Feres Doctrine, Iraq and VA Medical Malpractice
This legal memoranda addresses whether the Feres doctrine prevents an FCTA negligence / medmal claim on behalf of a discharged Iraq war veteran who received inadequate psychiatric care from a Veteran's Affairs hospital and subsequently committed suicide.
Feres Doctrine, Iraq, and VA Medical Malpractice
ISSUE: Will the Feres doctrine prevent an FCTA negligence / medmal claim on behalf of a discharged Iraq war veteran who received inadequate psychiatric care from a Veteran's Affairs hospital and subsequently committed suicide?
BRIEF ANSWER: No, the Fed. Tort Claims Act is not likely to bar a wrongful death action in this case. Precedent reveals a dichotomy within the Supreme Court’s treatment of FTCA claims: either the plaintiff’s injury is “incident to service” and therefore barred by the Feres doctrine, or it is not. The caselaw supports the conclusion that veterans are considered to be far-enough removed from service to be beyond the Feres bar. The similarity between the facts in the instant case and, for example, those in Brown (where an active duty serviceman was wounded in battle, was operated on while active duty, was honorably discharged, and then was operated on in a negligent manner a second time) favor an interpretation of our veteran’s negligent psychiatric treatment as a separate and wholly independent tort, occurring after his period of service. Carrying this point should prevent any application of the Feres doctrine.
FACTS
A veteran of the Iraq war was treating at the VA for depression. He was released with little care, and subsequently shot himself.
DISCUSSION
History
The development of the Feres doctrine, for our purposes, is for the most part a story of three FTCA cases from the early 1950s. At the core, if the specific facts indicate that a plaintiff’s injury was “incident to service” then the Feres doctrine is in all likelihood applicable, and the claim will be barred. On the other hand, if the injury is not “incident to service” then a FTCA claim is valid insofar as it will not barred by Feres.
Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918 (1949), represents the origin of the “incident to service” language, but comes out in favor of recovery against the United States under the Federal Tort Claims Act for the death of one soldier and injuries sustained by another, while they were on furlough, when a privately owned automobile in which they were riding was struck by negligently operated Army truck. The Court gives a nod to the Government’s desire to keep FTCA immunity as broad as possible, but rejects it, writing:
[T]he Government envisages dire consequences [...] A battle commander’s poor judgment, an army surgeon’s slip of hand, a defective jeep which causes injury, all would ground tort actions against the United States. But we are dealing with an accident which had nothing to do with the Brooks’ army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks’ service, a wholly different case would be presented. Id. at 52 (emphasis added). In the case of our veteran, as in Brooks, the injury which occurred due to inadequate treatment at a V.A. hospital was not incident to his service, in the sense of following orders or being subject to military discipline. At most, a causal connection exists in the sense that “all human events depend upon what has already transpired.”
Because the Brooks decision was somewhat open-ended, the Supreme Court immediately granted certiorari to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153 (1950), which combined three independent FTCA claims into one, this time involving active duty service members. Lieutenant Feres perished by fire in the barracks at Pine Camp, New York, while the cases of Griggs and Jefferson, both involved alleged medical negligence. Noting the “vital distinction” between Brooks and Feres, Justice Jackson wrote,
"[T]he injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission… the Government contended that there could be no liability to [the sons/passengers] solely because they were in the Army. This Court rejected that contention… We conclude 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.” Id. at 146. The “incident to service” language is at the center of the controversy and confusion with which the Feres doctrine is shot through. It is this phrase that prevents the majority of FTCA claims brought by active service members from obtaining recovery. It is irrelevant, however, to our instant case, because to the oh-so-helpful labels ‘incident to service’ and ‘not incident to service’ the Court added a third category, “post-discharge” injury. Many radiation-exposure claims meet this requirement, and our case parallels those closely, as we shall see."
In 1954, the Supreme Court heard United States v. Brown, 348 U.S. 110, 75 S.Ct. 141 (1954), which introduced an exception to the Feres doctrine: the “post-discharge"tort. Brown was on active duty and was wounded in the left knee; in 1944 he was honorably discharged as a result. In 1950, the Veterans Administration performed an operation on the knee, but it continued to dislocate frequently. So, in 1951 another operation was performed by the V.A. It was during this second operation that an allegedly defective tourniquet was used, as a result of which the nerves in Brown’s leg were seriously and permanently injured.
The Supreme Court heard this case because of doubts about whether Brooks or Feres should control. Importantly, the Court points out “the Feres decision did not disapprove of the Brooks case. It merely distinguished it, holding that the Tort Claims Act does not ‘cover injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.’” Feres at 146.
The rationale of the Court fits our narrative of the instant case very well:
The present case is, in our view, governed by Brooks, not by Feres. The injury for which suit was brought was not incurred while respondent was on active duty or subject to military discipline. The injury occurred after his discharge, while he enjoyed a civilian status. The damages resulted from a a defective tourniquet in applied in a veterans’ hospital. Respondent was there, of course, because he had been in the service and because he had received an injury in the service. And the causal relation of the injury of the service was sufficient to bring the claim under the Veterans Act. But, unlike the claims in the Feres case, this one is not foreign to the broad pattern of liability which the United States undertook by the Tort Claims Act.
