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.

German came back later that night, actually early the next morning, "now with stroke-like symptons," according to her complaint. She was then transferred to Mayo Clinic Jacksonville for what the complaint calls "neurosurgical management of her subarachnoid hemorrhage." She had had a brain hemorrhage. She died in December 2010, nine months after she and her husband sued the hospital (and thus the Navy, and thus the United States), arguing that the military medical staff, doctors and nurses, had failed to properly treat her.

After denying the material allegations of the Germans' complaint, Justice Department lawyers promptly moved to dismiss the case. You don't need to see any evidence of the Germans' claims, the U.S. told the judge, because under the Tort Claims Act, the Feres doctrine, and Florida law, Jimmy German cannot continue with those claims. To rule otherwise, the feds warned the judge, would lead to this:

Thus, permitting a service member to maintain a wrongful death action arising from injuries sustained by a dependent due to medical negligence, would require military medical personnel to provide testimony as to the decisions and actions of fellow military medical personnel. Therefore, if this suit is permitted, this court would be required to second-guess or call into question the medical choices or decisions of the military medical personnel who provided care to Mrs. German.

In other words, a standard malpractice case. In court filings, federal lawyers argue that Feres bars Jimmy German's lawsuit because he was on active duty when his wife became ill and, notably, also, because Asenath German herself, on inactive status since 2005, was nonetheless engaged in activity "incident to service" when she sought medical treatment. It was Jimmy German's military status that counted, the feds argue, because he is the plaintiff. He is the remaining plaintiff, of course, because his wife is now dead.

This is a whopper of a theory and it immediately raised the hackles of attorneys who practice in this field. Now, all of sudden, family members of military personnel can't sue the U.S. for negligence because their loved ones are on active duty? If this really is the law, the government's immunity zone under the Tort Claims Act would be expanded by an order of magnitude just when so many service members are returning home from Iraq. And it would do so without any word from Congress but rather by judicial fiat at the request of the executive.

The Case of Elijah Price

Fortunately, The Military Times is on the case. Here's some context about the Feres doctrine, and how the feds have handled it recently, from the Times' January 30, 2012 story, reported by Andrew Tilghman, which as of my writing had not yet been posted to the Web.

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.

And here is the quote that Tilghman got, for his story about the German family, from Charles Miller, a Justice Department spokesman:

"The Feres bar is unique in that entitlement to the defense is determined by the status of the plaintiff rather than the status of the defendant. 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."

But it is not just Jimmy German -- on active duty, remember -- who is getting this treatment from the country that he still serves (and that his wife served before her death). Sean Cronin, a Florida attorney who represents German, also represents the family of Elijah Price in another medical malpractice case involving the naval hospital in Jacksonville. The newly born son of active duty military mom Jacqulin, and active duty military dad Prather, little Elijah lived only about an hour or so after his birth in 2010. 

His parents say that the naval medical staff was negligent. The feds say in response that Elijah's birth was "incident" to his parents' military service, thus subject to Feres immunity, and that the case must be dismissed long before trial. The Prices allege that hospital staff was aware that Jacqulin had a history of gestational diabetes during the pregnancy, that Elijah was "large for gestational age," and that  Jacqulin should have been allowed to have her baby delivered by cesarean section. Should a trial judge decide that? Or a 1950 court case?

Both the German and Price cases are before U.S. District Judge  Marcia Morales Howard, a 2007 appointee of President George W. Bush. Judge Howard is expected to rule soon on the feds' dismissal request in the German case -- and is likely to rule the same way, whichever way, when the Price case is ready. With a new standard at stake, with so much government money on the line, it's hard to imagine these cases not coming to the 11th U.S. Circuit Court of Appeals and then perhaps on to the Supreme Court, where Justice Scalia waits.

Postscript

If it is penny-pinching that is pushing the Justice Department to pitch this radical new theory of Feres, a theory that could gut the Tort Claims Act in military cases, then the president's tribunes should say so, loud and proud. And if Congress wants to pretend that this shoddy treatment of military families is an "Administration thing," perhaps reasonable people will remind the federal lawmakers that they hold the power of the purse and the primary power to amend the language of the Tort Claims Act. Where's Jon Stewart when you need him? 

This could be a powerful political issue in the 2012 campaign. The Republicans could claim that it shows that the Obama Administration is hostile to the families of service members. The Democrats could remind voters that it's the Republicans in Congress who have failed to fix the Tort Claims Act. And, barring some unforeseen breakthrough, all sides will ultimately vent their frustration toward the federal judiciary, which always has to  pick up the pieces when it comes to ambiguous legislation and cowardly politicians. 

In any event, remember all this the next time you are hanging out with a politician, judge, or a member of the Joint Chiefs of Staff. When the topic turns, as it inevitably will, to how proud they are to help America's military service families, tell them to talk less and do more. They've held in their hands for decades now the power to do right by service members and their families by fixing Feres. And now they must finally make a choice: Do they value these military families more than they detest allowing medical malpractice cases to get to trial?

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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