Quietly, U.S. Moves to Block Lawsuits by Military Families

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Why is the Justice Department trying to make it more difficult for service members and their families to sue the government for medical malpractice?

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Politicians and bureaucrats of all persuasions typically trip over themselves when it comes to praising the values and virtues, the courage and the sacrifice, of America's military families. East Coast. West Coast. Red State. Blue State. Democrats. Republicans. It doesn't matter. Everyone wants to stand up in public and say that brave and stoic military families should get the best that America can offer (cue the applause). Take the First Lady herself, Michelle Obama, who has worked consistently with and for these families since 2009. 

Commemorating the 10th anniversary of the terror attacks on America, Mrs. Obama wrote in USA Today:

As we reaffirm our commitment to hold dear the heroism, strength and compassion we saw on Sept. 11, let's also pledge to keep our military families in our hearts long after this anniversary has passed. These men, women and children have served valiantly in the decade since that fateful day. Now it's up to us to serve them as well.

Amen. But while public officials are out waving the flag toward these families, federal lawyers in court are now quietly trying to expand the U.S. government's legal immunity from exposure to medical malpractice claims brought by those very same military folks. Now, the feds want the courts to recognize a bold application of an old doctrine -- an already heavily criticized old doctrine -- that would bar many plaintiffs, whose loved ones serve their country, from exercising the right merely to be able to present the substance of their claims at trial. 

Worse, Congress has consistently refused over the past 60 years to ensure that courthouse doors remain open to military personnel and their families. In one recent iteration of this battle, in 2009, it was reported that Congressional Republicans refused to go along because doing so it would allow more malpractice cases to get to trial, a goal many of those very same Republicans find contrary to their so-called "tort reform" agenda. It's a legal issue, it's a political issue, and its a moral one: How much do we really care about these families? 

The Background

It starts with a 1946 law, the Federal Tort Claims Act (FTCA), and a 1950 Supreme Court case, Feres v. United States. The "Feres Doctrine" stands for the general proposition that the U.S. cannot be sued for money damages under the FTCA for any injuries to or death of military personnel while on active duty. Right now, an on-duty soldier cannot sue his medical doctors for malpractice. In essence, this means that military personnel are precluded from exercising certain rights that the rest of us possess -- the legal right to sue America for negligence.

In 1987, the Feres doctrine came back to the Supreme Court in a case styled United States v. Johnson. It is worth stopping here for a moment because Johnson was a bitterly-contested 5-4 decision from a High Court of which only Justice Antonin Scalia remains today. And, in  Johnson, Justice Scalia wrote a stinging dissent that advocates for military families still like to cite today. "Feres was wrongly decided," he wrote back in 1987, and "heartily deserves the widespread, nearly universal criticism it has received." 

Justice Scalia's problem with Feres, as applied in Johnson, stemmed from the majority's interpretation of the Tort Claims Act. The statute, Scalia argued, specifically and only very narrowly exempted the government from liability for "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war" (emphasis in original). The Supreme Court had no business in Feres, or in Johnson, extending this governmental immunity under the Tort Claims Act.

Of the victim in the case, Justice Scalia wrote:

Had Lieutenant Commander Johnson been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss. But because Johnson devoted his life to serving in his country's Armed Forces, the Court today limits his family to a fraction of the recovery they might otherwise have received. If our imposition of that sacrifice bore the legitimacy of having been prescribed by the people's elected representatives, it would (insofar as we are permitted to inquire into such things) be just. But it has not been, and it is not. I respectfully dissent.

Fifteen years after Justice Scalia wrote those words, the topic of the inherent unfairness of the Feres doctrine, as applied to the Tort Claims Act, was the subject of a long Senate Judiciary Committee hearing. At the time, in 2002, with American troops fighting in Afghanistan but not yet in Iraq, Sen. Arlen Specter, the longtime Republican from Pennsylvania, echoed the justice's old concerns. Sen. Specter led off the hearing with these words:

I have introduced legislation to amend the so-called Feres doctrine because it seems to me that the doctrine has produced anomalous results which reflect neither the will of the Congress nor common sense. There have been many examples where a soldier who is the victim of medical malpractice at an Army hospital cannot sue the Government for compensation, but a civilian who suffers the same treatment on an allegation of malpractice would be entitled to recover against the Government. Similarly, if a soldier driving home from work on an Army post is hit by a negligently driven Army truck, that soldier is barred from suing the Government, but a civilian in identical circumstances would not be so barred.

Six years later, in 2008, the CBS Evening News chronicled the problem. There were more hearings. Of course, nothing ever happened. Nothing ever happens to Feres and no one ever meaningfully amends the Tort Claims Act. No politician dares to introduce federal legislation designed to extend the government's protection under the Act -- to formally and legislatively increase the scope of the Feres doctrine. Such a measure would be the subject of an opposition attack ad in a matter of hours. So, instead, as you'll see below, the expansion of the doctrine is being pushed upon the judiciary by the executive branch.

Meanwhile, on the other hand, not enough politicians are willing to buck the military lobby, and the "tort reform" lobby, to amend the Tort Claims Act to specifically narrow the military exception to give military personnel and their families a chance to go to trial. Such legislation would be widely popular, especially if it were framed this way: "We ask these service members and their families to sacrifice their lives for us, literally and figuratively, the least we can do is give them the same day in court as those they have been asked to protect." 


The Case of Asenath German

All of which brings us, first, to the malpractice case of Asenath and Jimmy German, which is now pending in Florida. Two years ago, the Germans sued the United States for negligence. As the wife of an active Navy serviceman, and as a former Navy servicewoman herself, Asenath German came to the Naval Hospital in Jacksonville on October 3, 2008 complaining, not for the first time, of a severe headache. Even though she vomited and experienced other symptoms, she was discharged three hours later after being diagnosed with a migraine.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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