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Michael Phelan
Michael Phelan
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Repeal the Feres Doctrine

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Cindy Wilson was a 37 year old technical sergeant stationed at Langley Air Force Base. On February 20, 2007, she was to give birth to her first child. Sergeant Wilson was excited that her parents were making the trip from Georgia to experience the birth of their grandson. On that same day, Dr. Michael Carozza, the lead obstetrician on staff at Langley, had not even been issued his Virginia medical license. He was 31 years of age and had just completed his residency a few months before.

Just before midnight on Feb. 20, 2007, Sergeant Wilson gave birth by cesarean section to a healthy boy. But she never got to hold her baby. According to her medical records, a uterine artery was cut during the delivery, causing massive internal bleeding. The estimated blood loss was equivalent to the total blood volume of an average adult. Then, during frantic efforts to repair the damage, two surgical sponges were left in Wilson’s abdomen. Wilson’s parents went to her Smithfield home to get some sleep. Around 4 a.m., her husband called. Wilson was going back to the operating room for emergency surgery caused by the sponges left in her body. When her parents got back to the hospital, “her room looked like a tornado had hit it,” Connie Wilson said. A piece of medical equipment was overturned and a needle lay on the floor.

Twelve hours after giving birth, she was dead. Dr. Carozza’s Virginia medical license was issued on Feb. 21, 2007 – the day Cindy Wilson died. Carozza is still on the obstetrics staff at Langley.

In the following months, Sergeant Wilson’s devastated parents got a second shock when they learned that they had no recourse – even for what seemed to them an egregious case of medical malpractice – because of a legal precedent known as the Feres Doctrine , which bars military members from recovery for personal injury or death "incurred incident to miltary service or duty." "Incident to service" means any and all activities, not just work-related military duties, to which the service member is exposed due to her military service- including use of base recreational facilities and receipt of health care services.

A vocal group of military families, lawyers and members of Congress say the Feres Doctrine renders service members second-class citizens and should be overturned. The doctrine goes back nearly 60 years to a 1950 Supreme Court ruling on a series of cases that became known as the Feres Doctrine. One of the Feres cases involved a soldier who was barred from suing after an Army doctor left a 30-by-18-inch towel marked “Medical Department U.S. Army” inside him. There have been similar cases through the decades in which foreign objects – usually sponges – were left inside patients who, because they were military personnel, were barred from suing. Such cases illustrate how the Feres Doctrine has contributed to substandard care in the military medical system, according to Jonathan Turley, a law professor at George Washington University who for years has been a leading critic of the doctrine.

“We see cases in the military involving conduct that would be viewed as perfectly medieval in the civilian world,” Turley said. “Decades ago, civilian doctors were sued over the practice of leaving sponges in patients. It used to be very common.” After a few lawsuits, the medical profession came up with a simple solution: Count the sponges before and after the procedure. Now it’s rare to see that type of malpractice in civilian medicine, Turley said. But because there is no fear of lawsuits , it keeps occurring in military medicine. “I consider the Feres Doctrine to be one of the most grotesque rules created in the history of this republic,” Turley said. “It has done untold damage to thousands of military personnel and their families.”

The Feres ruling grew out of the Federal Tort Claims Act of 1946, which waived the ancient common-law doctrine of sovereign immunity in certain circumstances to allow lawsuits against the government for negligent acts. Initially that law was interpreted to forbid lawsuits by military personnel only for combat-related injuries. The Feres decision widened that exclusion to bar any lawsuits over injuries “incident to military service.”

The ruling has been criticized by judges all across the ideological spectrum. A 5-4 Supreme Court decision reaffirming it in 1987 drew dissents from Justices John Paul Stevens on the left and Antonin Scalia on the right. Scalia wrote that Feres “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” Although the doctrine is not statutory (it arose from case law), it probably will require legislation to address its draconian effects. Attempts to repeal the doctrine have surfaced periodically in Congress for more than 20 years, but all have failed. The latest attempt to repeal Feres is the Carmelo Rodriguez Military Medical Accountability Act of 2009, introduced by U.S. Rep. Maurice Hinchey, D-N.Y. It’s named for a Marine constituent of Hinchey’s.

The measure would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice. It contains an exception for combat-related injuries and requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury. Hinchey said the issue is one of simple fairness. “I think military personnel should be treated in normal ways,” he said. “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.”

In my opinion, this bill does not go far enough. I once represented a military reservist who was killed in a car accident by a drunk driver. Unfortunately, the service man was killed "incident to military service or duty" as he was reporting to base for training. Military personnel should have the right to sue (just like we all do under the Constitution) for all non-combat-related injuries or death.

2 Comments

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  1. Ed Fremer says:
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    My son Michael Fremer was killed at Fort Polk, La on 2/13/08 because of Army Negligence at the conclusion of a training exercise. 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 Military uses the Feres Doctrine to cover up and protect themselves against Medical Malpractice in the Cases involving Dean Witt and Carmel Rodriguez. It also protects the Military in cases involving Marines being exposed to Toxic chemicals on US Bases on US soil. The Military is exempt from being held accountable on all of these matters. The Feres Doctrine needs to be overturned so the Military is held accountable.

    Thanks,
    Ed Fremer

  2. Mike Phelan says:
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    Ed:

    I’m so sorry about your son. I think your choice of the word “accountable” is important. The framers of the Constitution felt that the right to trial by jury was such an important right that they embodied it in the Seventh Amendment. I believe they knew that private causes of action were often better than government action for holding accountable negligent wrong doers. As the Virginian Pilot article to which I linked points out, civil lawsuits holding negligent doctors accountable for leaving foreign objects in patients’ bodies have all but eliminated this once common mistake. The only place in the U.S. where this mistake is still relatively common is in the military, where there is no accountability.