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    Combating the Feres Doctrine

    By Shaymaa Jamil Shwel*   |   7 St. Thomas J. of Complex Litig. 1 (2020)

    “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.”1

    Sgt. 1st Class Richard Stayskal (“Stayskal”), a Green Beret and former Marine, husband, and father of two daughters was deployed to Iraq in 2004.2  During his deployment, this Green Beret was shot by an Iraqi sniper, a shot which lodged a bullet in his [left] lung, nearly killing him.3  Stayskal miraculously survived the sniper round that pierced his left lung because of the excellent work of his doctors; however, thirteen years later, he would not be so lucky.4

    In January 2017, Stayskal was selected by the Army Special Forces Group to attend Special Forces Underwater Dive School, and because of his previous gunshot wound it was mandatory for him to have a CT scan done for both his safety and the safety of others.5  Stayskal visited Womack Army Medical Center at Fort Bragg,6 a military installation in North Carolina, to have a CT scan done and reviewed, and after being given a clean bill of health, he was cleared for dive school.7  However, around March of 2017, Stayskal started to experience difficulty breathing, specifically when he would lay down.8  His breathing problems became so severe that Stayskal began to cough up blood, he recalled “it [feeling] like [he] was being waterboarded with blood.”9  In May of 2017, Stayskal was rushed to Womack Army Medical Center where the doctors reread Stayskal’s CT scan from January and determined that there was an abnormality that needed to be reexamined.10  Yet, strangely enough, Stayskal was sent home with a diagnosis of pneumonia.11  However, this time around, it was dire because after Stayskal was sent home, his condition worsened once more, which is when Stayskal knew he could not trust his doctor’s diagnosis.12

    After advocating for permission to get an appointment with a civilian pulmonologist, he was finally able to see a doctor by the end of June 2017.13  Six months after his first appointment at Womack Army Medical Center in Fort Bragg, the civilian pulmonologist diagnosed Stayskal  with stage 3A non-small lung cancer.14  Even though Stayskal had been diagnosed and was being treated, by December 2017 the aggressive cancer had spread throughout his body.15  After his first visit to the civilian pulmonologist in June 2017 he discovered that the Army doctors had taken notice of the mass in his lung, but chose not to act or notify Stayskal of the irregular growth they had discovered.16 17 Stayskal is currently diagnosed with stage IV lung cancer and does not know how long he has to live.18  Adding insult to his injury, Stayskal is unable to file suit alleging  medical malpractice by incompetence of the government doctors because of a doctrine called the Feres Doctrine.19

    There are two ways that the Feres Doctrine can be overturned, thus allowing servicemen to sue the government: (1) by the United States Supreme Court overturning its initial ruling, or (2) by Congress passing legislation that amends the Federal Tort Claims Act (the “FTCA”).20  In 2019, Stayskal and his attorney headed out to Washington, D.C. to initiate a change of the current law and met with Senator John Kennedy (R-Louisiana) and Senator Mazie Hirono (D-Hawaii).21
    Senator Kennedy and Senator Hirono have introduced a version of the SFC Richard Stayskal Military Medical Accountability Act of 2019 (the “Stayskal Act”), that would allow the servicemembers to sue the government for cases involving military medical malpractice.22  In December of 2019, Congress passed its version of the Stayskal Act and President Donald Trump signed it as part of the National Defense Authorization Act.23  The provision in the National Defense Authorization Act introduced a change to a law preventing past and present service members from being able to sue the federal government.24

    Because of the injustice of the Feres Doctrine, this note will discuss the following: (1) the history surrounding the FTCA and the Feres doctrine; (2) the direction the Stayskal Act was projecting for; (3) a suggestion for Congress to mark an end to the Feres Doctrine era and allow military medical malpractice claims; and (4) finally, conclude with a summary of this note’s goals.

