Congress Should Not Fear to Change Feres

The Supreme Court established a rule in 1950 that became known as the Feres Doctrine:

The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.
Whatever merit the Feres Doctrine might have when applied to ordinary negligence claims, there is little reason to exempt military doctors from the same malpractice standards that permit civilian patients to recover compensation when a physician's careless acts or omissions cause harm or death.

Motivated by the death of Carmelo Rodriguez, whose skin cancer was misdiagnosed as a wart and left untreated, Rep. Maurice Hinchey will introduce a bill to permit those who serve to bring claims against the military for medical malpractice. (more ...)

In Hinchey's view, the military had no incentive to make a diagnosis that would have kept Rodriguez from returning to combat.

"They were increasingly desperate to keep people - particularly people like Carmelo Rodriguez, who was a clear leader - they were forced to overlook this, to just look away from it to just keep him there, use him as best they could," Hinchey said.

Whether or not Hinchey is right, it's difficult to argue against compensating malpractice victims for injuries caused by the military's system of health care. As Hinchey says in his press release:

Joining the military should not mean that one has to give up his or her right to hold medical providers accountable. The Carmelo Rodriguez Military Medical Accountability Act of 2008 will finally bring accountability into the military medical system and afford our service members and their families the same rights that the rest of us have when it comes to medical malpractice."

If Hinchey's bill is enacted, it probably won't solve another problem that his press release identifies:

"Carmelo's situation and this legislation speak directly to the fact that our military, including the military's health care system, is spread far too thin by the occupation of Iraq," Hinchey said. "Our military is facing shortfalls of doctors, nurses, and other health care staff across the board."

It is difficult to prove a claim of professional malpractice (particularly one that occurs in Iraq), and the military might find it less costly (or easier) to pay successful claims than to resolve the shortage of well-trained medical professionals.

It may also be difficult for Hinchey to overcome the military's entrenched resistance to accountability. Past attempts to carve a malpractice exception into the Feres Doctrine have been unsuccessful. Hinchey's bill, if enacted, would probably face a Bush veto: the president seems unafraid to show his disregard for the welfare of those who serve. The bill nonetheless deserves support.

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    UnFREAKINGbelievable (5.00 / 1) (#1)
    by txpolitico67 on Mon May 19, 2008 at 10:52:25 PM EST
    The very people who are on the frontlines defending our country are denied due process of law/a path of recourse???

    Wow.  Just when I thought it couldn't get any worse.

    Oh, my God (5.00 / 2) (#2)
    by gyrfalcon on Mon May 19, 2008 at 10:53:53 PM EST
    This poor man was actually diagnosed with melanoma in 1997 on his military intake physical.  Nobody told him what that meant or that he should do anything about it, he wasn't referred to a surgeon for treatment, he was cleared for military duty.

    The fact that he had been diagnosed with melanoma was in his medical records in the military.  According to the article, the melanoma on his buttock had spread to the size of two hands and was suppurating (giving off pus) when the incompetent military doctor told him it was just a wart.

    Incredibly, he died less than 10 minutes after the reporter first met him.

    Gross and grotesque medical negligence.  There has to be a remedy for this.  The military medical system as a whole literally killed this man.

    What a horrible story. (5.00 / 2) (#4)
    by eleanora on Mon May 19, 2008 at 11:17:10 PM EST
    How is denying proper medical care "supporting the troops"? And the military doctors must be making these bad judgments based on the decisions and guidelines made higher up in the chain of command. Our military leaders should be held accountable for this travesty too, not just the doctors.

    I've also read that they're sending soldiers with serious PTSD symptoms and other mental illnesses right back to the front lines. Combine that with the military's lowering of standards and permitting people with criminal records to enlist, and you have a recipe for disaster.

    Military Leaders (5.00 / 1) (#5)
    by cawaltz on Mon May 19, 2008 at 11:26:55 PM EST
    The military gives the command of a sailor or soldier the authority to disregard a doctor's opinion believe it or not. Doctors give recommendations that a command can follow at their own discretion. Not only that the system is rife for abuse for junior members. Its real easy for senior chain of command members to try to influence medical community folk particularly at small commands.

