Honoring Our Troops By Denying Them Basic Legal Protections

February 21, 2012 3:10 pm ET — David Lyle

America's military tradition provides that our service members will not leave a fallen comrade behind. Politicians are quick to invoke and associate themselves with this legacy of honorable sacrifice, and pledge that nothing is too good for our troops. In reality, though, in too many ways America's military men and women are celebrated when on the battlefield, and neglected on the homefront. The media is quick to chronicle their heroism, but slow to uncover the mistreatment they too often encounter at home, as exemplified by the notorious Walter Reed Army Medical Center scandal, which festered for years before the media and Army were finally galvanized to address the unacceptable conditions. Homeless veterans, the returned troops most in need of help, often receive little more than lip service from politicians.    

There is yet another way in which our government treats America's military personnel as second-class citizens and denies them vital protections that the rest of us enjoy. Thanks to a series of misguided Supreme Court decisions and Congress' failure to fix the problem, our nation routinely leaves behind our servicemembers in their time of greatest need. For unlike other Americans, our legal system often denies active duty U.S. servicemembers the right to meaningful compensation when they suffer injuries as a result of the wrongful acts of others.  

The "Feres doctrine," an obscure legal rule that the Supreme Court created more than 50 years ago prohibits servicemembers from bringing suits against the federal government arising from matters "incident" to their service. As Professor Jonathan Turley of the George Washington University School of Law has documented, no matter how egregious the wrongdoing — an Army surgeon leaving a 30-by-18-inch towel marked "Medical Department U.S. Army" in a soldier's abdomen — or attenuated from core military functions mdash; a civilian whitewater rafting outfitter sending off-duty sailors on a Navy-sponsored outing down an unsafe river — servicemembers lack the basic right to sue their employer for compensation from injury that other Americans enjoy. Instead they and their survivors are limited to modest veterans' death or disability benefits no matter how grievous the injury or monumental the wrongdoing that caused it.

Rather we leave them and their family members behind to pick up the pieces as best they can, without adequate compensation for themselves or accountability for the wrongdoer. This already unacceptable situation threatens to get much worse, as in the coming weeks a federal judge is expected to rule in a case that could greatly expand the scope of the Feres doctrine to include injuries suffered by family members of active duty personnel.

Americans are largely ignorant of these policies. With few exceptions, the media has left the story to specialty publications such as The Military Times and Professor Turley's blog. As a result, Congressional Republicans have been able to block efforts to fix the problem and restore fairness for military personnel. Similarly the government has faced little scrutiny for taking a position that could expand the rule's coverage and compound its injustice.

Background

The Feres doctrine arises not from the text of law passed by Congress, but rather in direct contradiction to clear statutory language. For much of American history, the federal government could not be sued, but in 1946 Congress passed the Federal Tort Claims Act, which provided that, with certain exceptions, the government can be sued for injuries it causes, including through negligent actions by government employees and contractors. Among the exceptions was a narrow prohibition against "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." The basis for such an exception is clear, as core military functions such as attacking an enemy position are inherently dangerous and should not be the basis for suits against the government.

Unfortunately for U.S. servicemembers, the Supreme Court began rewriting the Tort Claims Act soon after its passage. In 1950, in Feres v. United States, the Court started a decades-long process of departing from the plain language of the statute. Despite the fact that the law specifically included a narrow exemption for cases arising from "combatant activities [...] during time of war," the Court fashioned a separate general prohibition of suits against the government by servicemembers. Feres was a soldier who died in a fire caused by defective heater in a barracks at an Army base in New York during peacetime, but the Court misinterpreted the Act to apply the ban on suits arising from "combatant activities" to block his family from recovering damages for his death.

Professor Turley has made plain the greatest injustices of the Feres rule. It means that often rights are without meaningful remedies to enforce them.

While federal law prohibits sexual harassment and gives women the right to sue, they cannot sue if they wear a uniform.

In Illinois, eight women sued the Army for "harassment and retaliation, including rape, sodomy, unwelcome sexual advances and touching, requests for sexual favors, sexual innuendos, harassing phone calls, threats of physical harm, non-consensual sex and duress." A federal court dismissed the lawsuit because the Army's tolerance of this misconduct would still implicate "important questions regarding the management of military personnel."

A recent case demonstrates how Feres can deny servicemembers even their most basic rights. Kori Cioca alleges that she was raped by her superior officer in the Coast Guard. She joined with 27 other alleged rape and sexual assault victims in a federal lawsuit claiming that the Department of Defense violated the constitutional rights of servicemembers by failing to prevent rape and sexual assault and mishandling the cases of those who complained of such mistreatment. The lawsuit's filing attracted significant media attention, but there was significantly less coverage when a federal judge, relying on the Feres rule, dismissed the suit in December 2011. Although the plaintiffs have appealed, Feres likely will continue to be a major barrier to a full examination of their claims.

The impact of Feres is great, because although the statute bans only combat-related suits, the Feres rule is vastly broader:

This doctrine extends to a wide array of businesses maintained by the military — from movie theaters to bowling alleys to restaurants to gasoline stations. Many are profit-making enterprises operated by civilians under contract with the military, yet they are still immune from lawsuits by military personnel.

And the rule singles out active duty personnel, treating them as second-class citizens with fewer rights than their civilian counterparts:

Some cases make the second-class status of service members appallingly clear. There are examples in which an off-duty service member was with a civilian when both were injured by an act of gross military negligence; the civilian could claim damages but the service member could not.

