    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

         CARMELO RODRIGUEZ MILITARY MEDICAL ACCOUNTABILITY ACT OF 2009

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                SUBCOMMITTEE ON
                       COMMERCIAL AND ADMINISTRATIVE LAW

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

                                   H.R. 1478

                                   __________

                                 MARCH 24, 2009

                                   __________

                                Serial No. 111-7

                                   __________

             Printed for the use of the Committee on the Judiciary

          Available via the World Wide Web: http://judiciary.house.gov

                                     ------

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                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    LUIS V. GUTIERREZ, Illinois          JASON CHAFFETZ, Utah
    BRAD SHERMAN, California             TOM ROONEY, Florida
    TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York
    [Vacant]

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

               Subcommittee on Commercial and Administrative Law

                        STEVE COHEN, Tennessee, Chairman

    WILLIAM D. DELAHUNT, Massachusetts   TRENT FRANKS, Arizona
    MELVIN L. WATT, North Carolina       JIM JORDAN, Ohio
    BRAD SHERMAN, California             DARRELL E. ISSA, California
    DANIEL MAFFEI, New York              J. RANDY FORBES, Virginia
    ZOE LOFGREN, California              HOWARD COBLE, North Carolina
    HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
      Georgia
    ROBERT C. ``BOBBY'' SCOTT, Virginia
    JOHN CONYERS, Jr., Michigan

                         Michone Johnson, Chief Counsel

                        Daniel Flores, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 MARCH 24, 2009

                                                                       Page

                                    THE BILL

    H.R. 1478, the ``Carmelo Rodriguez Military Medical
      Accountability Act of 2009''...................................     3

                               OPENING STATEMENTS

    The Honorable Steve Cohen, a Representative in Congress from the
      State of Tennessee, and Chairman, Subcommittee on Commercial
      and Administrative Law.........................................     1
    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Ranking Member, Subcommittee on
      Commercial and Administrative Law..............................     7
    The Honorable John Conyers, Jr., a Representative in Congress
      from the State of Michigan, Chairman, Committee on the
      Judiciary, and Member, Subcommittee on Commercial and
      Administrative Law.............................................    68

                                   WITNESSES

    The Honorable Maurice D. Hinchey, a Representative in Congress
      from the State of New York
      Oral Testimony.................................................    84
      Prepared Statement.............................................    88
    Mr. Stephen A. Saltzburg, Professor, The George Washington
      University Law School, Washington, DC
      Oral Testimony.................................................    96
      Prepared Statement.............................................    98
    Ms. Ivette Rodriguez, Wurtsboro, NY
      Oral Testimony.................................................   116
      Prepared Statement.............................................   118
    John D. Altenburg, Jr., Esq., Major General (Retired), United
      States Army, Greenberg Traurig, LLP
      Oral Testimony.................................................   122
      Prepared Statement.............................................   124
    Eugene R. Fidell, Esq., Yale Law School, National Institute of
      Military Justice, Washington, DC
      Oral Testimony.................................................   146
      Prepared Statement.............................................   148

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Material submitted for the hearing by the Honorable Trent Franks,
      a Representative in Congress from the State of Arizona, and
      Ranking Member, Subcommittee on Commercial and Administrative
      Law............................................................     9
    Material submitted for the hearing by the Honorable John Conyers,
      Jr., a Representative in Congress from the State of Michigan,
      Chairman, Committee on the Judiciary, and Member, Subcommittee
      on Commercial and Administrative Law...........................    69

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr., a
      Representative in Congress from the State of Michigan,
      Chairman, Committee on the Judiciary, and Member, Subcommittee
      on Commercial and Administrative Law...........................   171
    Response to Post-Hearing Questions from Stephen A. Saltzburg,
      Professor, The George Washington University Law School,
      Washington, DC.................................................   172
    Response to Post-Hearing Questions from John D. Altenburg, Jr.,
      Esq., Major General (Retired), United States Army, Greenberg
      Traurig, LLP...................................................   174
    Response to Post-Hearing Questions from Eugene R. Fidell, Esq.,
      Yale Law School, National Institute of Military Justice,
      Washington, DC.................................................   232
    Letter from Stephen A. Saltzburg, Professor, The George
      Washington University Law School, Washington, DC...............   235
    Letter from Adele Connell, Ph.D., Colonel, United States Army....   236
    Letter from Alexis Witt..........................................   242
    Letter from L. Richard Fried, Jr., Esq., Cronin, Fried, Sekiya,
      Kekina & Fairbanks.............................................   248
    Letter from Barb Cragnotti, VERPA Chair/Legislative Coordinator..   249

         CARMELO RODRIGUEZ MILITARY MEDICAL ACCOUNTABILITY ACT OF 2009

                                  ----------

                            TUESDAY, MARCH 24, 2009

                  House of Representatives,
                         Subcommittee on Commercial
                                and Administrative Law,
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 2:24 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Steve
    Cohen (Chairman of the Subcommittee) presiding.
        Present: Representatives Cohen, Conyers, Maffei, Scott,
    Franks, Jordan, and King.
        Staff present: Matthew Wiener, Majority Counsel; Adam
    Russell, Majority Professional Staff Member; and Zachary
    Somers, Minority Counsel.
        Mr. Cohen. This hearing of the Committee on the Judiciary,
    Subcommittee on Commercial and Administrative Law will now come
    to order. Without objection, the Chair will be authorized to
    declare a recess of the hearing. I will now recognize myself
    for a short statement.
        The Federal Tort Claims Act makes the Federal Government
    liable for injuries or death caused by the negligence of its
    employees; however, Congress excluded a couple exceptions in
    the act. One excludes any claim arising out of the combatant
    activities of the military or naval forces or the Coast Guard
    during time of war. In a 1950 case called Feres v. United
    States, the U.S. Supreme Court created another exception: that
    service members can never sue under the act whenever their
    injuries are incidents of service. That hole that has come to
    be known as the Feres Doctrine.
        The Court has reasoned that Congress must have intended to
    exclude suits by service members even though it provided no
    such exclusion in the actual language of the act. The Court has
    offered several reasons for its conclusion, the main one being
    that Congress must have believed that tort lawsuits by service
    members would interfere with military discipline and put
    civilian courts in the business of second guessing military
    decision-making.
        The Feres Doctrine has been subject to strong criticism
    within the Court itself. Justices who have been as diverse in
    their approaches to statutory interpretations as Justices
    Stevens and Scalia have condemned it. Nevertheless, the Court
    has stood by it for almost 60 years and will likely continue to
    do so.
        Several bills have been introduced over the years that
    would have harshly overturned Feres and allowed service members
    to bring medical malpractice claims. One such bill passed the
    House during the late 1980's.
        Enter Maurice, Representative Maurice Hinchey, who will
    testify before us today. He has returned to the issue this
    Congress by introducing H.R. 1478, the ``Carmelo Rodriguez
    Military Medical Accountability Act of 2009.'' H.R. 1478 would
    allow service members injured or killed as a result of military
    medical malpractice to bring suit under the Federal Tort Claims
    Act with one important exception: they would not be allowed to
    bring suits ``arising out of the combatant activity of the
    armed forces during times of armed conflict.''
        Today's hearing will examine H.R. 1478 and whether there is
    adequate justification for continuing to deny our active duty
    service members legal redress under the Federal Tort Claims Act
    when they are killed or injured as a result of medical
    malpractice. Accordingly, I look forward to receiving today's
    testimony.
        [The bill, H.R. 1478, follows:]

        Mr. Cohen. I now recognize my colleague, Mr. Franks, the
    distinguished Ranking Member of the Subcommittee, for his
    opening remarks.
        Mr. Franks. Well, thank you, Mr. Chairman. And let me
    begin, sir, by emphasizing that I sincerely embrace the concern
    expressed by this legislation for service members who have
    suffered because of medical malpractice. As you may know, sir,
    I am a member of the Armed Services Committee, and I believe
    that one of my greatest responsibilities as a Member of
    Congress is the needs and the interests of those men and women
    who put their lives on the line for the sake of this country,
    and that is a very deep commitment on my part.
        In order to maintain a well-disciplined, motivated
    military, it is essential that service members understand that
    they are being treated fairly in all aspects, including fair
    compensation for service-related injuries. The question this
    legislation raises, however, is whether removing the Feres bar
    to medical malpractice would further military discipline,
    morale, and fair compensation. And Mr. Chairman, it is my
    sincere opinion that it would not.
        Rather, this bill would superimpose on the military's
    uniform no-fault compensation system a privileged class of
    claimants within the armed forces itself. H.R. 1478 would
    create the anomaly of offering a tort remedy with the
    possibility of substantial compensation to a member who loses a
    limb through a medical mistake while denying the same
    compensation to one who loses the limb in combat. This could
    demean injuries suffered in combat by providing the soldier
    injured on the battlefield with administrative compensation
    while the soldier injured in a military hospital could seek a
    multi-million dollar damage award in Federal court.
        What is more, Mr. Chairman, because the Federal Tort Claims
    Act bases liability on state law, recovery will depend upon the
    local tort laws where the service member is stationed. Thus, a
    service member stationed in California will be subject to one
    set of rules while one stationed in North Carolina will be
    subject to another. Selective compensation based on duty
    station falls short of the even-handed fairness and justice
    needed to preserve military morale.
        One of the chief benefits of the existing statutory
    compensation structure, along with the doctrine, is that
    comparable injuries are treated uniformly. This uniformity
    promotes military discipline, morale, unity, and commitment.
    While it is sometimes argued that the Feres Doctrine is unfair
    to service members who are the victims of medical malpractice,
    the Feres Doctrine is an adjunct to the military disability
    compensation package that is available to service members.
        If we believe that the current system is inadequate or is
    producing unfair results, we should work to correct that
    system. We should not take the expedient of turning select
    military claims over to trial lawyers and the tort system. In
    short, if the current no-fault military compensation program
    needs to be improved, if additional funding or other reform is
    needed, then we should improve that program. There is not
    excuse for providing our troops less compensation than they
    deserve.
        And I want you to know, just outside the bounds of my
    written comment here, I would be one that would be very open to
    increasing that compensation to those soldiers who put
    themselves in such harm's way.
        However, if the current system is not working properly,
    repealing the Feres Doctrine is not the solution. This country
    can provide our service members with the meaningful benefits
    that they need without making the brave men and women that
    serve resort to litigation. Thus, our focus should not be on
    allowing medical malpractice litigation, but on improving the
    overall military compensation system for all of this country's
    service members.
        So before closing, I just want to note that I am
    disappointed that we did not hold this hearing at a time when
    the Departments of Justice and Defense were available to give
    their views on this legislation, and I would ask unanimous
    consent to enter into the record testimony from those
    departments from the 1991 and 2000 hearings on legislation to
    modify the Feres Doctrine.
        And with that Madam--I mean, Mr. Chairman--with that, Mr.
    Chairman, I would yield back and thank you, sir.
        Mr. Cohen. I thank the gentleman for his statement. We will
    accept the testimony, as dated as it may be, as part of the
    record, although I believe we did invite them to testify and--
    --
        [The information referred to follows:]

