The Carmelo Rodriguez Military Medical Accountability Act of 2009: an opportunity to overturn the Feres doctrine as it applies to military medical malpractice.

• Author: Wiltberger, Kenneth R.

INTRODUCTION

When Carmelo Rodriguez joined the United States Marine Corps in 1997, he underwent a routine physical where military medical staff concluded that he had melanoma present on his right buttock. Despite the diagnosis, the doctors took no action. On February 5, 2003, during a prescreening for foot surgery, a military doctor noted a strange looking birthmark on Rodriguez's right buttock, but he also took no action. In March of 2005, while Rodriguez was stationed in Iraq, he visited yet another military doctor after he became concerned about a sore or growth on the same buttock. The military doctor told Rodriguez merely to keep the area clean and to visit the doctor again upon Rodriguez's return to the United States, which would be more than five months later. On November 11, 2005, Rodriguez acted on this advice and, during a checkup, was directed to the dermatology unit to have the birthmark removed for cosmetic purposes. The prescribed surgery never occurred and, by April 2006, after several referrals for the surgery had been lost in the system, Rodriguez's birthmark was bleeding and expelling pus constantly. By the time Rodriguez succeeded in seeing an "appropriate doctor," he was told he had stage III malignant melanoma. After the diagnosis, Rodriguez underwent three surgeries and, though he received the appropriate radiation and chemotherapy treatments, the cancer had already spread throughout his body, making recovery impossible. The doctors informed Rodriguez that if it had been caught earlier, it would have made a big difference. When Carmelo Rodriguez died at the age of twenty-nine in 2007, he weighed less than eighty pounds and "left behind a loving family, including a 7-year-old son." (1)

If Sergeant Rodriguez were a civilian and had been treated in a civilian hospital, his family would have had standing to sue for medical malpractice. However, because Sergeant Rodriguez was an active member of the military at the time the alleged malpractice occurred, under the Federal Tort Claims Act (2) and the Supreme Court precedent set in Fetes v. United States (3) in 1950, his family was precluded from filing suit against the military to recover for his loss. The Court's decision in Fetes stated that the "Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." (4) The "incident to service" test, commonly referred to as the "Feres doctrine," has been much-discussed and long-criticized since its genesis sixty years ago, prompting numerous calls for it to be overruled by the Supreme Court. (5) However, despite decades of harsh criticism and questioning, the federal courts continue to abide by this decision rendered during the early years of the Cold War. (6) With this long, unbending history in the courts, it is unlikely that the Fetes doctrine as applied to military medical malpractice will be overturned any time soon without Congressional action.

Congressman Maurice Hinchey, a Democrat from New York, initiated such action after hearing the plight of Carmelo Rodriguez and his family. He reintroduced a bill to the 111th Congress on March 12, 2009, a bill he had first presented to the 110th Congress in 2008, (7) that would "allow members of the Armed Forces to sue the United States for damages for certain injuries caused by improper medical care." (8) The bill, commonly known as the Carmelo Rodriguez Military Medical Accountability Act of 2009 ("Rodriguez Act"), would amend of Title 28, Chapter 171, of the United States Code by adding Section 2681 to the end, providing in part:

(a) A claim may be brought against the United States under this chapter for damages relating to the personal injury or death of a member of the Armed Forces of the United States arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) that is provided by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the United States inside the United States.

(b)(1) The payment of any claim of a member of the Armed Forces under this section shall be reduced by the present value of other benefits received by the member or the estate, survivors, and beneficiaries of the member under title 10, title 37, or title 38 that are attributable to the physical injury or death from which the claim arose.

(2) A claim under this section shall not be reduced by the amount of any benefit received under Servicemembers Group Life Insurance under subchapter III of chapter 19 of title 38, including any benefit under--

(A) section 1980A of title 38 (commonly know [sic] as Traumatic Servicemembers' Group Life Insurance); and

(B) section 1967 of title 38 (commonly known as Family Service-members' Group Life Insurance).

(c) This section shall not apply to any claim arising out of the combatant activities of the Armed Forces during time of armed conflict. (9)

Congressman Hinchey's bill would provide Carmelo Rodriguez's family and other victims of military medical malpractice and their families an immediate opportunity to seek relief in the courts. Despite this fact, the members of the 110th Congress, like their counterparts at the Supreme Court, missed the chance to correct an outdated doctrine that "has expanded far beyond its original purpose." (10) No action was taken on the bill in the 110th Congress, and the session ended.

Although the Rodriguez Act failed in the last Congress, it nonetheless served as the most recent reminder to all three branches of the American government that it is time to overturn the Fetes doctrine, at least as it applies to military medical malpractice. With the Rodriguez Act as the starting point, this Note examines the establishment of the Fetes doctrine and the historical justifications for limiting medical malpractice actions by military personnel. This Note also critiques the doctrine and proposed alternatives to it. (11) Finally, this Note urges that the new Congress, with support from the Obama Administration, acknowledge that the use of the Feres doctrine to bar military medical malpractice claims is no longer supportable. Moreover, it must recognize such a necessary change will not come through the court system--despite decades of criticism and confusion--but rather must come through the legislative process with a Rodriguez-type act.

1. BACKGROUND

   1. The Federal Tort Claims Act and Brooks v. United States

      The Feres doctrine grew out of the common law doctrine of sovereign immunity, which bars suits against the government unless Congress consents to them. (12) The Federal Tort Claims Act ("FTCA") was passed by Congress in 1946 in response to the increased number of injurious incidents attributed to the federal government's involvement in the private sector. (13) Prior to the FTCA's passage, Congress dealt with the rising number of claims simply by introducing private bills of relief to the House Judiciary Committee. These bills would go through a complicated, lengthy, and often expensive legislative process until they were passed or defeated. (14) The FTCA relieved this process by allowing plaintiffs to sue the United States directly for personal injuries when the injuries were

      caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (15) Despite the seemingly broad waiver of the government's sovereign immunity for negligent conduct performed by government employees, Congress "specified several exceptions in which liability pursuant to the FTCA does not extend to the United States." (16) Furthermore, regarding liability involving military personnel, an exception in the FTCA specifically precludes "claim[s] arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." (17)

      Three years after the passage of the FTCA, the U.S. Supreme Court had its first opportunity to interpret its language as it applied to military plaintiffs, in Brooks v. United States. (18) In Brooks, an off-duty serviceman was fatally injured when a civilian defense employee driving an Army truck on an off-base public highway struck the serviceman's vehicle. (19) The Court held that an injured military service member could sue the federal government unless his or her injury was "incident to ... service." (20) Because the plaintiff was not engaged in military activities at the time of the accident, the Court found her claim to be well-founded. (21) However, despite the FTCA's specific preclusion of claims by military personnel involving combatant activities alone, the Brooks Court broadened the language of prohibition by including injuries "incident to service" and further confused the text by not defining the phrase. Thus began the Court's "confused and continuing struggle to justify the military's immunity from service members' FTCA claims for non-combat injuries." (22)

   2. Feres v. United States and the Rationales of the Eponymous Doctrine

      In 1950, the Supreme Court had an opportunity to clarify the "incident to service" language when it heard Fetes v. United States, (23) a consolidated case involving three claims of negligence--two related to medical malpractice brought by servicemen for injuries they had received from their military activities. (24) The Court held that all three cases were barred under the "incident to service" holding in Brooks. (25) The Court found that the common denominator among the three cases was that each claimant was on active duty when another service member committed a tort against them. (26) As a result, the...