According to Professor Turley, the Feres rule — minimal compensation for victims, no accountability for wrongdoers — has especially pernicious consequences in the medical malpractice context. Researchers have documented that preventable mistakes in the civilian health care system are responsible for tens of thousands of deaths each year, despite the sizable deterrent role played by medical malpractice suits. Professor Turley has argued that the problem is even worse in the military health care system as a result of Feres.

[M]ilitary personnel are not allowed to seek legal relief as other citizens can. The result is that they are victims of grotesque forms of negligence that have not been widely seen in the civilian world for more than a hundred years. In the civilian system, the threat of lawsuit serves a critical deterrence of negligence by the government, companies and others. A rational actor will avoid liability costs by taking measures to minimize accidents. [...]

The military medical system is a prime example of what happens when patients are stripped of their legal protections. The military has long had many talented and dedicated doctors and nurses. Nevertheless, it also has long been plagued by scandals involving everything from doctors without medical licenses to medical treatment that borders on the medieval. Consider a few examples from the military malpractice-free-zone:

  • Lt. Cmdr. Walter Hardin spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.
  • Sailor Dawn Lambert had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen. They remained there for months until resulting complications forced a second surgery to remove her other fallopian tube, leaving her infertile. She was given $66 monthly in disability pay.
  • Linda Branch lost her husband while he was serving in the Air Force after he was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu. He died of a bowel obstruction.
  • Navy Petty Officer Joe Cragnotti went to a military hospital with pneumonia, which is treatable with antibiotics. The doctor left it untreated, then Cragnotti suffered brain damage.
  • Air Force Staff Sgt. Dean Patrick Witt had appendicitis but was repeatedly misdiagnosed and sent home with some antibiotics. When he finally collapsed at home, he was rushed into surgery. He came out brain-dead. It's alleged that a series of malpractice led to his death, including the use of a pediatric rather than an adult device to open an airway when he had trouble breathing.

Awareness of the problems caused by Feres has led to Congressional hearings and occasional media reports over the decades, but Congress has failed to act to set aside the erroneous Supreme Court precedents and return the law to the state Congress intended when it passed the Tort Claims Act. In recent years, Rep. Maurice Hinchey has introduced and promoted a bill to fix Feres and give servicemembers the same rights as other Americans. Unfortunately, according to The Atlantic contributing editor Andrew Cohen, House Republicans have opposed the bill out of a hostility to medical malpractice suits growing out of their "tort reform" agenda and the cost of adequately compensating servicemembers for their injuries. The Congressional Budget Office has estimated that fixing Feres and treating servicemembers like other Americans would cost $135 million per year, about the same amount as Americans spent at the box office to see the movie The Hangover Part II in the first five days of its release.

From Bad to Worse:  The German Case (And Beyond)

Asenath German had a history of severe headaches. So, as the wife of Jimmy German, an active duty Navy aviation mechanic, when she suffered another in October 2008 she went to the Naval Hospital in Jacksonville, Florida. Although she vomited and exhibited other symptoms, she was sent home. By the next day, she was in a civilian hospital being treated for a brain hemorrhage. She died two years later, and her husband sued, alleging that she had received negligent care at the Naval Hospital.

The government lawyers defending the suit denied the allegations of improper care, but then went a step farther in an aggressive legal maneuver that, if successful, would greatly expand the scope of the Feres doctrine. They argued that even if the Navy doctors had provided negligent care to his wife, Jimmy German's suit was barred, because at the time of the incident he was on active duty, and that the Feres rule should be broadened to apply to the wives, children and other dependents of active duty servicemembers.

According to The Military Times, if courts adopt the rule urged by the government in the German case, it could end the government's practice of offering significant compensation in cases involving family members. If the government succeeds, it could eliminate one of the few sources of outside accountability in the military medical system, worsening the problems Professor Turley has identified. How far would such a rule go?

Another case involving the Jacksonville Naval Hospital gives an indication that the government's proposed new rule could sweep very far indeed. Elijah Price was the child of two active duty servicemembers. He died only an hour after being born, as a result, his parents allege, of negligent care at the Naval Hospital. The government argues in response to their suit that Elijah's birth was "incident" to his parent's military service and has asked that it be dismissed under Feres.  

The Department of Justice has not directly addressed whether its actions in the German and Price cases in Florida are part of a broader effort to expand the Feres rule to ban all suits against the government by family members. When asked about the cases, Department of Justice spokesman Charles Miller gave an ambiguous answer regarding whether the government is engaged in a deliberate attempt to cut off a broad range of suits involving family members:

"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."

Professor Turley, who has followed cases decided under Feres for over a decade, believes that the government is trying to sweep many new cases under the rule:

"I am astonished that they would make this argument," ... "This is a very clear effort to establish the rule that children and spouses are equally barred from tort recovery from negligence."

Thus, the government now contends that a statute that addresses "combatant activities of the military or naval forces, or the Coast Guard, during time of war" should serve to bar meaningful compensation to the active duty family members of Asenath German and Elijah Price, simply because they have chosen to serve their country.  

The district court in Florida is expected to rule on the government's motion to dismiss in the German case in the next few weeks.

UPDATE: On March 5, 2012, the U.S. government withdrew its motion to dismiss based on Feres in the German case.

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