                                  ----------

                                  ----------

        Mr. Franks [continuing]. You did invite them to testify?
    They weren't available? Okay. They weren't available.
        Mr. Cohen. I now recognize Mr. Conyers, a distinguished
    Member of the Subcommittee, and the Chairman of the Committee
    on the Judiciary.
        Mr. Conyers. Thank you, Chairman Cohen. I think this is
    important.
        I don't know what some lawyers have against other lawyers.
    I mean, this has--it has always been incredible to me, some of
    the people that criticize lawyers. You know, when you want a
    lawyer, you want a good, tough, aggressive lawyer, but when
    somebody else wants one you say, ``Oh, gosh. Here we go with
    the litigation again.''
        Now, there are some things that aren't understood here
    about this matter. Nobody in the service can be sued--nobody--
    whether you lost a limb or anything else. So that has
    absolutely nothing to do with the measure that Mr. Hinchey--
    Maurice Hinchey--brings before us today.
        And the Defense Department didn't want to come before us.
    That is why they aren't here.
        Now, I am going to do something I rarely do: quote Justice
    Scalia. I mean, this is a--I can't ever remember doing this
    before. But everybody gets something right sometimes. Broken
    clocks are right at least once a day--twice a day. Thanks.
        Here is Justice Scalia: ``As it did almost 4 decades ago in
    Feres, the Court today provides several reasons why Congress
    might have been wise to exempt from the Federal Tort Claims Act
    certain claims brought by servicemen. The problem now, as then,
    is that Congress not only failed to provide such exemption, but
    quite plainly excluded it. We have not been asked by respondent
    here to overrule Feres, but I can perceive no reason to accept
    petitioners' invitation to extend it as the Court does today.''
        I ask unanimous consent to put the full opinion into the
    record, and I yield back the balance of my time.
        Mr. Cohen. Without objection, the second clock--broken
    clock--will be put into the record.
        [The information referred to follows:]

                                  ----------

        Mr. Cohen. I thank the gentleman for his statement. Without
    objection, other Members' statements will be included in the
    record.
        I am now pleased to introduce the witnesses for our first
    panel. The witness, singular, is Representative Maurice
    Hinchey. Congressman Hinchey represents New York's 22nd
    congressional district, which spans eight counties from the
    Hudson Valley to the Finger Lakes Region. A ninth-term Member
    of Congress, Mr. Hinchey is a Member of the House
    Appropriations Committee, the House of Natural Resources
    Committee, and the Bicameral Joint Economic Committee.
        Prior to his election to Congress, Mr. Hinchey served 18
    years at the New York State Assembly. He was the first Democrat
    elected to the state legislature from Ulster County since 1912,
    and only the second since the Civil War. Mr. Hinchey is the
    sponsor of H.R. 1478.
        Thank you for participating at today's hearing, and
    although I am sure you know the procedure I will go over it
    with you for the benefit of the other witnesses. Without
    objection, your written statement and the others will be placed
    into the record, and we would ask that you limit your oral
    remarks to 5 minutes.
        We have a lighting system, and at 4 minutes the yellow
    light comes on which says you have a minute left. You will have
    a green light on that starts, yellow says 1 minute left, then
    at the end of that minute a red light comes on, in which case
    your testimony should have concluded.
        After each witness has presented his or her testimony,
    Subcommittees Members will be permitted to ask questions
    subject to the same 5-minute limit.
        Mr. Hinchey will start his testimony, but his testimony
    will begin, at his request and with the agreement of the
    minority, with a testimony that Mr. Hinchey has through a short
    video. And before the video I recognize Mr. Hinchey to precede
    the video, which we have.
        Mr. Hinchey, you are recognized.