     I. Federal Tort Claims Act and Feres

    The judicial doctrine of sovereign immunity holds that the government cannot be sued without its consent.25  The idea of sovereign immunity has been established prior to the 20th Century, with the idea that the King was not able to commit any wrongdoing.26  In Schillinger v. United States, the court stated, “The United States cannot be sued in their courts without their consent, and in granting such consent Congress has an absolute discretion to specify the cases and contingencies in which the liability of the Government is submitted to the courts for judicial determination.”27

    However, the FTCA is an exception to the doctrine of sovereign immunity, and under the FTCA an individual is allowed to bring a claim against the federal government for personal injuries resulting from an act of negligence by “any employee of the Government while acting within the scope of his office or employment…”28  Before 1946, after a tort was committed by a federal employee, claimants were not left with a remedy.29   In an effort to resolve this dilemma and impose liability on the United States for its negligent employees in the same magnitude as private individuals in similar situations, the FTCA was passed.30  In order for a claim to be filed under the FTCA an individual must show:

    (1) he or she was injured, or his or her property was damaged by a federal government employee;
    (2) the employee was acting within the scope of his or her official duties;
    (3) the employee was acting negligently or wrongfully; and
    (4) the negligent or wrongful act proximately caused the injury or damage of which he or she complains31

    However, the FTCA also has a list of exceptions in which it does not apply, one of them being the military.32  However, a claim can be dismissed for a lack of subject matter jurisdiction, in situations where an exception applies.33  The exceptions to the FTCA in regard to the military indicates that “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war,” would not be applicable to be covered by the FTCA.34
    As this note continues the Feres Doctrine will be discussed, and how the combatant activities exception was modified and expanded to apply to more than just combatant activities.35

    In 1949 in Brooks v. United States, the issue was “whether members of the United States Armed Forces can recover under that [Torts Claims] Act for injuries not incident to their service.”36
    In Brooks, three men were riding in their car when they attempted to enter an intersection before they were struck by a United States Army truck, driven by an employee of the Army.37  At the time of the accident, two of the three men driving in the truck were in the United States Armed Forces, and the government moved to dismiss the claim on the basis that they were barred from recovery under the FTCA.38  The District Court disagreed with the government, whereas the Court of Appeals reversed the decision of the lower court in a divided decision, which allowed for the United States Supreme Court to grant certiorari.39  The U.S. Supreme Court held that the accident was not incident to the victim’s service in the army, thus they could claim tort actions under the Tort Claims Act.40

    In Feres, the Supreme Court decided on “whether the Tort Claims Act extends its remedy to one sustaining ‘incident to the service’ what under other circumstances would be an actionable wrong.”41  The Court considered three separate cases in one opinion, in which the primary focus was on the fact that all three events occurred while each claimant was on active duty and was injured because of negligence of others in the armed forces.42  The Court ultimately decided that because the injuries to the servicemember occurred out of or in the course of activity incident to service, the federal government was not liable under the FTCA.43

    Feres was decided in 1950, and the  Supreme Court held “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.”44  This Supreme Court decision applied to all activity in relation to the servicemembers’ service, including medical malpractice claims of a servicemember that occurred while on duty.45  Therefore, the decision meant that no matter the injury caused to the servicemember, if it was caused during their time in the military, as an active servicemember, the healthcare professional would not be held liable under the FTCA.46  The Feres doctrine is rooted in three policy rationales:

    (1)The distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government to liability based on the fortuity of the situs of the injury; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure.47

    Additionally, in an affirmance of the Feres Doctrine, United States v. Johnson answered the question: “whether the tortfeasor in an alleged negligence claim by a federal government employee must be another servicemember?”48  The Court decided that even if the alleged negligence is by a civilian employee of the federal government, the Feres doctrine bars an FTCA action for an activity incident to service for a servicemember.49  The Feres decision has prevented many servicemembers from raising a claim.50  With several attempts to overturn the Feres decision, the most recent is the Stayskal Act presented by the senators.51

    II. Medical Malpractice and the Stayskal Act

    Medical malpractice occurs when a hospital, doctor, or other health care professional causes an injury to a patient, either through a negligent act or omission.52  Injuries to a patient can include, but are not limited to: a misdiagnosis, failure to properly read test results, or improperly treating a patient.53  A patient can bring a case against a healthcare professional to recover for their injuries as long as they can show a violation of the standard of care, that an injury was caused by that negligence, and the injury resulted in significant damages to the patient.54  However, in the military, medical malpractice is a field lacking frequent discussion since it is very narrow in its application.

