30
Oct
08

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.

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