    TESTIMONY OF THE HONORABLE MAURICE D. HINCHEY, A REPRESENTATIVE
                 IN CONGRESS FROM THE STATE OF NEW YORK

        Mr. Hinchey. Chairman Cohen, I thank you very much, sir.
        Also, Ranking Member Franks, I thank you very much.
        And Chairman Conyers, Chairman of the Judiciary Committee,
    I very much appreciate you being here.
        All of the other very distinguished Members of this
    Subcommittee, I thank you for the attention that you are giving
    to discuss the Carmelo Rodriguez Military Medical
    Accountability Act of 2009. The focus of this hearing is about
    equal protection under the law. The question before you is
    whether or not we, as Members of the Congress, believe that
    members of our Nation's military are deserving of the same
    rights as you and I and the rest of our country.
        In our country, if you or a member of your family goes to a
    doctor or medical professional for treatment and that
    professional is negligent in their job, you have the legal
    right to hold that health care provider accountable, through
    the judicial system. For example, if you had a planned surgery
    to amputate your left leg and the doctor involved was
    negligent, and that surgery removed your right leg, you would
    have a method of recourse. That recourse is available for all
    of our citizens, including those in Federal prison; but that is
    not the case for members of the military.
        I thank you very much for the opportunity to display this
    video, and if we could see it now, I think it would be very
    interesting.
        Mr. Cohen. Thank you----
        Mr. Hinchey. This is a story about one Marine who served
    his country with honor. One Marine, one family. What happened
    to them has happened before.
        [Begin video clip.]
        Voice. You are looking at Carmelo Rodriguez dancing with
    his niece--by all accounts, this 29-year-old loved life, his
    family, and the Marine Corps. In August, a part-time actor--
    here he is with actress Katie Holmes in the scene from the TV
    series, ``Dawson's Creek.'' And this is Sergeant Rodriguez with
    his Marine buddies in Iraq in 2005, a fit, gung-ho platoon
    leader.
        Voice. It is not fair.
        Voice. This was Sergeant Rodriguez when I met him: that
    once buff physique whittled down to less than 80 pounds in 18
    months by stage four melanoma, surrounded by family, his 7-
    year-old son holding his hand. It was the sergeant's idea we
    meet.
        When Sergeant Rodriguez was in Iraq, military doctors, he
    says, misdiagnosed his skin cancer. They called it a wart.
        Eight minutes after I met Sergeant Carmelo Rodriguez, as we
    were preparing for an interview, he died. At his family's
    insistence we stayed. With his body in the next room, we sat
    down with his relatives.
        Why--for such a painful moment for your family?
        Voice. His wish is to have this known, because he don't
    want no other soldier to fight for his country and go through
    what he had to go through, and be neglected.
        Voice. He said, ``Don't let this just be it. Don't let this
    be it. Fight.'' So that is what we are doing.
        Voice. Their fight is over what is known as the Feres
    Doctrine, a 1950 Supreme Court ruling that bars active duty
    military personnel and their families from suing the Federal
    Government for injuries incidental to their service. In other
    words, unlike every other U.S. citizen, people in the military
    can not sue the Federal Government for medical malpractice.
        You use the word ``neglected.'' Explain.
        Voice. When he enlisted in 1997, his initial medical
    checkup, or, I mean, physical, the doctor documented that he
    had melanoma but never told him, or never had anybody follow up
    on it. And that was back in 1997. If we would have known that
    in 1997, he would still be with us.
        Voice. Here is that medical report. The doctor notes skin
    as ``abnormal.'' In further details, he describes it as
    melanoma on the right buttocks. There is not recommendation for
    further treatment.
        Eight years pass. Sergeant Rodriguez is in Iraq.
        Voice. It is a birthmark. It is about that big and about
    that--it has a raise--like that and pussing. Who does that? How
    does that happen? I just don't understand it. It is not right.
    It is not right.
        Twenty-nine years old, you know, and all his life was good.
    Never into drugs; never into partying; never--served his
    country faithful; served the Lord faithfully. And he held out
    positive, because he is a soldier. He is a warrior. He is a
    Marine. He fought for his country and also for his family.
        Voice. According to a veterans group that tracks soldiers
    who are misdiagnosed, there are hundreds of cases across the
    country. Twenty-five-year-old Air Force Staff Sergeant Dean
    Patrick Witt was one of them. Witt's family says his
    appendicitis was repeatedly misdiagnosed. After emergency
    surgery, Witt ended up brain-dead. He later died.
        Military law expert Eugene Fidell.
        You talk to military families who believe they have a
    malpractice case against the military, and you tell them what?
        Mr. Fidell. It is very, very difficult when I get these
    calls. And I get these calls repeatedly over the course of the
    year; I probably get one every 2 months. These people have to
    be made to understand that the law simply doesn't permit them
    to bring a lawsuit. They can bring a lawsuit, but their lawsuit
    will be a complete waste of time.
        Voice. We showed Attorney Fidell a copy of Sergeant
    Rodriguez's medical records, military emails. Sergeant
    Rodriguez's commanding officer, Lieutenant Colonel B.W.
    Barnhill, quotes a military nurse who called Rodriguez's case,
    ``a major screw-up. He should have been immediately seen and
    the wart removed, and we may not have gotten to where we are
    now.''
        Voice. Well, he is in Iraq and the doctor says, ``Have
    someone look at it when you get it back to the states in 5
    months.'' If a member of my family had a comparable condition
    myself and somebody said, ``I am sorry. No one can see you for
    5 months,'' I would fire the doctor. He didn't have that
    option. No, he didn't. I hope Members of Congress are watching
    this show, because the law has got to change----
        [End video clip.]
        Mr. Cohen. You are recognized, Mr. Hinchey.
        Mr. Hinchey. Thank you very much, Chairman Cohen. I very
    much appreciate it.
        As we have just seen and heard, in 1950, nearly 60 years
    ago, the U.S. Supreme Court ruled, in Feres v. United States,
    that military members and their families have no right or
    ability to sue the military for negligent medical care given to
    them during their service. The ruling, which has subsequently
    been referred to as the Feres Doctrine, has left families with
    no recourse for addressing the loss of a loved one due to
    obvious medical malpractice by military doctors or other
    medical personnel.
        Sadly, the Rodriguez family is all too familiar with this
    situation. Sergeant Carmelo Rodriguez was a young, strong
    Marine. He was dedicated to his country and his family. He
    served admirably as a platoon leader in Iraq. After being
    repeatedly misdiagnosed by military doctors, Sergeant
    Rodriguez's cancer spread throughout his body and weakened him
    to the point that he went from being an athlete, strong at 190
    pounds, to a man weighing less than 80 pounds.
        He left behind a loving family, including a 7-year-old son.
    The death of Sergeant Rodriguez is an extraordinary tragedy
    that has left his family with nowhere to turn. As a result of a
    misguided law and subsequent U.S. Supreme Court ruling, the
    Rodriguez family and many other military families in similar
    situations have no way of holding the military responsible for
    the negligence of military medical personnel. And I might say
    that this kind of negligence is less likely to occur if that
    responsibility were put into place.
        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 2009
    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.
        This bill would legislatively reverse the Feres Doctrine;
    it would only apply to military personnel who were injured by
    medical negligence by military medical personnel. Importantly,
    this legislation prohibits any claim arising out of the
    combatant activities of the armed forces during times of armed
    conflict, which means military medical personnel working in
    combat would continue to be exempt.
        In addition, this legislation would require the payment of
    any claims to be reduced by the value of other Federal benefits
    received as a result of the injury. In addition to providing
    the Rodriguez family and other military families with a way to
    hold the military accountable for the wrongful death and
    injuries of loved ones, this bill helps ensure that the
    military, like any other health care institution, takes steps
    to improve care so that no one else ever has to go through what
    the Rodriguez family has endured.
        Sergeant Rodriguez's situation speaks directly to the fact
    that our military, including the military's health care system,
    has been spread far too thin by our ongoing military
    operations. Our military is facing shortfalls of doctors,
    nurses, and other health care staff across the board. It is
    incumbent upon the military to ensure that it has doctors who
    know how to diagnose non-combat injuries and disease, such as
    skin cancer, rather than just having doctors who are trained to
    treat combat wounds.
        In the opinion of the Subcommittee, how could it be
    possible that of all Americans, members of all the military and
    their families are left no recourse in the face of such medical
    negligence? Unfortunately, the Rodriguez family is not in any
    way alone. In California, the wife and two small children of
    Staff Sergeant Dean Witt want to know why the military can't be
    held accountable when he died after routine appendicitis
    surgery.
        Christine Lemp, whose husband, James, died after receiving
    questionable medical care for a stomach virus in Missouri
    deserves to know why there is no recourse to holding the
    military accountable for his death. Eight National Guardsmen
    and their families in the New York City area deserve answers in
    the face of the medical negligence that occurred after their
    exposure to depleted uranium.
        This country and this Congress have affirmed their support
    for the men, women, and families of the United States military,
    and now this lasting injustice must be fixed. This bill isn't
    about members of the military being compensated fairly for
    medical negligence; it is about holding our military
    accountable for its actions and for its responsibility to its
    members, thereby making them more accountable.
        As a veteran and Member of Congress, I believe we must
    match the dedication and sacrifice of our soldiers with the
    adequate health care they deserve and a fair avenue of recourse
    in the case that they do not receive that health care which
    they do deserve. I am hopeful that this Subcommittee will agree
    and work with us to advance this important legislation, and I
    deeply express my gratitude and appreciation to you for the
    attention that you are paying to this issue.
        I thank you very much, Mr. Chairman.
        [The prepared statement of Mr. Hinchey follows:]
           Prepared Statement of the Honorable Maurice D. Hinchey, a
             Representative in Congress from the State of New York

