Congress Should Not Fear to Change Feres
The Supreme Court established a rule in 1950 that became known as the Feres Doctrine:
The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.
Whatever merit the Feres Doctrine might have when applied to ordinary negligence claims, there is little reason to exempt military doctors from the same malpractice standards that permit civilian patients to recover compensation when a physician's careless acts or omissions cause harm or death.
Motivated by the death of Carmelo Rodriguez, whose skin cancer was misdiagnosed as a wart and left untreated, Rep. Maurice Hinchey will introduce a bill to permit those who serve to bring claims against the military for medical malpractice. (more …)
In Hinchey's view, the military had no incentive to make a diagnosis that would have kept Rodriguez from returning to combat.
“They were increasingly desperate to keep people – particularly people like Carmelo Rodriguez, who was a clear leader – they were forced to overlook this, to just look away from it to just keep him there, use him as best they could,” Hinchey said.
Whether or not Hinchey is right, it's difficult to argue against compensating malpractice victims for injuries caused by the military's system of health care. As Hinchey says in his press release:
Joining the military should not mean that one has to give up his or her right to hold medical providers accountable. The Carmelo Rodriguez Military Medical Accountability Act of 2008 will finally bring accountability into the military medical system and afford our service members and their families the same rights that the rest of us have when it comes to medical malpractice.”
If Hinchey's bill is enacted, it probably won't solve another problem that his press release identifies:
“Carmelo's situation and this legislation speak directly to the fact that our military, including the military's health care system, is spread far too thin by the occupation of Iraq,” Hinchey said. “Our military is facing shortfalls of doctors, nurses, and other health care staff across the board.”
It is difficult to prove a claim of professional malpractice (particularly one that occurs in Iraq), and the military might find it less costly (or easier) to pay successful claims than to resolve the shortage of well-trained medical professionals.
It may also be difficult for Hinchey to overcome the military's entrenched resistance to accountability. Past attempts to carve a malpractice exception into the Feres Doctrine have been unsuccessful. Hinchey's bill, if enacted, would probably face a Bush veto: the president seems unafraid to show his disregard for the welfare of those who serve. The bill nonetheless deserves support.