    Because of the decision to fight the Feres Doctrine, Stayskal testified against Congress in efforts to urge lawmakers to change the Feres Doctrine.55  Stayskal has conveyed that he is not just fighting for money, but he is fighting to ensure that doctors adequately perform their jobs, and those who neglect to do so are removed from their positions.56  He is arguing for a change not only for himself, but for other service members and their families who do not have the same right as the rest of the citizens in the United States regarding medical malpractice.57

    The Stayskal Act proposes an amendment to Chapter 171 of title 28, United States Code by adding §2681 titled “Claims against the United States for injury and death of members of the Armed Forces of the United States,” and it reads:

    A claim may be brought against the United States under this chapter for damages relating to the personal injury or death of a member of the Armed Forces of the United States arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) that is provided at a covered military medical treatment facility by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the United States.58

    The Stayskal Act will cover facilities that are described in subsections (b), (c), and (d) of section 1073d of title 10, Military medical treatment facilities.59

    III. Turning the Page on Feres

    Now is the time for change, the Feres Doctrine must be modified.  As previously discussed, under the Feres doctrine, servicemembers are not allowed to recover for negligence claims against federal employees even if they occurred in non-combat areas.60  However, as Justice Scalia61 articulated in his dissenting opinion in Johnson, the language of § 2680(j) expressly “excludes ‘[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war,’ [] demonstrating that Congress specifically considered, and provided what it thought needful for, the special requirements of the military.”62 Hence, if Congress had intended for the exception decided in Feres to exist, they would have considered, and provided, it like they done with the exception for preventing claims arising on a combat zone.63

    The decision of Feres states 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.64 (emphasis added).  However, there are two issues within that statement: (1) the FTCA does not use the phrase incident to service, and (2) the Court in Feres did not define what it means for an activity to be incident to service.  Nevertheless, if the phrase incident to service were to be defined, dissecting the phrase is the starting point.  First off, incident is defined as an event that occurs as a result of a connection.65  Service is defined as the duty or work of a person.66  Individually the meaning of incident and service are clear, however when these words are combined to create the phrase incident to service, their meaning has proven to be anything but clear.  Thus, to ultimately clarify its meaning, Congress should implement the following definition for incident to service: an event that is within the scope of the service member’s duties while on active duty.

    Using that definition, the claims of each of the servicemembers are not in accordance with the reasons of why they are rejected.  For example, child birth, as in the case of Rebekah Daniel, is not within the scope of a servicemember’s duties as a member in the service.67  Additionally, neither is Stayskal’s case, since the main issue in Stayskal’s situation was that the Army doctors neglected to notify him of a mass in his lung, and that neglect delayed his treatment.68  Neither case arose out of issues related to the servicemember’s duties in the military, such as a gunshot wound to the leg while in combat, or a death arising from a truck exploding while in enemy territory.69

    The idea that an active servicemember is not permitted to sue for medical malpractice is difficult to grasp.  The rationale behind allowing medical malpractice claims is to provide compensation to patients injured by the negligence of healthcare professionals, and to deter negligent practice by healthcare professionals.70 Should not all doctors be held to the same standard?  If all doctors take the same oath when they enter the medical field, then they should all be held accountable for their actions no matter their employer; at the end of the day they have the same responsibility to maintain and restore an individual’s health.71 The Feres Doctrine is not only preventing active servicemembers from bringing medical malpractice claims, but it is protecting military doctors that have committed negligent acts.