                                   __________
        Mr. Cohen. Thank you, Mr. Hinchey. I appreciate your
    testimony and the video, which is compelling.
        Let me ask you a question. You distinguish medical
    malpractice claims that might be based on injuries in combat.
    Why do you think that is an equitable portion of the law? Why
    should they be distinguished?
        Mr. Hinchey. Well, the situation in combat is very
    difficult and very dangerous, and the medical attention that
    has to be given there has to be immediate, and it has to be in
    ways that are designed to save the life of that person. And it
    is a very dramatic and very, very strong action that has to be
    taken on behalf of those who are injured or wounded, whatever
    the circumstances might be. So I don't think it is the same
    situation.
        What we are talking about here is in the context of
    military personnel who become injured in the same way that
    anyone can become injured: some form of disease, some form of
    other circumstances that are going to impede upon their health
    and may impede upon that health so adversely that it is going
    to result in their death. So it is a very strong, different set
    of circumstances, neither of which are held accountable now.
        What we are saying in this legislation is that there is one
    aspect of these situations where accountability must be ensured
    to make certain that people who have the kind of skin cancer
    that Mr. Rodriguez had, or the kind of appendicitis that other
    military personnel have had received proper and appropriate
    attention. It needs it quickly and it needs it responsibly, and
    it needs to be taken care of because it is a relatively easy
    thing to do. But if an injury is not--if it is not attended to
    quickly and responsibly--it can, as we have seen in these two
    instances and numerous other examples, how it can cause the
    death of the military personnel who are ignored as a result of
    these set of circumstances and this Feres Doctrine.
        Mr. Cohen. So you believe that a medic operating in a
    combat environment, with weapons, rockets possibly coming in,
    weapons fire, et cetera, might have a different basis of making
    a decision than the luxury of his office--his or her office?
        Mr. Hinchey. Well, obviously the people who are in military
    circumstance and who are injured, who are wounded, who suffer
    in some way or another physically, need to get the proper
    attention and they need to get it quickly. But the
    circumstances there you are dealing with are very, very
    difficult, and very, very dangerous for the people who are
    wounded and for the people who are providing the medical care
    and attention.
        So I think it is just a different set of circumstances that
    has to be dealt with in a different way; not as simply as this
    set of circumstances here, which involve the kind of simple
    medical problems and the resulting medical malpractice, which
    causes their increasingly serious injury, and in the cases that
    we have seen, eventually their death.
        Mr. Cohen. What is your response to the argument about
    military discipline?
        Mr. Hinchey. Military discipline?
        Mr. Cohen. Yes, sir.
        Mr. Hinchey. Military discipline, of course, is very
    important. Military discipline--if military discipline would
    occur in the proper way, then the discipline that you would
    expect from professional medical personnel would have been
    applied to the Rodriguez condition, and the medical malpractice
    that we see that resulted in his death would never have
    occurred. So that kind of responsibility is very, very
    important, and that is what we are trying to do, basically, in
    the context of this proposed legislation: make certain that
    people who are engaged in their objects of responsibility in
    the context of their military obligations, whatever they may
    be, including military health care responsibilities, deal with
    them in ways that are responsible, in the best possible way, to
    help and assist the military personnel, to ensure that they are
    getting the right kind of attention.
        Mr. Cohen. Thank you, sir. I have no further questions.
        Mr. Franks, do you have questions, or any Member of the
    panel have questions?
        If there are no questions of----
        Mr. King, I am sorry. Mr. King, from Iowa, is recognized.
        Mr. King. Thank you, Mr. Chairman.
        I want to thank the Congressman Hinchey for his testimony,
    and it is obvious you have done a lot of work on this, and the
    very clear and concise way that you have delivered it tells me
    that. I just have a couple of questions that I am curious
    about, and that is, will service members under your bill, would
    they be able to recover non-economic damages?
        Mr. Hinchey. We are not talking about economic damages; we
    are talking about the responsibility of providing health care
    in the appropriate way, just the same way that civilians who
    receive incompetent heath care have the right, and in many
    cases simply the obligation, to ensure that these
    responsibilities are taken care of in the appropriate way.
        Mr. King. Let me phrase it another way. We commonly refer
    to those as punitive damages, and so non-economic is more a
    term we use inside this Committee, but what about punitive
    damages, and I am thinking of the lady with the $7 million cup
    of coffee spilled in her lap, but that is, of course, the
    extreme of the extreme.
        Mr. Hinchey. Would you say that again? I couldn't hear
    that.
        Mr. King. I am talking about punitive damages, and I would
    use that as a definition outside of the legal term we use here
    called non-economic, but the punishment that might be delivered
    out--one thing is to make a patient whole and recover their
    actual real loss and their loss of income, but it is another to
    send a message by granting a significant award to a claimant,
    and that is the non-economic component, or the punitive. Under
    your bill, would it allow for that kind of award too, that goes
    beyond the loss itself?
        Mr. Hinchey. Well, that would be up to the judicial
    process. It would be up to the court to make those kinds of
    decisions. What we are trying to do here is to say that the
    Feres Doctrine, which prevents military personnel from having
    the ability to go to court to get those kinds of decisions put
    into place based upon a clear, accurate analysis of the set of
    circumstances, that that Feres Doctrine is doing an awful lot
    of harm to military personnel. So that kind of decision is
    going to be made by the courts through the judicial process.
        We want to open the court and open that judicial process
    for these military personnel.
        Mr. King. I take that that there is not, then, a limiting
    provision in the bill at this point, that might limit it to
    actual losses rather than the punitive damages that go beyond
    that. That is a point of information I appreciate.
        And then, as you have studied this and worked on this, have
    you been able to determine that the increase in the medical
    malpractice liability suits in the civilian world, have they
    served to increase the quality of medical care or has there
    been more accountability that is measurable and quantifiable?
        Mr. Hinchey. I think the responsibility for medical
    malpractice has done a significant amount of good work to
    upgrade the quality of health care in a variety of ways,
    including the likelihood that medical personnel--medical
    responsible people--who are not capable of delivering the right
    kind of health care will soon find that they would have to find
    something else to do. They wouldn't be doctors any longer. They
    wouldn't be other forms of health care personnel any longer. So
    I think that that is one of the things that is very important
    here: We want to have good, competent, highly-qualified
    personnel dealing with the normal set of circumstances to which
    military personnel might be involved with.
        Mr. King. Thank you. And then, Mr. Hinchey, I thank you.
    And to restate my question maybe more precisely would be: Is
    there quantifiable data out there with studies that have been
    done that would support the judgment that you have delivered to
    the Committee here, that would support the argument that we
    have higher quality health care, adequate access to health
    care, and more accountability because of the litigation on
    malpractice?
        Mr. Hinchey. Oh, I think that is very clear, yes. There is
    an awful lot of history of this situation, and I think that it
    is very clear in just a routine examination of that history, it
    is quite obvious that accountability upgrades quality.
        Mr. King. Let me offer an alternative scenario, and I don't
    have the data on either side, so this is our conversation here.
    And that is, I am thinking about what goes on in the mind of
    someone who wants to enter the medical profession, and let us
    say often it is two or three generations of doctors, and if
    they are seeing high--and this is the civilian world, not
    speaking of this case at all--but often, they will look at the
    cost of the medical malpractice insurance, the litigation that
    is there--many doctors are sued--and so, are there fewer
    doctors because of the litigation in the civilian world, and is
    that part of the studies that you might be able to produce for
    this Committee? And then, would that translate itself into
    fewer doctors in the military world as well? And I take your
    point about doctors that have skills within the area where they
    need to be; not just battlefield doctors, but doctors that can
    diagnose melanoma.
        Mr. Hinchey. I don't think there are fewer doctors, no. I
    think that that has not had an impact on the number of doctors
    that are available. I think it has an impact, however, on the
    quality of medical personnel. And I think it has an impact on
    the focus of attention of medical personnel, just as it does
    and should for any particular profession or any particular
    activity. Whatever we are doing----
        Mr. King. I think we are getting----
        Mr. Hinchey. Whatever we are doing, we should be doing it
    as well as we can.
        Mr. King. I see that we have bypassed the yellow light and
    gone to the red one appropriately, and I would thank the
    gentleman and yield back the balance of my time.
        Mr. Cohen. Thank you, sir. Are there other Members who
    would like to ask the representative a question?
        If not, I thank Mr. Hinchey for his testimony, and he may
    be excused.
        Mr. Hinchey. Chairman Cohen, I thank you.
        Mr. Cohen. And I thank you for your service to our country
    in the military as well as here in Congress.
        Will the second panel now be seated?
        Our first witness is Stephen Saltzburg, who is testifying
    on behalf of the American Bar Association. Professor Saltzburg
    joined the George Washington School of Law in 1990. Before that
    he taught at the University of Virginia School of Law and was
    named the first incumbent of the class of 1962 endowed chair.
    In 1996, Professor Saltzburg founded and directed the master's
    program of litigation and dispute resolution at George
    Washington Law School.
        In 2004 he was named University Professor, the highest
    title a university can confer upon a faculty member. Professor
    Saltzburg has served as a special master in two class action
    cases in the D.C. District Court and continues to serve as the
    mediator for the D.C. Court of Appeals.
        He has mediated on a variety of disputes involving public
    agencies and private litigants, served as a special sole
    arbitrator, panel chair, and panel member of domestic
    arbitrations, and served as an arbitrator for the International
    Chamber of Commerce. Professor Saltzburg is the author of
    numerous books and articles on evidence, procedure, and
    litigation.
        I now recognize Mr. Saltzburg for his testimony.
        Turn yourself on.

       TESTIMONY OF STEPHEN A. SALTZBURG, PROFESSOR, THE GEORGE
            WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, DC

        Mr. Saltzburg. Sorry. Mr. Chairman, Ranking Member Franks,
    Members of the Committee, it is an honor for me to be here
    today, and it is a special honor to be part of this panel. Gene
    Fidell and I have served together for many years on the
    National Institute of Military Justice, which we founded in
    1991. To be with the sister of Carmelo Rodriguez is a
    particular honor, and General Altenburg is someone I have
    admired for many years.
        You have my written statement, and I don't intend to read
    any portion of it. I would much rather answer questions if you
    have them. But there are a few points I did want to make, and
    they are these: that the American Bar Association has long
    urged Congress to amend Feres, starting with medical
    malpractice. And if Congress doesn't do it, it will never
    change, because as the Subcommittee I am sure is aware, the
    basic Supreme Court approach to statutes is, once it interprets
    a statute, if it gets it wrong it expects Congress to say so
    and to amend the statute.
        Unlike a constitutional ruling, where Congress can't change
    it except by proposing a constitutional amendment, the Court
    will often reverse itself in the nonconstitutional case. This
    won't happen with Feres, and that is why we have had this
    doctrine for going on--almost 60 years. Now, a question was
    asked during the first panel, what about the effect on military
    discipline? And there are reasons why, I think, people could
    debate--reasonable people--could debate the ABA broader
    proposal that would say, ``Let us do away with Feres completely
    and apply the Federal Tort Claims Act exception, and just use
    the exceptions and just get rid of this doctrine.''
        But when it comes to medical malpractice cases, no one
    seriously makes an argument that military discipline is somehow
    going to be adversely affected if Feres is modified by the
    Congress so that military members can bring the same kind of
    malpractice claims as ordinary civilians can. The kinds of
    military treatment and military interventions that are the
    subject of the bill simply are far removed from battlefield
    decisions, command decisions, the kind of decisions that
    General Altenburg was called upon to make throughout his
    career.
        There are questions about--Justice Scalia raised these--
    there are questions about whether or not it is a good thing to
    have state laws, which get incorporated in the Federal Tort
    Claims Act, providing different standards for military members.
    But as Justice Scalia said, it is a lot better to have non-
    uniform relief that is available than to have relief uniformly
    unavailable.
        I think that, as the film that we all saw just a little
    while ago points out, that there is a crying need for military
    members simply to be able to be compensated when their health
    or their life is taken, ruined, as a result of medical
    malpractice. The American Bar Association House of Delegates
    supported a broader resolution, but has long supported the
    reform of Feres to deal with medical malpractice.
        If the Subcommittee has any questions, I would be more than
    pleased to answer them.
        [The prepared statement of Mr. Saltzburg follows:]
                   Prepared Statement of Stephen A. Saltzburg

                                   __________
        Mr. Cohen. Thank you, Mr. Saltzburg. We probably will have
    questions, but we will do that after we complete the panel
    testimony.
        Our second witness is Ivette Rodriguez. Ms. Rodriguez is a
    stay-at-home mother from Wurtsboro, New York. Her brother,
    Sergeant Carmelo Rodriguez, was a decorated Marine and platoon
    leader who died of a misdiagnosed skin cancer, obviously the
    subject of the video we saw.
        Ms. Rodriguez, thank you so much for coming and sharing
    your story with us today.