Brown at 112. The statutory language of the FTCA provides, “the United States shall be liable [...] in the same manner and to the same extent as a private individual under like circumstances [...]” 28 U.S.C. § 2674. A major point of emphasis in Feres was the undesirability of expanding the liability of the government from “recognized causes of action” to “novel and unprecedented liabilities.” Feres at 142. However, as the Brown opinion explains, responsibility of hospitals to patients is a duty for the breach of which most local laws would provide a remedy.
From this point in 1954, the “Feres doctrine” prong of the FTCA immunity question would proceed to grow ever more complicated up to the present, while the “Brooks / Brown” prong was fundamentally in place and has remained that way.
Discussion of Caselaw
The most recent decision to come down from the Supreme Court addressing the issue of FTCA claims and the Feres doctrine is United States v. Johnson, 481 U.S. 681 (1987). As is the case with Apart from the fact that Justice Scalia wrote a scathing dissent of the continued existence of the Feres doctrine (see Johnson at 692)(”...neither the three original Feres reasons nor the post hoc rationalization of “military discipline” justifies our failure to apply the FTCA as written. Feres was wrongly decided and heartily deserves the “widespread, almost universal criticism” it has received.”), the Johnson decision bears no relation to our inquiry: what liability does the Government have to a veteran under FTCA? In the years since Brown, in fact, the Supreme Court has not had much to say about the viability of a FTCA claim by a veteran: no Circuit-level cases that have granted recovery to “non-incident” injuries have been granted certiorari.
Courts throughout the 6th circuit have heard numerous cases which solidify the ground upon which the “veteran / non-incidental” theory is built. In Woodside v. U.S., 606 F.2d 134 (6th Cir. (Ohio) 1979) the court undertook a discussion of Brown while parsing out the nuances of a Feres question that ultimately barred recovery for the death of an off-duty serviceman: “Brown, an honorably discharged serviceman, had been admitted to a government hospital for treatment of complications resulting from an incident-to-service injury. However, the Court concluded that the veteran could sue for injuries sustained in the Veteran’s hospital because they were not incident to his military service.” See also Wojton v. U.S., 199 F.Supp.2d 722 (S.D.Ohio 2002)(holding that veteran’s facially-sufficient pleading withstood FRCP Rule 12(b)(1) motion to dismiss on subject matter jurisdiction); Brown v. U.S., 451 F.3d 411 (6th Cir. (Mich.) 2006)(holding that claims related to allegedly negligent medical examination of serviceman which occurred three years after his release from active duty were not barred by Feres doctrine).
By contrast, where the plaintiff’s injury is “incident to service” the Feres doctrine is largely inescapable. For example, in Sidley v. U.S. Dept of Navy, 861 F.2d 988 (6th Cir. 1988) where an active servicemen had a motorcycle crash off-base and claimed Navy doctors negligently treated his fractured leg, but when the the Government invoked the Feres doctrine the court found that Feres barred his claim and that the court lacked subject matter jurisdiction. Simlarly, the wife of the deceased in Martin v. U.S., 856 F.2d 195, (6th Cir. (Mich.) 1988) filed a wrongful death claim against the Dept. of the Navy alleging that her husband’s death was due to negligent diagnosis and treatment of leukemia. Here, too, the Government pointed out to teh court that the deceased had been active duty at all times relevant; the 6th Circuit granted summary judgment for the Government.
One of the most frequent criticisms of the Feres doctrine is its inflexibility in the face of seeming injustice, as Satterfield v. U.S., 788 F.2d 395 (6th Cir. (Ky.) 1986) demonstrates. There, it was held in a wrongful death action that a serviceman who died of a beating inflicted by another serviceman while off duty was incident to his military service, and that secondly his action was barred by the intentional tort exception of the FTCA, notwithstanding that the claim was couched in negligence language.
Radiation Exposure Cases / “Separate Torts”
To adequately cover the topic (and to adapt it to fit the Camp Lejeune water cases) would require a separate memorandum, but it is worth mentioning here that in addition to the veteran / active dichotomy, a secondary theory can suffice to create actionable claims.
In Everett v. US, 492 F.Supp. 318 (D.C. Ohio, 1980), plaintiff was exposed to radiation while on active duty, but was not warned. He brought two separate tort claims against the Gov’t: (1) negligent exposure to dangerous radiation (which claim is barred by Feres), and (2) failure of the Army to warn him of the danger of the exposure. Because the Army was unaware of the danger of exposure in the 1950s when plaintiff retired from active duty, the second independent act occurred wholly after his discharge.
This sort of claim will not always work, because the Government can raise the defense of “recurring tortfeasance” and demonstrate that, for example, a soldier had been exposed to radiation in 1949 and at that the time the Government knew of its harmful effects but breached a duty to the soldier to inform him; when the soldier retires in 1950 the Government's continuing failure to warn him of danger is a perpetuation of the initial tort, not an entirely separate-from-Feres and therefore actionable claim.
CONCLUSION
As long as the plaintiff in an FTCA action is a veteran, he should be clear of the Feres doctrine.