    a. The Supreme Court’s Role

    As previously mentioned, there are two ways for the Feres Doctrine to be overturned, one being the Supreme Court overturning it itself.  The decision in Feres has barred several claims, and has also tied the hands of circuit courts across the nation due to its ruling.72 The Supreme Court has previously overturned two-hundred and thirty-six of its own decisions.73  The decisions that have been overturned range from racial segregation when Plessy v. Ferguson was overturned by Brown v. Board of Education, to capital punishment cases when McGautha v. California was overturned by Gregg v. Georgia.74 However, the Supreme Court has repeatedly turned down the opportunity to take on the challenge of overturning Feres.75  The most recent case to challenge the Feres Doctrine at the Supreme Court, was Daniel v. United States.76  Daniel’s petition was denied, and while Justice Thomas77 dissented from the denial of certiorari, it is notable that, Justice Ginsburg78 would have granted the petition for a writ of certiorari, dissented from the denial of certiorari.[79] 79 Although the Supreme Court has repeatedly refused to overturn Feres, there is another option to making the change, and that is for Congress to take on the lead role.

    b. Next Steps for Congress

    At the present stage, in order for the Feres Doctrine to be overturned Congress must adopt the entire idea that the Stayskal Act is presenting which is primarily overturning the Feres Doctrine.  The current statute was not created by the legislatures with the intent to bar military claims under the FTCA in cases other than those that arise from combat activities.80  With the National Defense Authorization Act, the troops are still not able to file lawsuits in court but they are able to file claims through a Pentagon review process.81  The country is in desperate need for a drastic change, one that would hold negligent individuals accountable.  Congress should have allowed for a modification of the current law, instead if allowed for the Department of Defense to handle the entire process which still prevents complete ramifications to occur.  As Dwight Stirling from the Center for Law and Military Policy correctly stated, “having the entire process handled within the Department of Defense is a little a fox guarding the hen house.”82

    i. The Lives Affected

    The result of Feres has been implemented over the course of nearly seventy years.83 Like Stayskal, Walter Daniel is among those affected by the results of Feres.  Walter Daniel’s wife, Navy Lieutenant Rebekah Daniel, died post-labor due to postpartum hemorrhaging, which may have been prevented if the medical staff had exercised the proper standard of care.84  However, as a result of the decision in Feres, Walter Daniel was unable to pursue a lawsuit against the medical staff.85  These are just a couple of the victims of the Feres Doctrine, and because of these injustices the Feres Doctrine should be overturned.

    The change needs to start with military installations.  Thousands of service members should be the first priority for receiving healthcare services from practitioners that are focused on providing the best service available.  Womack Army Medical Center is located in Fort Bragg, the largest Army installation worldwide by population.86  With the Womack Army Medical Center serving over 160,000 TRICARE87beneficiaries,88 the risk of medical malpractice is too high for a mistake on behalf of a negligent employee to occur.

    Allowing for individuals that are receiving healthcare from the military to sue is not a new concept within the military.  A majority of the 9.4 million individuals that do receive healthcare from the military can sue, whereas active servicemembers are the only ones prohibited from doing so.89  This rationale does not add up logically or morally.  First off, it does not make logical sense because the Feres Doctrine only applies to active service members and not retirees or to the service member’s family.  Secondly, it does not make moral sense because, as Congresswoman Rep. Jackie Speier (D-California) who had initially introduced the Stayskal Act stated, “[a prisoner] can sue under the FTCA for malpractice but a service member cannot who is not in a combat setting?  This is a gross example of judicial activism of the worse kind.”[90] 90 91  That speaks volumes because there are individuals that are in combat zones putting their lives on the line for an entire country having less rights than most other citizens in the United States.

    ii. Moving in the Right Direction

    One argument behind keeping the Feres Doctrine comes from Paul Figley, professor of legal rhetoric at American University’s Washington College of Law, who argues that altering the Feres Doctrine would disrupt the “vital and special relationships between the government and its service members.”92  However, the main argument is not to sue to Government for compensation, the main purpose behind the movement for change is to hold health professionals accountable for their negligence and not allowing life-altering mistakes to go by uncared for.

    Senator Lindsey Graham (R-South Carolina) is against overturning the Feres Doctrine stated:

    The deal is: You sign up for the military. You get disability. You get benefits. Your family gets well taken care of and you’re not able to sue. It’s not just malpractice. You have the Federal Torts Claim Act that’s available to you. But, when pilots fly new planes, we’re not gonna create liability there. I think it’s a trade-off that’s stood the test of time.[93] 93

    However, Senator Graham’s statement is not the reasoning behind why the Feres Doctrine should be overturned.  It is to hold negligent employees accountable and because the need for the change is highly misunderstood; yet another reason why the change is so necessary.