              TESTIMONY OF IVETTE RODRIGUEZ, WURTSBORO, NY

        Ms. Rodriguez. Thank you. Chairman Cohen, Representative
    Franks, and distinguished Members of the Committee, thank you
    for the opportunity to appear before you today to discuss my
    brother's service to this country, the events that led to his
    death, and the bill Congressman Hinchey introduced, which is
    named after him, the Carmelo Rodriguez Military Medical
    Accountability Act of 2009.
        I am not someone with a big, fancy job, or political
    connections. I am just a loving sister and a mother of two,
    soon to be three, who lost her brother to a horrific case of
    medical negligence. I speak not just for my whole family, who
    miss my brother dearly, including his young son, Carmelo
    Rodriguez, IV, but I speak for the countless other military
    families who have been forced to confront similar situations.
        On November 16, 2007, when Carmelo passed away, I lost not
    only my brother but my best friend and an American hero.
    Carmelo was a decorated Marine and a platoon leader who proudly
    served his country in Iraq. Before, during, and after my
    brother's service in Iraq, his cancer was repeatedly and
    extraordinarily misdiagnosed as a wart or a birthmark.
        In 1997, when Carmelo enrolled in the Marines, a physical
    performed by U.S. military staff concluded that Carmelo
    Rodriquez had melanoma present on his right buttocks. However,
    no action was taken.
        In March of 2000, Carmelo marked ``no'' on a medical
    history report question about cancer; he was not aware of his
    melanoma. During March of 2005, while Carmelo was deployed in
    Iraq, he saw another military doctor for a growth or sore on
    his buttock. He was told to keep it clean and visit the doctor
    again when he got back to the United States, which would be 5
    months later.
        In November of 2005, Carmelo saw that same doctor back in
    the United States and was directed to dermatology to have the
    so-called birthmark removed for cosmetic purposes. The next
    year and several months later, in April of 2006, while several
    referrals were lost in the system, Carmelo's so-called
    birthmark was bleeding and pussing all the time.
        Finally, out of frustration and concern for his own health,
    he took action and made an appointment to see a dermatologist
    without a referral. A week after his next appointment, he was
    told he had stage three malignant melanoma.
        Carmelo had three surgeries, received radiation and
    chemotherapy, but it was too late. The cancer had spread to his
    lymph nodes, his liver, kidney, stomach, and throughout his
    body.
        The doctors told him that if it had been caught earlier, it
    would have made a big difference. It probably would have saved
    his life.
        My brother was a young, strong man. His body was reduced
    from 190 pounds to under 80 pounds. At the age of 29, he died
    of skin cancer that should have been caught much, much earlier
    by the military he so ably served and was counting on.
        Carmelo wanted his story to be heard even if his life
    couldn't be saved. He wanted to ensure that what happened to
    him would not happen to another servecemember. On November 16,
    2007, with CBS news reporter Byron Pitts at our family's home,
    my brother passed away.
        When he enlisted in the Marine Corps he swore an oath to
    live his life according to military standard, to follow orders
    without question. He did this willingly and without
    reservation. He proudly took this oath assuming that the
    military would care for his wellbeing. Those who were tasked by
    the military to provide that care were expected to provide the
    basic standard care.
        When the medical personnel failed to provide the basic care
    that would have saved my brother, they hid behind the military.
    Now that the military failed to live up to their oath, they hid
    behind a nearly 60-year-old precedent called the Feres
    Doctrine.
        Sadly, my family's story is shared by many others. My
    question for the military is: Why, after such a critical
    failure in health care, did it take the military 16 months to
    finish this report, which I just got last night, on the
    investigation of the circumstances that led to my brother's
    death? I received this report late last night, the night before
    this Committee's hearing, which was not enough time to fully
    read it.
        Why would this not have been done sooner to perhaps save
    the lives of others who currently may be misdiagnosed right
    now? My question for Congress is: How could it be possible that
    of all Americans, members of the military and their families
    are left no recourse in the case of such medical negligence?
        I am grateful to Congressman Hinchey for his support. He
    has never wavered in his commitment to my brother, our family,
    and all service men and women. What service men and women and
    their families want and deserve is equal protection under the
    law.
        Thank you.
        [The prepared statement of Ms. Rodriguez follows:]
                     Prepared Statement of Ivette Rodriguez

                                   __________
        Mr. Cohen. Thank you, Ms. Rodriguez. I appreciate your
    testimony.
        Our third witness is Mr. John Altenburg--Major John
    Altenburg, excuse me. Major General, excuse me for the third
    time.
        Major General Altenburg is a counsel at Greenberg Traurig,
    otherwise known as Diane Blagman's firm, and focuses his
    practice on contract litigation and international law. The
    scope of his practice includes corporate and governmental
    representation, both domestic and international, including
    multilateral development bank and Federal agency debarment
    proceedings.
        General Altenburg served 28 years as a lawyer in the Army,
    where he represented the Army before Congress, numerous state
    and local governments, and in court in the United States and
    Germany. He advised, counseled, and negotiated all levels
    within the Army, the Department of Defense, the Department of
    Justice, frequently on matters of great interest to Members of
    Congress and the national media.
        Major General Altenburg, you are recognized.

       TESTIMONY OF JOHN D. ALTENBURG, JR., ESQ., MAJOR GENERAL
         (RETIRED), UNITED STATES ARMY, GREENBERG TRAURIG, LLP

        General Altenburg. Chairman Cohen, Representative Franks,
    other distinguished representatives, I thank you for inviting
    me to appear today. I appear solely by your invitation to
    provide my personal views regarding House of Representatives
    bill 1478, the Carmelo Rodriguez Military Medical
    Accountability Act of 2009.
        I have submitted a written statement and would like to
    supplement that with just a few comments. My knowledge of this
    tragic case is solely through media reports. I regret deeply
    that our Nation has lost such a talented and committed military
    man. Besides his outstanding performance as a Marine leader, I
    think he was the kind of man who was loved by all who met him.
    From what I can tell, his human qualities actually exceeded his
    extraordinary military values.
        I convey my deepest sympathy and condolences to the
    Rodriguez family. No Marine, sailor, soldier, or airman should
    ever go through the medical tragedy suffered by Staff Sergeant
    Rodriguez and his family, but I believe changing the law to
    permit more lawsuits is not a way to increase the
    accountability of military medicine. Further, I believe
    changing the law to permit more lawsuits is not in the best
    interest of our service members and the families who support
    them.
        The government, and especially the military, has programs
    and procedures in place to enforce medical standards and to
    improve military medical care--programs such as peer reviews,
    credentialing actions, quality assurance programs, reports to
    state licensing agencies, command investigations including I.G.
    inquiries and UCMJ actions. Lawsuits are contentious, and they
    take years to conclude, but lawsuits are not designed to
    prevent medical errors.
        The military's internal systems and programs act more
    quickly. Congress, in fact, has oversight of these programs and
    systems and ensures that quality assurance and other programs
    work effectively.
        The proposed bill creates a narrow category of persons in
    the military who will be favored over all others injured in the
    line of duty. This bill's unfairness is starkly apparent when
    you consider the following example: two Marines, same unit,
    same hometown, deploy to Afghanistan leaving their families
    behind.
        During deployment, one Marine is medically evacuated to a
    hospital in Germany for severe stomach pains. They are properly
    diagnosed as a burst appendix, but a military doctor breaches
    the standard of care by failing to administer antibiotics
    properly. The Marine develops an infection and he dies. His
    family is outraged, and they are able to bring--under this
    bill, if it passes--a wrongful death action against the
    government to recover lost economic compensation and mental and
    physical pain and suffering.
        About the same time, though, tragic news arrives that the
    other Marine family in the same town has lost their loved one
    following an engagement in battle. A command investigation
    concludes that this Marine was killed, accidentally, by a
    fellow squad member in a fire fight. This Marine's death is a
    result of negligence that may have been prevented.
        Like their neighbors who lost the Marine to medical
    negligence, this Marine family suffers damages. The family is
    grief-stricken; they are angered. They want to sue and hold the
    military accountable, but they cannot sue because their loved
    one died in combat.
        Unlike the first family, this family is told they are
    limited to the benefits provided by the Navy and the VA even
    though their loved one died on the battlefield and not in a
    hospital bed. Both Marines died in service, in line of duty,
    and both families suffer similar monetary hardships. But
    because of the proposed bill, one family could sue and the
    other can not.
        Whether the injury or death was caused by medical error,
    driver error, mechanic error, or otherwise, service members and
    their families suffer real emotional, physical, and monetary
    damage. Our brave service members and their families should not
    be forced to the courtrooms for needed benefits. If our
    compensation benefits are inadequate, then less increase the
    benefits to service members and their families, including
    consideration of pain and suffering.
        Also, consider how this bill could adversely affect
    military decision-making. This bill proposes to permit active
    duty military personnel to sue for any, ``medical care and
    other purposes.'' Virtually any military decision or action,
    based on a medical assessment, could be challenged as causing
    personal injury: flight status boards, medical evaluation
    boards, annual physicals, administrative separation
    proceedings, even medical determinations affecting medical
    profiles, duty limitations, airborne operations, special
    operations units, schools, and all manner of everyday military
    decision-making may be affected.
        Resources would be diverted from treatment of troops to
    preparing expert reports, submitting to interviews and
    depositions, and attending judicial and claims proceedings.
    Creating a special right to sue is not what will improve
    medical care and benefits. A service man won't be forced to sue
    his country if the benefits are appropriate in the first place.
    A grateful Nation should take care of all service members and
    all their families fairly, without subjecting them to
    litigation and the associated turmoil.
        Congress can act now to improve benefits for all those
    injured and killed, regardless of the cause. Such congressional
    action will be a most fitting legacy of Staff Sergeant Carmelo
    Rodriguez.
        Thank you for permitting me to print my views. I stand
    ready to address your questions.
        [The prepared statement of General Altenburg follows:]
                  Prepared Statement of John D. Altenburg, Jr.

