Rule shielding military doctors from liability faces legal battle

Opponents of the 60-year-old doctrine want it overturned to allow servicemen and women to pursue negligence claims against the government.

By Alicia Gallegos — Posted May 23, 2011

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The U.S. Supreme Court will decide in June whether to hear a case challenging a decades-old doctrine preventing military members from suing the federal government for medical negligence.

If the Feres Doctrine is reversed, experts predict that the government will face hundreds of millions of dollars -- if not billions -- worth of medical liability claims.

The family of Air Force Staff Sgt. Dean Witt sued the government in 2008, claiming that his death was the result of carelessness by military health center staff. Witt was admitted to the David Grant Medical Center at Travis Air Force Base in California for a routine appendectomy in 2003, according to court records. The suit alleges that after the surgery, he was left in the postoperative care of student nurses who failed to re-establish his airway after a laryngospasm. Hospital staff also allegedly used pediatric equipment on Witt when adult equipment was available and placed an endotracheal tube down the wrong part of his throat, the lawsuit alleges. Witt had serious brain damage from hypoxia and died in 2004 after being taken off life support.

In 2009, a trial court dismissed the family's lawsuit, ruling the court was bound by the Feres Doctrine.

The doctrine stems from the Federal Tort Claims Act of 1946, which allowed claims against the government for certain negligent acts but prevented lawsuits by military members for combat-related injuries. A 1950 Supreme Court decision in the case of Feres v. United States expanded the exclusion to bar lawsuits over any injuries "incident to military service." Witt's case falls under that definition because he was an active duty serviceman receiving care through the military health system.

Opponents of the Feres Doctrine say that interpretation has caused untold harm for military members and their families, and that the original tort claims act never was meant to be applied so broadly.

As part of its dismissal of the Witt case, the lower court was critical of the Feres Doctrine and called for the Supreme Court to revisit its validity.

"We join the many panels of this court that have criticized the inequitable extension of this doctrine to a range of situations that seem far removed from the doctrine's original purposes," the court said. The judges added, "Now is the time to revisit the Feres Doctrine. Otherwise, Feres will once again have led to a result that can only be characterized as unfair and irrational."

An appellate court affirmed the case's dismissal. The family appealed to the U.S. Supreme Court.

In early May, the high court selected the Witt case, along with two other cases that call for the overturning of Feres, to discuss during a June 16 judicial conference. The court is considering taking up the cases but has not said whether it will hear arguments.

"I think the time has come for [the doctrine] to be overturned," said Jamal Alsaffar, attorney for the Witt family. "We're asking people who give up their lives for this country to give up the basic rights we're asking them to defend."

A spokesman for the Dept. of Justice declined to comment on the case. A spokeswoman for the U.S. attorney for the Eastern District of California, where the case originally was filed, also declined to comment. The officials also would not comment on the Feres Doctrine.

Decades of controversy

The Witt case is one of numerous legal and legislative attempts to overturn the Feres Doctrine during the last 60 years.

The Supreme Court largely has avoided the doctrine debate, despite widespread criticism from lower courts and others, said Jonathan Turley, a professor of public interest law at George Washington University who has written legal articles on the Feres Doctrine.

"The Supreme Court has never had the courage to admit to this horrific error," he said.

Turley noted the strong dissent of Justice Antonin Scalia in a 1987 case in which the court reaffirmed a military hospital's protections under the doctrine in a 5-4 ruling. Scalia called the doctrine "wrongly decided."

Legislative efforts, including a 2009 bill introduced in the House, also have failed to reverse the doctrine. Some lawmakers have said overturning the rule would open the military to myriad lawsuits and benefit trial attorneys more than military families.

Turley said this budgetary concern has kept Congress from defeating the doctrine. Not only would reversing the rule lead to a large number of liability claims against the government, he said, it also would force the military to make changes to what he called its substandard health care system.

"Currently military personnel make cheap negligence victims," he said. "It's very clear -- you would never see these practices tolerated in the private medical realm."

However, the argument that military health care is of insufficient quality is unfounded, argued George Anderson, MD, MPH, a retired major general in the U.S. Air Force and executive director of the Assn. of Military Surgeons of the United States. AMSUS is a specialty society seated in the American Medical Association House of Delegates.

"We're doing better than ever," he said. "There's been huge advancements in military medicine, and that care has improved along with the care of [private] citizens in the U.S. I challenge anyone who wishes to create the impression that there is substandard care."

Dr. Anderson practiced under the Feres Doctrine during his 30 years as an active duty member. The doctrine is about more than medicine, he added. The rule prevents military members from suing their commanding officers for injuries they sustain on the battlefield.

"I see the wisdom of having this doctrine in place," he said. "I don't see the burning need to change it."

But if the Supreme Court reverses the doctrine, Alsaffar said, military members who are injured during combat still would be prevented from suing the government, and only noncombat injuries would be subject to legal recourse.

"The [tort claims] law doesn't exclude this claim -- that's why it's so hard to apply legislative action," he said. "There's nothing wrong with the way it's written. ... The Supreme Court created its own law."

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