PAGENO="0001" bz73'~"/~J CLAIMS FOR NEGLIGENT MEDICAL CARE PROVIDED MEMBERS OF THE ARMED WRCRS~.M~.. __________________________ "~ UUV'TDEPOS1TOH\~ 9~~qii9o 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( PAGENO="0002" 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) PAGENO="0003" 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) PAGENO="0004" 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 PAGENO="0005" 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) PAGENO="0006" 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: PAGENO="0007" 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 PAGENO="0008" 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 PAGENO="0009" 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. PAGENO="0010" 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 PAGENO="0011" 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:] PAGENO="0012" 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. PAGENO="0013" 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. PAGENO="0014" 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. PAGENO="0016" 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. PAGENO="0089" 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 PAGENO="0091" 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 PAGENO="0092" 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. PAGENO="0093" 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 PAGENO="0095" 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 PAGENO="0096" 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 PAGENO="0098" 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 PAGENO="0099" 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. PAGENO="0101" 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 PAGENO="0102" 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 PAGENO="0103" 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 PAGENO="0104" 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 PAGENO="0105" 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 PAGENO="0106" 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 PAGENO="0107" 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 PAGENO="0108" 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 PAGENO="0123" 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 PAGENO="0124" 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 PAGENO="0125" 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 PAGENO="0126" 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. -2- PAGENO="0137" 133 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 -3- PAGENO="0138" 134 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 PAGENO="0139" 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. -5- PAGENO="0140" 136 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 -6- PAGENO="0141" 137 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. -7- PAGENO="0142" t!j 8 z PAGENO="0143" 139 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- PAGENO="0144" 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:] PAGENO="0145" 141 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" 142 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 -2- 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 -3- PAGENO="0148" 144 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-- -4- PAGENO="0149" 145 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. PAGENO="0150" 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. PAGENO="0151" 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. PAGENO="0152" 148 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 PAGENO="0153" 149 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? PAGENO="0154" 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. PAGENO="0155" 151 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. PAGENO="0156" 152 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.] PAGENO="0157" 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) PAGENO="0158" 154 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 PAGENO="0159" 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 PAGENO="0160" 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. 4 isbN 0-16-038554-7 90000 ~ ~ 9 780160 385544