                                   __________
        Mr. Cohen. Thank you, General Altenburg. I appreciate your
    testimony.
        Our fourth witness is Eugene R. Fidell?
        Mr. Fidell. Fidell.
        Mr. Cohen [continuing]. Fidell. Professor Fidell began
    teaching at Yale in 1993 as a visiting lecturer in law and was
    appointed the Florence Rogatz visiting lecturer in law in 2008,
    president of the National Institute of Military Justice and the
    counsel at Feldsman Tucker Leifer Fidell, in Washington, DC
        Professor Fidell is a coauthor of ``Military Justice: Cases
    and Materials.'' A fellow of the American Bar Foundation, a
    life member of the American Law Institute, and a member of the
    ABA Task Force on Treatment of Enemy Combatants and the board
    of directors of the International Society of Military Law and
    the Law of War. He has also taught at Harvard Law School and
    the Washington College of Law at American University.
        Mr. Fidell, you are recognized. We appreciate your
    testimony.

    TESTIMONY OF EUGENE R. FIDELL, ESQ., YALE LAW SCHOOL, NATIONAL
             INSTITUTE OF MILITARY JUSTICE, WASHINGTON, DC

        Mr. Fidell. Thank you, Mr. Chairman, Mr. Ranking Member.
        I would like to begin with a word about the military
    medical providers. I think we can all be very proud of the
    overall quality of medical care that our military personnel
    receive. Many years ago I was a beneficiary of that medical
    care for the 3 years, 7 months, and 8 days that I served on
    active duty.
        I still vividly recall the dedicated providers who attended
    to my needs, which happily were modest. They were wonderful,
    caring human beings, excellent clinicians.
        The current generation of military medical personnel also
    deserves thanks, particularly given the stresses imposed by the
    heartbreaking cases they have had to deal with as a result of
    military operations in Iran--in Iraq and Afghanistan.
    Nonetheless, no system for delivering health care is perfect,
    and excellent as it is, the military health care system is not
    an exception.
        I agree emphatically with my friend, General Altenburg,
    that there are other modalities, mechanisms for ensuring the
    highest level of medical attention in the military. He has
    identified them properly. They have to do with peer review,
    credentialing issues, even disciplinary action under the UCMJ,
    on rare occasion.
        Personally, I don't think that is why we are here. I think,
    although, you know, its impact on the quality of medical care
    is something that would be nice, what we are really talking
    about is compensation to people who have been injured.
        To clarify a question that came up in the colloquy between
    Representative King and Representative Hinchey, this is not
    about punitive damages, as I understand it. Punitive damages
    are not provided for under the Federal Tort Claims Act; nobody
    expects that. So that should not play a role in the
    Subcommittee's or the full Committee's consideration of these
    issues.
        What we are talking about, I believe, is pain and suffering
    types of damages, the hardcore civil damages in our society. I
    think it is quite critical that, as the Committee catches its
    breath and sorts all this out, it bears fully in mind that we
    are in an all-volunteer environment, and have been for several
    decades now.
        I think legislators as well as people with responsibility
    in the executive branch have to take account of the potential
    impact of the legal environment on things like recruitment and
    retention. And we must make sure that people who come into the
    service, or are candidates for coming into the service, or are
    already in the service, have the assurance that they will be
    treated fairly.
        My view is, that in the year 2009, expectations in our
    society are that medical malpractice, the failure to observe
    the applicable standard of care ordinarily is compensated
    through at least pain and suffering type compensation. I
    haven't seen a proposal that would expand the normal benefits
    system established either for the Department of Veterans'
    Affairs, or for the active duty force through the military
    services that would in any way approach the kinds of pain and
    suffering compensation that all of us in this room would be
    entitled to if, God forbid, we were the victim of medical
    malpractice.
        I think that is what this is about. I do think it is
    something where Congress, after so many years, has a
    responsibility to grasp the nettle and, in my opinion, do the
    right thing, which is to pass either this measure or something
    very much like it. Is it perfect? No. Does it resolve all the
    inequities? No.
        We all strive for fairness, and being only human we will
    never achieve perfect fairness; nobody disagrees with that. But
    this is a step forward, and I hope that it will be favorably
    considered.
        [The prepared statement of Mr. Fidell follows:]
                     Prepared Statement of Eugene R. Fidell

