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Bill Would Allow Military Personnel to Sue for Medical Malpractice

By Beth Janicek

Legislation that would enable military service members to sue the government for medical malpractice is moving closer to becoming law. The House Judiciary Subcommittee approved Carmelo Rodriguez Military Medical Accountability Act. The legal precedence barring negligence lawsuits for military service members goes back to a 1950 Supreme Court ruling known as the Feres Doctrine.

The Feres ruling came from the Federal Tort Claims Act of 1946, which waived the common law doctrine of sovereign immunity in certain circumstances to allow lawsuits against the government for negligent acts. The law was initially interpreted to forbid lawsuits by military personnel only for combat-related injuries. The Feres decision extended the law to include any lawsuits for injuries 'incident to military service.'

Over the years cases applying the Feres Doctrine have include incidents such as leaving foreign objects inside patients, misdiagnosing, failure to notify patients about potentially deadly health problems, and failure to treat patients with easily treatable illnesses.

The Feres Doctrine has received criticism all across the board. Attempts to revoke the doctrine have surfaced periodically in Congress for over 20 years, but all have failed. In 1987, a 5-4 Supreme Court decision reaffirmed the Doctrine. The decision drew dissents from Justices John Paul Stevens and Antonin Scalia.

Scalia wrote that the Feres Doctrine 'was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.'

The latest attempt to amend the Feres Doctrine is H.R. 1478, the 'Carmelo Rodriguez Military Medical Accountability Act of 2009', introduced by U.S. Representative Maurice Hinchey (D-N.Y). The Act would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice but would contain an exception for combat-related injuries. It also requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury.

U.S. Rep. Hinchey said, 'I think military personnel should be treated in normal ways. Their medical issues should be dealt with responsively and attentively, the way we anticipate and expect the medical problems of ordinary citizens should be dealt with. We see far too much negligence in military medical care.'

Jonathan Turley, a law professor at George Washington University, has been a leading critic of the Feres Doctrine for years.

He said, 'We see cases in the military involving conduct that would be viewed as perfectly medieval in the civilian world. Decades ago civilian doctors were sued over the practice of leaving sponges in patients. It used to be very common.'

Now, he says, it is rare to see that type of malpractice in civilian medicine, due to the fear of lawsuits. But since there is no fear of a lawsuit in military medicine, it keeps occurring.

Turley said, 'I consider the Feres Doctrine to be one of the most grotesque rules created in the history of this republic. It has done untold damage to thousands of military personnel and their families.'

Let's hope for the sake of our military that the Carmelo Rodriguez Military Accountability Act of 2009 has a better outcome than other bills written to overturn the Feres Doctrine. Rep. Hinchey admits that this bill is going to face a tough fight, but as far as he is concerned it is simply a matter of fairness.

Originally posted at InjuryBoard by Beth Janicek

Full post as published by San Antonio Personal Injury Lawyer on May 20, 2009 (boomark / email).