiff, I would like to see the Feres doctrine
gone. I'll be very honest with you. I see this bill as a first step in
that path to get rid of it.
I have had the unpleasant experience over the last 11 years of
sitting in a legal assistance office and talking to families and serv-
ice members, many with some of the highest decorations our coun-
try awards for valor, and having to explain to them that they
cannot recover for their injuries, whether it is medical malpractice,
a vehicle, a car wreck, or something of a similar nature, because of
the Feres doctrine.
Let me add this one point. There was some testimony here earli-
er by the Department of Justice and the Department of Defense in
the nature that people who are sick or ill are given full pay and
benefits and unlimited time off until they recover. That is absolute-
ly untrue.
What happens, in point of fact, is that each service has a medical
fitness board, and the soldier is boarded to determine whether he
or she is still fit for active duty. If the determination is made that
they are not fit for active duty, then two other determinations or
questions are raised: Can we at this point say that they will be fit
for active duty within a reasonable period of time? If the answer to
that question is yes, then they are put on the temporarily disabled
retired list.
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What happens when they go on the temporarily disabled retired
list is this. They lose all their allowances, and for a service member
that can be up to a third of his monthly income. They then lose, in
addition to that, part of their pay. Their pay as a member of the
individual temporarily disabled retired list is based solely on the
percentage of their disability. They can stay on that list for up to 5
years, at which time the service either has to discharge them and
put them on the permanent disability retired list or offer them the
option of coming back on active duty.
So to say that our folks have a lot of benefits they don't have in
civilian life is to say only half the story, I'm afraid.
Mr. SCHIFF. Like yourself, I am a judge advocate in another life.
The point is, though, not to defend that the other benefits are per-
fect, nobody suggests that, but that they are available. In other
words, those who are put on the temporary retired list and who
still receive some amount of pay don't have to show that their dis-
ability is due to any fault on the part of the Government, do they?
Mr. PUTNAM. No, they do not; that is absolutely true; it is a no-
fault system.
Mr. SCHIFF. Mr. Guimond, I would like to ask you the same ques-
tion, which is: Do you personally favor a modification or repeal of
the Feres doctrine beyond what is before you in this bill today?
Mr. GUIMOND. Like everything else in this world, there is an evo-
lution of thought, and, as I mentioned before, I have been involved
with this subject for 10 years.
My initial perceptions of the Feres doctrine were similar to what
Mr. Putnam has articulated, that it was totally absurd. But in the
give and take of testimony over the years, there has been consider-
able dialog, and I began to perceive a certain reality as to the ap-
plication of Feres in instances where discipline might be compen-
sated.
I am not as experienced as Mr. Putnam. I have not been in the
military, and I have never held the positions that he has held. He
comes from a very good sense of perspective, which gives rise to his
strong views on the matter. Nonetheless, as the years have gone
by, I began to understand that there was a need, unfortunately, to
have some type of system where results may not always be fair.
However, because of the importance of maintaining discipline, and
an uninterrupted chain of command, and because of the impor-
tance of not chilling one's future thoughts about giving a command
or an order or a policy decision, then perhaps other aspects of the
Feres need to be preserved. As far as I am concerned, the discre-
tionary function exception to the Federal Tort Claims Act could
take care of all of Feres concerns. Therefore, my answer to your
question is no. I am not interested in seeing the total abrogation of
Feres. I have made that clear in my formal statement.
Mr. SCHIFF. I don't mean to interrupt you, and I apologize, but
those lights and bells have meanings here. So I would just like to
ask yes or no, do you favor-
Mr. GUIMOND. No.
Mr. SCHIFF. You don't favor any greater change in the Feres doc-
trine than represented in this bill?
Mr. GUIMOND. At the moment, yes.
Mr. SCHIFF. At the moment.
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Mr. GUIMOND. The way the bill reads, exactly. No, no, absolutely
not.
Mr. SCHIFF. You don't favor any further modification of the Feres
doctrine than represented here?
Mr. GUIMOND. No.
Mr. SCHIFF. OK. Thank you.
Mr. Davis.
Mr. DAvIs. At this time, I agree. I would like to see how this
works.
Mr. SCHIFF. All right.
Mr. Chairman, thank you. I yield back.
Mr. FRANK. Thank you, Mr. Schiff.
Mr. Edwards.
Mr. EDWARDS. Thank you. We do have to go to the floor, Mr.
Chairman, but I think the witnesses' testimony has been very valu-
able, and it is comforting to hear them.
This is really another instance where Government really doesn't
like to be questioned on its decisions. It doesn't like to be reviewed
by anybody outside Government. We are running into that now
with habeas corpus where the Department of Justice, representing
the Government, wants to do away with habeas. It is making good
progress toward doing that. We are going to have a vote pretty
soon on it, and habeas corpus could go out the window. That is
similar to this bill, where Mr. Frank, as the author of the bill, has
said that the Government should not have the last word and be the
judge and the jury. The American system of justice should be al-
lowed to have a window to see if it can treat the people better than
the present system.
So I think your testimony has been very valuable, Mr. Chairman.