                                   __________
        Mr. Cohen. Thank you, Mr. Fidell.
        We have now concluded our witnesses, and at this time we
    will have opportunities to ask questions of any member of the
    panel. Again, we are limited to 5 minutes, and I will begin.
        General Altenburg, you mentioned that you thought that
    there are distinctions in injuries in the military, that a
    person who might lose his leg, or her leg, in--or die in this
    military hospital, as you mentioned, in Germany, for some
    reason--stomach, I think, was your example--that they would get
    compensation, yet somebody who was killed through some
    negligence in the field would not. Is that true, I recall that
    correctly?
        General Altenburg. Well, what I said is, under the proposed
    legislation, the person who is injured by medical malpractice
    in the hospital in Germany could sue for compensation, and the
    soldier who died because of the negligence of a fellow Marine
    on the battlefield could not sue. Under the current law, both
    would be compensated and both families would be compensated,
    but they wouldn't have the right to sue if they were killed on
    the battlefield.
        Under the proposed legislation, what changes is, the person
    who dies in the hospital due to medical malpractice, would be
    able--or alleged medical malpractice--would be able to sue.
    That is what is different.
        Mr. Cohen. Right. Do you see a distinction, though, in the
    circumstances upon which the physician who was operating in a
    similar capacity as a civilian doc would if he was operating on
    you or me or anybody else in a hospital and be subject to tort
    liability, and a soldier who was operating under combat? Aren't
    there pretty clear distinctions in the judgment that might be
    rendered because of the extraneous existing circumstances?
        General Altenburg. Mr. Chairman, are we talking about the
    medical doctor in the military in Germany or in a combat zone?
        Mr. Cohen. The medical doctor in Germany, as distinguished
    from either a Corpsman in the combat zone or, in your
    circumstance, I think it was just a soldier who did something--
    I think in your testimony he got shot or something.
        General Altenburg. In my experience, a doctor--a major in
    the Army operating on a service man in Landstuhl Hospital
    Medical Center in Germany is under very similar conditions as a
    doctor in any hospital in the United States.
        Mr. Cohen. Okay. So why should they be treated differently
    for medical malpractice? Why should the--not they, but the
    victim be treated differently? Because they are in the
    military?
        General Altenburg. In the military they can't sue.
        Mr. Cohen. Right. I know that. Why do you think that is
    correct?
        General Altenburg. Because they are compensated. If I go to
    a--if I am a civilian and I go to the hospital and a doctor
    malpractices on me, if I don't sue them nothing happens; I
    don't get anything. In the military, we have set up what some
    would argue is a fairly elaborate compensation system, and
    many, myself included, would argue it should be even better in
    the 21st century, but the fact is there is a compensation
    package that includes payments for children until they are 18,
    or 23 if they go to college, a $100,000 death benefit.
        There are numerous pieces to this package that the Congress
    has developed over the years to justify not allowing them to
    sue and to preclude the lawsuits. It has been compared to
    workman's compensation. And something that I have not heard
    anybody say in the discussion about Feres is that in those few
    places in the civilian sector where an employer provides
    medical care--not contracted out, but provides medical care,
    and I personally worked in a factory in Detroit where that was
    the case in the 1960's; there was a hospital at the River Rouge
    Plant, and if I was treated there and I was malpracticed on, I
    couldn't sue. I had to use workman's compensation. It never
    happened, thankfully, but even in the civilian sector, if your
    medical care is provided by the employer, you have workman's
    compensation; you cannot sue the doctor for malpractice. That
    is what we have done to our--for ourselves in the military.
        Mr. Cohen. Mr. Fidell, do you see a distinction there, and
    is the damages that a soldier would get now different from the
    damages he could--or she could--recover under this bill?
        Mr. Fidell. Absolutely. I think there is a serious
    distinction. And by the way, one peculiarity that the Committee
    might want to be aware of is, the military retirement programs,
    for example, for people who are injured--benefits administered
    by the military are a function of your pay grade, so that a
    general, for example, who is the victim of malpractice and is
    injured--not killed, but injured--as a result of malpractice is
    going to achieve a higher form of compensation than the lance
    corporal. That is not a compensation scheme; it is something
    else. And that, I think, would rub many people the wrong way if
    they ever focused on it.
        Mr. Cohen. Thank you, sir.
        Ranking Member Franks?
        Mr. Franks. Thank you, Mr. Chairman. And Mr. Chairman, I
    was, as all of us, very, very moved by the video and by Ms.
    Rodriguez's testimony.
        You know, there is a verse that says, ``Greater love hath
    no man than this, that a man lay down his life for his
    friend.'' And that is certainly what your brother did, and
    there is no more noble thing that a human being can do in this
    life than to try to put themselves in harm's way for the sake
    of others and to promote the cause of human dignity and
    freedom. And I just don't know how to express that enough, but
    I salute your brother with all of my heart.
        One of the challenges about having a military mechanism is
    that, you know, it is unique in just about every significant
    measure. Sometimes a general is compelled to deliberately put
    his soldiers in harm's way for the sake of, perhaps, protecting
    a larger number of soldiers or protecting the country that they
    defend. And, you know, it is a unique situation.
        We don't have to do that in the corporate world; we don't
    have to order some of our workers to go out and face fire, and
    knowing that many of them will definitely be killed. That is an
    extremely difficult situation, and there is no way, I think,
    that any of us have the wisdom to be able to extricate every
    significant issue that arises in a situation like that.
        But I found myself identifying tremendously with General
    Altenburg's remarks because he seemed, being a general, having
    been in that situation, seems to understand some of the unique
    circumstances that apply here. And I do think that the example
    of a soldier in a battlefield situation that maybe died because
    of negligence on the part of his commanding officers--and I
    think that could be a circumstance that would occur--or even
    medical personnel, there is an issue there that I think is a
    conundrum that is very compelling in this particular
    legislation.
        And as a member of the Armed Services Committee, I believe
    that what is really wrong here with this system is that the
    compensation mechanism is out of whack. And I think that when
    someone like your brother, Ms. Rodriguez, does what they have
    done and faces that kind of what was negligence, that we should
    have written in these compensation schedules something to deal
    with that situation. And I would be certainly favorable in the
    Armed Services Committee to supporting to such a legislation.
        But I am convinced that to--I am convinced that the tort
    situation that we face in our civilian life right now has not
    garnered us better medical care; it has only created more
    confusion, and I think, actually, perhaps in some cases,
    reduced the quality of medical care. That is an opinion, and it
    is not in evidence. But I hope that we can address this
    situation with our compensation package, and then I hope that
    somehow that this legislation, if nothing else, leads us to a
    greater discussion along those lines.
        So with that, I think there are two issues here. One is the
    accountability of those who made the error, and of course the
    compensation that is mentioned.
        So, General, let me ask you, are there mechanisms now that
    are currently--within the military system--that hold physicians
    that commit medical malpractice accountable? Are there systems
    there to address that? And if you would consider any ways to
    improve that, what would they be?
        General Altenburg. Yes, sir. I will be happy to answer that
    question, although I am 7 years out of the military. I will do
    my best to recount what I recall from that time. Also, before
    someone counters, you know, any experience that my benefit me
    at this table or because I attained the rank of major
    general,--I spent 5 years as an enlisted soldier, so I have
    that perspective of military medicine and military service,
    also, and I think, perhaps, that informs me in my opinions in
    this regard as much as anything.
        There are extensive--and I mention them all in my oral
    statement--review mechanisms and programs to ensure that
    military medicine is held accountable: reporting to state
    agencies, and the like. Ironically, because the Congress has
    oversight and requires us to report on any alleged medical
    malpractice in every military hospital, we know more about
    medical malpractice in our hospitals than we, as a country,
    know about medical malpractice in any other hospital, because
    most hospitals aren't required to produce that information. But
    we are, in the military, because of congressional oversight. I
    am implying that as a good thing, not a bad thing.
        In addition, there are specific provisions of Title 10--if
    I were a professor I would cite them, but I am not, and I don't
    remember them--but there are specific sections of Title 10 that
    require some of these programs. And over the years, especially
    since I have been retired, I am aware, they have become even
    more stringent and more aggressive in their pursuit of ensuring
    that doctors are held accountable. Military doctors who commit
    malpractice, you know, are reported to the state agencies; they
    are in the same national database that tracks all medical
    malpractice.
        So in spite of this, and in spite of medical malpractice
    suits, there is malpractice every day in hospitals around the
    world. It happens. But I would tell you that the accountability
    procedures in the military are rigorous, and the Congress has
    direct access to those programs.
        Mr. Franks. Mr. Chairman, thank you very much. Might I just
    say, Mr. Chairman, that I do believe that the military and the
    American people have the responsibility to bind up the wounds
    of those who have borne the heat of the battle, and I thank the
    Rodriguez family for bearing the heat of the battle for human
    freedom.
        Mr. Cohen. Thank you, sir.
        Mr. Scott, from Virginia, is recognized, the distinguished
    Chairman of the Subcommittee on Crime, Terrorism, and Homeland
    Security.
        Mr. Scott. Thank you. Thank you very much, Mr. Chairman.
    While we are holding the physicians accountable, our focus in
    this hearing is really on the victim. We have heard a
    suggestion that this may discourage physicians from serving in
    the military. Is there any expectation that the physician would
    actually pay the cost of malpractice under the Tort Claims Act,
    Professor Fidell?
        Mr. Fidell. The government winds up footing the bill.
        Mr. Scott. Is any physician--a Federal employee--when they
    are sued under these circumstances by civilians, not people in
    the military, barred under this Feres Act--Feres Doctrine--have
    physicians actually had to pay?
        Mr. Fidell. No. I believe what happens, Congressman, is the
    Westfall Act, perhaps Steve Saltzburg could correct me on that,
    but I believe the Westfall Act basically substitutes the
    Federal Government for the individual employee or official
    whose conduct is at issue.
        Mr. Scott. So we don't have to worry about the bill having
    an effect on physicians. Let me ask another question. I think,
    Mr. Fidell, you indicated that punitive damages are not allowed
    under the Federal Tort Claims Act. Is anybody----
        Mr. Fidell. That is my understanding.
        Mr. Scott. Does anybody--everybody agree with that? The
    record reflects that that----
        Mr. Saltzburg. I am not certain, Congressman, that that is
    true. Generally, state law provides the substantive law and the
    law on damages, and state laws that restrict damages restrict
    recoveries, I believe, under the Claims Act, as well, so that
    it is conceivable to me that in a given suit punitive damages
    could be available. I am not certain of that, either.
        Mr. Scott. Okay. Well, we will check that. It is my
    understanding that the Federal Tort Claims Act specifically
    excluded punitive damages.
        Mr. Altenburg, you indicated fairness to the victims. Could
    you explain why a soldier who was a victim of malpractice
    should have less rights than a person convicted of crime,
    serving in prison, in terms of rights to compensation? The
    criminal would have--so long as this doctrine continues, the
    criminal would have more right to compensation than the
    soldier. Is that right?
        General Altenburg. Well, the criminal has the right to sue,
    and the soldier does not.
        Mr. Scott. Okay.
        General Altenburg. The difference, though, is that the
    soldier has a compensation package, which we could make even
    better, and we do that so that they won't----
        Mr. Scott. But the soldier will get the compensation
    whether he is a victim of malpractice or not.
        General Altenburg. He is compensated for any negligent act
    that harms him, whether it is the result of malpractice or some
    other type of negligence.
        Mr. Scott. You mean, he is entitled to medical treatment?
        General Altenburg. Correct.
        Mr. Scott. Okay. He does not get any compensation under the