    The implementation of the Stayskal Act is essential, and proposes the appropriate amount of change to law.  Even if the Stayskal Act is implemented as a new section to the FTCA, the current regulation with respect to not allowing service members to initiate a lawsuit for medical mistakes that occurred in a combat zone94 will remain intact, which is a completely reasonable proposal.  This proposal is completely reasonable because a medical mistake that occurred in a combat zone is likely to occur because of the general nature associated with being in a combat zone.  The Stayskal Act stays within the limits of the FTCA by “allowing claims against the United States for injury and death of members of the armed forces caused by improper medical care,”95 because it does not over step and is geared towards holding negligent employees liable for their actions.

    This new method is said to be “the second best thing” according to Speier, which is quoted to be “a huge win.”96  However, the individuals who pursue a career protecting this country deserve more than the second best thing, they deserve justice, not because they are entitled to it, but because they earned it.  One argument presented for not allowing actual lawsuits to be initiated is because litigation becomes a distraction and takes time from the sole mission of the military, and that is to defend the nation.97  However, that claim is not valid because military lawyers that hold the title “lawyer”98 should understand that holding that title also includes holding the responsibilities of what the job entails.

    The new change is not enough because as Dwight Stirling, who also serves as a lawyer in the California National Guard, best stated: “We lock the doors of the courthouse, and we say we appreciate the fact that you are giving your life to help to preserve our freedom . . . [b]ut we’re not going to give you the access to go to court and hold the wrongdoer to account.”99  The new law does in fact hold someone accountable, however, the accountability is technically behind closed doors and to the discretion of the Pentagon.  Therefore, if the servicemember does not agree with Department of Defense’s evaluation of the case there is no alternative recourse.

    c. Changing the Statute of Limitations

    The new legislation allows victims two years from the date of injury to file a claim, with the exception of the year 2020 in which individuals can “file claims for injuries that occurred in 2017.”100  However, the statute of limitations on filing a claim is highly unjust because other federal claims outside of the malpractice field allow for greater amounts of time, ranging from as minimal of six years to twenty years.101

    One example is that an individual can be prosecuted for federal tax evasion after six years of the crime; but an individual that has a military medical malpractice claim is not afforded the same courtesy.  However, because a medical malpractice claim is a civil claim and not a criminal claim, I propose that, at a minimum, the statute of limitations be extended to three years.  The three-year calculation is based on the greatest statute of limitations across the United States, which is prevalent in several states, such as Maryland, Massachusetts, and Montana.102  To be exact with the statute of limitations, it must be clear that the suggested three-year limitation is based on the date of when the injury is discovered.  Although some states do have a statute of repose,103 it is to be clear that a statute of repose should not be included in changing the proposed statute of limitations.

    IV. Conclusion

    In conclusion, the best way to phrase the reasoning behind overturning the Feres Doctrine and passing the Stayskal Act the initial way it was presented was said best by Congressman Markwayne Mullin (R-Oklahoma), “[t]his legislation provides checks and balances to the Military Health System to ensure physicians are providing the highest levels of care to our men in women in uniform and gives patients recourse against negligent care.”104  This analysis proposes that Congress overturn the Feres Doctrine to ensure that government employees are held responsible for their negligence by: (1) passing the original Stayskal Act proposed; (2) adding a definition for ‘incident to service’ to the Stayskal Act in order to clarify the meaning for future cases; and (3) extending the statute of limitations without imposing a statute of repose.

    * Shaymaa Jamil Shwel – Juris Doctor Candidate May 2021, St Thomas University School of Law, ST. THOMAS JOURNAL OF COMPLEX LITIGATION, Member. I dedicate this article ultimately to my grandma, Badia Ahmad, whose goal in life was to see her children and grandchildren succeed. Additionally, I would like to dedicate this article to my parents, Mariam and Jamil Shwel, and my brothers, Belal and Mohamed Shwel, if it were not for their nonstop encouragement I would not be where I am today, I thank them and hope to make them proud.

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