Hinchey’s offers legislation to reform Feres Doctrine

Although it has to date received scant media coverage, a legislative battle may be shaping up and attorneys, especially those who represent either veterans or active members of the armed services, ought to be on the lookout. Back in May of this year, CBS News reported that Congressman Maurice Hinchey (D-NY) had introduced a bill named the Carmelo Rodriguez Military Medical Malpractice and Injustice Act in order to address the Feres Doctrine’s judicial bar on “medical malpractice,”

First, some background on the Feres Doctrine is warranted for those who may be unfamiliar with the term. In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court ruled that the federal government was not liable under the Federal Tort Claims Act, 28 U.S.C.§ 1346(b) and 28 U.S.C. § 2671–2680 for anyinjuries to members of the Armed Forces sustained while they are on active duty, and/or resulting from the negligence of others in the Armed Forces that are incident to service.

Since the Supreme Court decision over half a century ago, the Feres Doctrine has complicated efforts to ensure our brave soldiers receive adequate redress for injuries they suffer when the medical care they receive falls below accepted standards of care. Why? The doctrine effectively bars service members from successfully collecting damages for personal injuries, when the care they receive is outside accepted standards of medical care.  This holds true whether the injury suffered was received as a result of non combat or military duties.  Imagine a service member who seeks out care at a military medical hospital for a growth on his skin that is ignored.  If the tests are not run and the diagnosis is not made and later it is discovered the service member had a cancer and it went untreated that service member is barred whether or not they were suffered in the performance of their duties. To make matters worse, it also bars families of service members from filing wrongful death actions in federal court in the event that their loved one is killed or injured as a result of that misdiagnoses. 

The bar does not, however, extend to killed or injured family members, so a spouse or child may still sue the United States for tort claims (for example, in a case of medical malpractice), nor does it bar service members from filing either in loco parentis on their child’s behalf or filing for wrongful death or loss of consortium as a companion claim to a spouse or child’s suit.

Nevertheless, the fact that so many of our brave men and women are being injured or killed while serving on the front lines of the War on Terror in Iraq, Afghanistan and other dangerous conflict zones across the globe ought to provoke a public discussion as to whether the Feres Doctrine needs to be reformed for the 21st Century. Since these soldiers risk their life and limb in order to protect this country, shouldn’t they at the very least have standing to sue the government in the event they are injured or killed while serving due to negligent medical care? And wouldn’t allowing this bar to be lifted create an additional incentive for the government to improve care in the first place?

This brings us back to Representative Hinchey. As a result of a misdiagnosis by a military doctor treating him while he was deployed in Iraq, Marine Sgt. Carmelo Rodriguez did not receive adequate medical care for his melanoma, leading to his tragic death. Missing the signs that Rodriguez had melanoma, his doctor instead had diagnosed him with having warts.

And of course, since he was on active duty at the time he was   subjected to this negligent care, his family cannot seek redress for his wrongful death because of the Feres Doctrine. This prompted Congressman Hinchey’s office to release a press release  announcing his intention to introduce legislation to reform Feres.

Having Congress provide such legislative reform for Feres was a goal that already had the support of many in the legal community, including supported the Washington, DC Bar Association, but since Hinchey’s bill was introduced almost six months ago, it has fallen off the media’s radar. Right now, it is unclear what the status of the bill is today. This is most likely a result of Congress and the White House being enmeshed right now in crafting a legislative and regulatory response to the nation’s financial crisis, as well as being preoccupied with the November elections. It is safe to say that hearings on the bill will begin until the next session of Congress at the earliest.

This blog will be closely following any developments and will report when hearings will be held, as well as whether or not the bill ultimately passes and in what final form. In the interim, here is some suggested reading to give you further background on the issue:

•  The legal blog TalkLeft opines on the need to reform the Feres doctrine here.
• Here is the complete text of Hinchey’s bill.
• A series of posts by law professor and commentator Jonathan Turley from his blog here, here and here.

What is the quality of medical care for soldiers?

