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U.S. seeks new limits on troops' legal rights

Jan. 31, 2012 - 10:01AM   |   Last Updated: Jan. 31, 2012 - 10:01AM  |  
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The Feres doctrine

The legal precedent known as the Feres Doctrine is based on three cases that were rolled into one 1950 Supreme Court ruling.
The main case involved Lt. Rudolph Feres, an Army officer who died in a barracks fire at Pine Camp, N.Y. It later was determined that the building had a faulty heating plant and no fire watch when the blaze began.
The other two cases involved active-duty members who were victims of medical negligence. One died; the second had undergone abdominal surgery by Army doctors, who left an 18-by-30-inch towel inside him that was not discovered until eight months later, when the soldier experienced severe stomach pain and had to have surgery again.
Feres has been challenged many times over the past six decades in the past 55 years under a variety of circumstances. Members of Congress have, from time to time, proposed legislation to amend the Feres Doctrine, always unsuccessfully.
A number of challenges also have made it to the Supreme Court, which has consistently refused to alter the 1950 ruling.
The most recent such instance came last June, when the high court declined without comment to hear a California case involving 25-year-old Air Force Staff Sgt. Dean Patrick Witt, who died in 2004 after a military nurse put a tube down the wrong part of his throat during a routine appendectomy.
The only victory by a service member over Feres came in 2002, when former Navy Lt. Mary Louise "Missy" Cummings sued the Navy for improperly allowing her pilot training and medical records to be leaked to an author who later published the material.
Her claim was upheld by the U.S. Court of Appeals for the District of Columbia, which ruled that Feres does not apply in cases of Privacy Act violations. The Navy chose not to push the case to the Supreme Court creating a narrow exception to the Feres Doctrine on privacy issues.

For decades, federal law has barred troops from suing the government for any injuries they suffer as a result of malpractice in military medical facilities, no matter how negligent or egregious the error.

Now government lawyers in Florida are seeking to expand that restriction to include the spouses and children of service members.

The case stems from a lawsuit filed by Jimmy German, a Navy aviation structural mechanic first class, who says his wife went to Naval Hospital Jacksonville, Fla., in October 2008 complaining of a headache and the hospital failed to diagnose her symptoms as cerebral hemorrhaging.

She suffered a catastrophic stroke and died in December 2010, according to the lawsuit.

The U.S. attorney for Florida's Middle District is arguing that the suit should be dismissed regardless of whether Navy doctors made medical errors because troops should not be allowed to sue for negligent care provided to their dependents.

That is a new and significantly expanded interpretation of a 1950 Supreme Court ruling called the Feres Doctrine, which bars troops from suing the government in most situations, legal experts say.

The law was originally intended to shield the government from liability related to military service for example, a commander ordering troops to maneuver in dangerous combat situations.

But the U.S. legal system also has historically extended that restriction to stateside medical care, barring troops from suing if they are injured by a negligent doctor, even in garrison settings far removed from any battlefield.

However, the government has settled many cases over the years based on injuries to military family members. In just the past few years, the government has annually settled several dozen military medical malpractice claims and lawsuits involving family members a number of them filed by service members, records show.

As recently as last August, for example, the federal government agreed to pay more than $2 million to settle a lawsuit filed by Army Staff Sgt. Adam Cloer, who said the medical staff at Blanchfield Army Community Hospital near Fort Campbell, Ky., failed to screen his wife for rectal cancer despite persistent symptoms. She died in May 2010.

Legal experts say the argument by the U.S. attorney in Florida would end lawsuits like that one.

"I am astonished that they would make this argument," said Jonathan Turley, a law professor at George Washington University Law School who has written extensively about the Feres Doctrine and military medical malpractice. "This is a very clear effort to establish the rule that children and spouses are equally barred from tort recovery from negligence."

German is fighting the government's motion to dismiss the case, arguing that his status as a service member is irrelevant because the injury was allegedly sustained by his civilian wife.

A federal judge in Florida will rule on the government's motion to dismiss the case before March.

Charles Miller, a Justice Department spokesman in Washington, D.C., said the Florida case reflects the government's current view of the Feres Doctrine.

"The Feres bar is unique in that entitlement to the defense is determined by the status of the plaintiff rather than the status or function of the defendant," he said. "As a general rule, the touchstone for the defense is whether the plaintiff is a member of the armed services and whether the injuries arose out of or were incident to that service."

Miller did not respond to further questions about whether this legal interpretation reflected a formal change that would affect cases nationwide.

"We offer our deepest sympathy to Petty Officer Jimmy German and his family for any suffering they may be experiencing," said Tammy Begasse a spokeswoman for Naval Hospital Jacksonville. Patient confidentiality laws prevented her from commenting further, she added.

Critics say the Feres Doctrine harms the quality of medical care at military facilities because it shields them from lawsuits that create transparency and hold them accountable for mistakes.

Sean Cronin, a former Navy officer and the Florida attorney representing German, suggested the new argument seeking to bar lawsuits linked to dependents may be an effort to reduce government spending.

"That is a complete new assertion," Cronin said in an interview. "I think it's an effort to save money on otherwise meritorious claims."

Eugene Fidell, who teaches military law at Yale University, said the original Feres doctrine was never intended to protect military hospitals providing care to civilians.

"If the government can plausibly take a position like this, something is basically wrong," Fidell said in an interview. "The outcome the government is arguing for is intolerable. If the government wins this motion, Congress has to step in."

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