    My dad was career Air Force, (5.00 / 2) (#6)
    by eleanora on Tue May 20, 2008 at 12:23:46 AM EST
    along with many others in my family. My uncle who was a medic in Vietnam died at 49 in 1987 of cancer, most probably caused by exposure to Agent Orange. Just sickening to think that the best interests of the soldiers isn't the first priority in all medical decisions.

    There is no place for Feres (3.00 / 2) (#7)
    by scribe on Tue May 20, 2008 at 08:16:16 AM EST
    It exists to cover up negligence, stupidity, venality, incompetence and vindictiveness of all stripes - not just medical.

    Feres is a creature of the Supreme Court's interpretation of the Federal Tort Claims Act.  As such, it is a statutory interpretation opinion, not a constitutional one.  It can be changed as easily as any other statute.

    And, if Feres is repealed tomorrow, the world will not end.  

    You have to trust me on this, if only because 15 years ago three friends of mine were the trial lawyers who tried to a civilian jury the only case (I've ever heard of) which successfully got around Feres for a service member (a member of the National Guard) injured because of his superior's negligence.  And, it wasn't even a medical malpractice case.  I won't go into detail (it's a very long story - it took 15 years of litigation from accident to verdict), but the case was tried, the negligence and damages proven, the judgment entered, and paid in full by the State government.

    Would (none / 0) (#10)
    by Claw on Tue May 20, 2008 at 08:57:45 AM EST
    You mind citing the case?  I'd like to read it.  I've NEVER heard of anyone getting around Feres.  Granted, the only time I get near torts is when it comes to securing compensation for the wrongly convicted.  It's getting easier, but even that used to be a huge struggle.  The government's quite tight fisted when it comes to (sort of)righting wrongs via financial compensation.

    Sure. (none / 0) (#11)
    by scribe on Tue May 20, 2008 at 10:04:35 AM EST
    Phillips v. State, 98 N.J. 235, 486 A.2d 318 (1985);  Phillips v. Curiale, 128 N.J. 608, 608 A.2d 895 (1992), and especially 98 N.J. at 241 and n.1.

    In the 128 case, the opinion begins:
    In Phillips v. State, 98 N.J. 235, 486 A.2d 318 (1985)(Phillips I), we held that a member of the New Jersey National Guard injured in the line of duty could sue fellow guard members for those injuries if attributable to the fellow guard members' negligence, unless the defendants were complying with a lawful order.  Id. at 250, 486 A.2d 318.

    You note:

    I've NEVER heard of anyone getting around Feres.

    There's a good reason for that - the government and press don't want people to know that, on the one occasion when someone did and received a verdict in their favor, the world did not end.  So, the story gets ignored and buried.  

    FWIW, when one goes back and looks at the citations, particularly to law review articles, in the opinions, one cannot help but be struck by the fact that commentators have been predicting the demise of Feres for a very long time.


    Wow! (none / 0) (#8)
    by creeper on Tue May 20, 2008 at 08:24:40 AM EST
    This goes back to 1950?  Somehow I thought we might have been more concerned with our soldiers back then, what with having fought a real war and all.

    But what can you expect from a government that won't even hold Blackwater to account for killing innocent civilians?  

    Feres Doctrine (none / 0) (#12)
    by EdFremer on Tue Jan 20, 2009 at 12:50:37 PM EST
    My son Michael Fremer was killed at Fort Polk, La on 2/13/08 because of Army Negligence. The Army can not be held accountable because of the Feres Doctrine. This law needs to be changed. Why is  the Army exempt from being held accountable for Negligence? Our young men and woman are risking their lives. This is how our country treats the soldiers and the families? The Feres Doctrine needs to be overturned!

    Edward Fremer

    As many of you know by now, the Feres Doctrine "protects" the US Government from being sued for things like medical malpractice.  The most recent unfortunate case being SGT Carmelo Rodriguez and going all the way back to the time when an airman complained of stomach pains after surgery - only to find out that a 7-inch surgical towel with "Property of US Air Force" written on it was found inside of him.  Be aware that Feres also protects the US military from legal malpractice.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did).  Fitzgerald's motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy.  This threat resulted in my losing over $50,000 of my personal funds.  

    When I asked the top lawyer (now Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald's previous boss and a very obvious friend to "investigate."  Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald's Oregon State Bar which is NOT PROTECTED under privacy laws.  Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar.

    It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor.  Just to add insult to my financial injury, Fitzgerald got promoted to Major.