In the aftermath of al-Qaeda’s horrific attacks on New York City, Pennsylvania and Washington, DC on September 11th, George W. Bush announced to the world that his administration’s response would involve a long-term, preemptive* military response against terrorist networks across the globe which posed a threat to US interests, as well as any states that harbored terrorists. As this first iteration of the Bush Doctrine indicated, the prosecution of the War on Terror has for the past seven years relied heavily on the members of its armed forces, including the National Reserves and National Guard.

For those brave and women who have contributed – and in many cases, sacrificed – such a disproportionate amount for this war, the American public ought rightly ask how the administration, Congress and the federal courts have fulfilled its obligations to provide veterans as well as those currently active with the medical care they need.

Getting an answer to this question and addressing any flaws in policy or implementation obviously has profound implications for these citizens, and the attorneys who ultimately provide them.

There are two separate questions for us to ask. First, what is the scope of care that is offered and what determines who is eligible to receive care and under what circumstances?  Second, what is the adequacy, or quality of those services that are provided?

More posts will follow in the near future which will discuss this important topic more expansively, and in particular discuss recent developments in the legislative and regulatory environment, as well as important court decisions, that may change the way future care is ensured and provided. But for now, consider this an open thread for discussion.

As with all other posts on the blog, this discussion will not be moderated to exclude the expression of views or opinions that the editor disagrees with.  However, any offensive or completely unrelated/off-topic content will be deleted.

*A speech given by President Bush on June 1, 2002 contained statements that have been interpreted as extending the basis for a “preventative” military response to protect US interests from any terrorist attack that was not imminent but rather foreseeable.

Violations Reported at 94% of Nursing Homes

The New York Times reports that according to data just released by the Department of Health and Human Services in 2007, over 90% of nursing homes in the US were cited for violations of federal  health and safety standards. Further, in a report released by the federal agency’s inspector general found that for-profit nursing homes were in fact more likely to have problems compared to other types of facilities.

Some of the problems frequently cited include infected bedsores, medication mix-ups, poor nutrition, as well as abuse and neglect of patients. And adding insult to injury, the article notes that in some cases, nursing homes went so far as to billed Medicare and Medicaid for services that “were not provided, or were so wholly deficient that they amounted to no care at all.”

A spokesperson for the nursing home industry argues that the federal inspection program itself is in fact “broken” and that it does not reliably measure quality nor create positive incentives.

Report: Medicare Will No Longer Pay for “Preventable” Hospital Errors

The New York Times reports on a recently announced change in Medicare’s policy that is likely to have far-reaching implications for practice of medical malpractice law. The largest insurer in the US will no longer pay bills resulting from what it deems “preventable” medical errors made by hospital employees on patients under their care. By forcing the hospitals to internalize any additional costs they might incur due to negligence, it is reasoned that health care providers will have an even stronger incentive to prevent their patients from being injured as a result of bed sores, injuries from falls or urinary tract infections, for example.

According to the Times’ report, Medicare has created a list of ten conditions it argues are in fact “reasonably preventable.”

The new Medicare policy is still less stringent than the standard advocated by some health policy experts. As the article notes: “In 2002, the National Quality Forum, a standard-setting consortium for the health care industry, compiled a list of 27 largely preventable adverse events, a list that grew to 28 in 2006.”

An executive for the American Hospital Association points out toward the end of the article that it remains unclear which mistakes will be categorized by different insurers as being preventable and which ones would not.

And it is noted that similar policies are already in place:

Over the last year, four state Medicaid programs, including New York’s, have announced that they will not pay for as many as 28 “never events” (so called because they are never supposed to happen). So have some of the country’s largest commercial insurers, including WellPoint, Aetna, Cigna and Blue Cross Blue Shield plans in seven states.

It is argued that many commercial insurers will follow the lead of Medicare and Medicaid and change their criteria as well – leading to a multiplier effect. But while the change in policy makes may end up succeeding in forcing hospitals to be more vigilant in avoiding injuries that shouldn’t happen in the first place, according to the article the cost savings are projected to be relatively small compared with the overall amount of money spent annually for inpatient care.

A much more significant source of savings, according to health economists, would be achieved by  hospitals providing its patients with more preventative healthcare, chronic disease management and by cutting back on unnecessary procedures.

For more background and analysis, see this post from the Healthcare Blog last August.