I thank you for holding this hearing today.
Mr. FRANK. Thank you, Mr. Chairman-well, Mr. Edwards has
been the chairman for so long of so many important things that I
fall into that habit.
I want to thank the witnesses as well as the previous witnesses
and the members. I think this has been a fairly useful hearing in
terms of exploring some of the issues and differences, and, with
that, I will declare the hearing adjourned, and if anybody who was
around has anything new that they would like to submit to add to
the record, we would, of course, be willing to accept it.
The hearing is adjourned, and I thank all the witnesses.
[Whereupon, at 12:07 p.m., the subcommittee adjourned, to
reconvene subject to the call of the Chair.]
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APPENDIX
STATEMENT OF SGT MAJ MICHAEL F OUELLETTE, U S A, RETIRED,
DEPUTY DIRECTOR OF LEGISLATIVE AFFAIRS, NONCOMMISSIONED
OFFICERS ASSOCIATION
Mr Chairman I am retired Army Sergeant Major Michael F
Ouellette, Deputy Director of Legislative Affairs for the Non
Commissioned Officers Association of the USA (NCOA) The
Association is a congressionally-~chartered organization with a
membership in excess of 160 000 noncommissioned and petty
officers serving in every component of the five Armed Forces of
the United States active national guard reserve retired and
veterans status The association appreciates the opportunity to
present its views on H R 3407 a bill "to amend chapter 171 of
title 28 United States Code to allow claims against the United
States under that chapter for damages arising from certain
negligent medical care provided members of the Armed Forces "
NCOA strongly supports the concept o~ H R 3407 having been
a long tine supporter of any legislation that would clearly amend
the Feres Doctrine waiving what is now sovereign immunity
against military medical malpractice claims In the same light
the association also fully understands the need to protect
military order discipline and effectiveness of the Armed Forces
The Non Commissioned Officers Association has consistently
expressed deep concern that the Feres Doctrine unnecessarily
imposes very stringent limitations on the civil liberties of
members of the Armed Forces and their survivors Feres also
allows military medical centers, hospitals and treatment
facilities to operate under almost complete immunity from the
1
(153)
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facilities to operate under almost complete immunity from the
responsibilities associated with medical malpractice. NCOA does
not; however, want to convey the impression that the providers of
military medicine are less than honorable and ethical. On the
contrary, NCOA maintains the highest level of appreciation and
respect for the military medical community. However, the
association emphatically opposes the Feres Doctrine because of
the inequitable legal divisions it imposes on society. At this
point in the history of the United States of America medical
providers are held legally responsible for the quality care
provided to all except Active Duty military personnel. NCOA
believes this a complete disregard for the rights of Americans
currently serving in the Armed Forces and is inconsistent with
law and traditional American values.
Department of Defense officials have recently expressed a
lack of support for H.R. 3407 citing that removal of the Feres
bar to medical malpractice would not further the legitimate ends
of discipline, morale, and fair compensation. DoD notes that
military personnel are compensated for service-connected injuries
and legal recoveries would be dependent on disparate state laws.
NCOA supports the H.R. 3407 for exact opposite reasons. Removal
of the Feres bar would not in the opinion of NCCA undermine
discipline, morale, and fair compensation. The majority of
members of the Armed Forces are not even aware that current
doctrine precludes them from bringing suit against the U.S.
2
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155
government. They simply perform their duties and
responsibilities believing that as members of the military
services they will be protected by the government they serve.
NCOA believes that wide.~spread publication of their lack of legal
alternatives to medical malpractice would in fact serve to
degrade discipline and morale. Military personnel are in fact
provided compensation for service connected injuries received.
However, NCOA questions that fairness of such compensation in
that it does not correspond directly to the full earning
potential military members would maintain over a full military
lifetime. The disparate state law issue cited by DoD may very
well be reality; however, a decision to file suit against the
government would be a decision made by those impacted by
perceived or alleged military medical malpractice. In other
words, the choice to sue or not would be the same as those not
affected by Feres Doctrine.
NCOA does not doubt that the Department of Defense (DoD) is
dedicated to providing the best possible level of health care and
appreciates their efforts in improved "quality assurance" and
"provider accountability". However, NCOA questions the reference
to improved frequency and vigorous review of military physician
performance and the tightening of standards as a rationale for
non~support of Feres Doctrine repeal. The mere reference to such
actions implies that there is, in fact, cause for concern over
the quality of health care provided to the members of the Armed
3
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156
Forces.
Although this association fully supports the concept of H.R.
3407 it finds considerable difficulty in endorsing the bill as
written.
NCOA's only major reservation to adoption of the bill
concerns the limitations this bill will continue to impose on
servicemembers. H.R. 3407 will limit claims to incidents of
malpractice that occur in military treatment facilities located
within the United States. As a result, H.R. 3407 will continue
to disenfranchise personnel mistreated in permanent U.S. military
medical facilities overseas. Hopefully the committee will
explore alternatives to H.R. 3407 to remedy this problem.
In conclusion, NCOA applauds the efforts of the committee to
embark on a road for correction of this inequity in law. Thank
you.
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