    normal view of compensation in a negligence case for being the
    victim of malpractice?
        General Altenburg. I think that is probably true, but it
    is----
        Mr. Scott. Whereas a prisoner would be able to receive
    compensation as a result of being a victim of malpractice.
        General Altenburg. A prisoner would be able to sue for
    compensation of some type.
        Mr. Scott. Okay.
        Mr. Fidell. If I may, your colloquy raises a point that
    perhaps I could inject. There has been a lot of discussion
    about suing, heavy lawyering, and so forth. That is a separate
    conversation. However, I think it is quite important to bear in
    mind that the Federal Tort Claims Act has a mandatory
    administrative step that you have to exhaust before you can
    actually go into court. And most Federal Tort Claims Act claims
    are resolved administratively.
        Just so that we all have the same sheet music in front of
    us on that, the mere fact that you have a claim under the
    Federal Tort Claims Act does not mean that you and the
    government are condemned to appear before a Federal judge; in
    fact, you are going to be engaged for some period of time in a
    colloquy with the agency to try to resolve it amicably. And
    that is, in fact, what happens in, I believe, the vast majority
    of FTCA claims.
        Mr. Scott. Now, the law that you would recover under would
    be the state law, if it is--would it matter which state the
    prison was in, for example? One prisoner might get recovery
    under some circumstances and not in another?
        Mr. Fidell. The FTCA is imperfect, and it does--as a
    reflection of our Federal system--local law.
        Mr. Scott. Now is there any reason why this--bill ought to
    be limited to medical malpractice--why a soldier off duty,
    sitting at a stoplight, gets rear-ended, why they couldn't get
    compensation like every other automobile accident victim?
        Mr. Saltzburg. Perhaps I could address that, Congressman.
    The American Bar Association's position is that Feres ought to
    be rejected by Congress, that--Congress never ever adopted
    Feres. This is a judicial creation. In most other instances,
    when the courts read a statute and put something in that
    Congress never included, Congress looks at it and isn't very
    happy about it. But for 60 years, Congress has sat back and let
    the courts invent this doctrine and develop it.
        The testimony that I provided you indicates that there are
    a lot of people who have looked at the Federal Tort Claims Act
    and the exceptions that are there and said if you just applied
    the exceptions, you wouldn't be interfering with military
    discipline or military decisions that are being made, but you
    would provide fundamental fairness to military personnel in a
    variety of settings, including all of those you have mentioned.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Cohen. Thank you, Mr. Scott.
        Mr. Jordan, the gentleman from Ohio, is recognized--member
    of the great class of 2006.
        Mr. Jordan. Thank you, Mr. Chairman.
        Ms. Rodriguez, let me, too, thank you and your family for
    being here. And we certainly feel terrible about the loss you
    have had to suffer, and we appreciate your brother's service.
    While it is not the same as losing a family member, before
    politics I was assistant wrestling coach at Ohio State
    University, and we had a wonderful young man who wrestled for
    us, and unfortunately lost his--Major Ray Mendoza lost his life
    after doing three tours in Iraq. So we, again, appreciate the
    sacrifice of your brother.
        I want to go to this distinction that Congressman Hinchey
    is talking about where the difference in--kind of the example
    that the general brought up in his testimony, where the one
    individual is medical malpractice in the hospital versus the
    one from friendly fire. And I am always--Congressman Hinchey is
    confident that you can maintain this distinction, but I am
    always nervous about the slippery slope in a variety of areas.
    When politicians start down one road, it is not too long before
    we are moving to something else, and it is interesting--before
    this Committee I just came from going through a Stryker MEV,
    medical evacuation vehicle, they have out on the street here in
    front of Rayburn.
        And General, your thoughts on if we, in fact, pass this
    legislation, is it too far--is it not too big a step before the
    person providing treatment from a combat wound in that MEV, as
    they are moving that soldier from the combat area back to a
    safer place, if they do something wrong, if they don't do
    exactly what needs to happen in that vehicle as they are
    treating that soldier, do you think that we can--we would ever
    see the day where that individual would, you know, be liable
    for some type of negligent treatment of the soldier resulting
    from, you know, treating them from a combat injury? Not
    friendly fire, per se, but, you know, legitimate--another
    combat injury.
        Your thoughts on that, because it always concerns me how we
    start down one road which seems to make sense, seems to be
    limited, seems to me we can maintain that distinction, but the
    unintended consequences of the slippery slope.
        General Altenburg. I think that is remotely possible. I
    don't think it is quite the slippery slope that other issues
    could be. I think that Congressman Hinchey has been careful to
    exclude combat, and seems sincere about wanting to make sure
    that that is not a part of this.
        I think a potential that is latent in the proposed
    legislation is, how do you define combatant activities? What
    does that mean? I mean, Sergeant Rodriguez was diagnosed or
    misdiagnosed in a combat theater. Is that enough? It clearly
    wasn't a combat wound. So you will get into all kinds of things
    like that----
        Mr. Jordan. That is sort of my point. The injury takes
    place in combat, but let us say they are back at the base
    hospital and, you know, the standard of care is such that it
    was definitely medical malpractice when they were trying to fix
    the wound and help this and treat this soldier. Do you think we
    run afoul there? Do you think there is a problem?
        General Altenburg. Well, obviously I support the Feres
    Doctrine because I think not to have it would truly create
    serious issues for the military in its day-in-and-day-out
    operations, and I don't use the term ``discipline'' and
    ``military order and discipline'' as much as I think in terms
    of the mundane, really, day-in-and-day-out decisions that
    military leaders at all ranks, from sergeant first class all
    the way up to brigade commanders make and hospital commanders
    make in making this process. And I am concerned that ultimately
    combat readiness gets affected because of the types of
    decisions that are made.
        We take for granted, because we don't know as much about
    what it is like on a day-in-and-day-out basis, and again, in my
    oral statement, which will be transcribed, I refer to all these
    different aspects of day-in-and-day-out military life that
    could be affected by lawyers who could allege medical
    malpractice. Whether they would be ultimately successful or not
    is really kind of beside the fact when you are looking
    systemically. The fact is, we would invest a lot of resources
    in trying to determine whether, in fact, it was medical
    malpractice and so forth.
        Mr. Jordan. Right. Right.
        Mr. Saltzburg, I mean, your thoughts on the slippery slope?
    Again, just from my limited time here in Congress, I see, you
    know, we had a government say, ``Well, we are going to work on
    making sure Fannie and Freddie don't fail,'' and then, ``Oh,
    that is where we will stop,'' and then the next thing you know
    it is AIG, next thing you know it is $700 billion, and here we
    are. So, the tendency of government to start with very limited
    intentions and then quickly move in a broader context is, you
    know, the history is pretty strong that it does that, so your
    thoughts?
        Mr. Saltzburg. I actually think that it is always a good
    idea to worry about slippery slopes, and particularly in this
    context, because look at the last 60 years. The Feres Doctrine
    started out in what looked like it was going to be a narrow
    doctrine and it has flipped the other way, as you say, so it
    now covers virtually everything that military personnel end up
    being involved with. I think the choice of ``combat
    operations'' was an important one because of its avoidance of
    the use of the term ``war,'' which causes even more confusion.
        I would agree with General Altenburg. I think if you ask,
    ``What are the odds that this will result in a problem?'' I
    think remote is probably the right answer. But if somebody said
    nonexistent, they would be lying to you.
        Mr. Jordan. Okay.
        Mr. Cohen. Thank you, Mr. Jordan.
        Mr. Jordan. Thank you, Mr. Chairman.
        Mr. Cohen. You are very welcome.
        Mr. King, you are recognized.
        Mr. King. Thank you, Mr. Chairman.
        I do thank all the witnesses, and I wish to associate
    myself with the remarks by Mr. Jordan and Mr. Franks as well,
    especially with regard to the service of your brother, Ms.
    Rodriguez. And these stories play themselves out by the
    thousands and thousands across the history of this country, and
    we enjoy this freedom partly because of that, and I know how
    difficult it is to come forward and testify.
        But I also have a couple of questions that recur to me, and
    one is unresolved as I asked staff, and the diagnosis in 1997--
    the melanoma diagnosis--I understand it is part of a medical
    record, and I am curious about when did your brother learn
    about that diagnosis from 1997? I understand it wasn't--at
    least we don't know that he was told that in 1997, because he
    marked on the form in 2000 that he didn't have--he marked
    ``no'' on the medical history question about cancer. So when
    did he learn?
        Ms. Rodriguez. After he found out he had malignant melanoma
    stage three, I contacted Congressman Hinchey, and I wanted to
    get his medical records. He couldn't get his medical records
    himself, I don't know why, but we got them through Congressman
    Hinchey, and that is when he found out. We were looking through
    them and it was there; he never saw it before.
        Also, in 2003 he had another physical in Florida; it said
    the same exact thing, and he never was aware of it.
        Mr. King. Okay. And were there lab reports from the 1997
    and the 2003----
        Ms. Rodriguez. Yes.
        Mr. King. So they took a test; they got the diagnosis.
        Ms. Rodriguez. I am not sure if they took a test, but it
    was on a document, dated, with a checkmark in ``right buttock
    melanoma.''
        Mr. King. I am just going to ask that we search out that
    information, if there was tests. And I don't want to be
    difficult with you, I just--I don't disagree with what you said
    here at all, but as I bring up that subject--as I bring up that
    subject the--I know you have listened to General Altenburg's
    testimony too, and I wonder if you have anything you would like
    to say into the record about your response to General
    Altenburg's testimony.
        Ms. Rodriguez. I do have a lot of--not only on his
    statement--I hear a lot of suing and families getting monies,
    and that is not why my family is here. We are here for the
    military to be accountable.
        Every day my brother is not here with us, and to know that
    someone is not accountable for what happened and is still
    continuing working and going about with his family, and going
    about their life, it hurts. And nothing is being done.
        There is a lot--we are not the only family; there are other
    families.
        Mr. King. Could I summarize in that, you have a strong
    sense of correcting an injustice?
        Ms. Rodriguez. Just correcting it. That is what he wanted.
    He wanted this; he began this.
        Mr. King. Thank you, Ms. Rodriguez. I appreciate it.
        I think the clock is ticking quickly, but I think we need
    to go back to Mr. Fidell, and when you spoke about the wrongful
    death compensation in civilian tort claims--the wrongful death
    compensation in civilian tort claims and--or, excuse me, in
    military claims, that are proportional to rank, and that, of
    course, is proportional, then, to the income-earning capability
    of that individual. Isn't that also reflective in civilian
    courts?
        Mr. Fidell [continuing]. Wrongful death. Not for wrongful
    death. What I was talking about was military retirement
    disability.
        Mr. King. Okay. The right of retirement disability, and
    then you testified that you believe there would be people that
    would object to that formula, to that type of compensation?
        Mr. Fidell. Yes, I think distinguishing on the basis of pay
    grade, when compensating people who are put on the permanent
    disability retired list, for example, would startle many
    Americans.
        Mr. King. And then, but would you agree that that also is
    the system in the wrongful death circumstances in civilian tort
    claims--the income-earning capability of that individual is
    calculated in a similar manner?
        Mr. Fidell. Yes, but pain and suffering is not.
        Mr. King. I just thought it was important to make that
    clarification, and I also appreciate you making a clarification
    on my earlier inquiry of Mr. Hinchey. I would like to just
    offer the balance of the response to General Altenburg.
        General Altenburg. I am not familiar with the military
    retirement disability, that is to say, when the military
    considers you disabled and they pay something. But I am
    familiar, thoroughly, with VA disability retirement, and you
    are paid the same whether you are a four-star general or a PFC;
    it is based on the percentage of disability, period.
        Now, Mr. Fidell may be talking about the less often used
    retirement disability of the military system, but, I mean, I am
    a disabled veteran, and I know what I get, and I get the same
    thing that someone who has the same disability gets regardless
    of their rank or years of service.
        Mr. Fidell. I am, in fact, talking about the people who are
    retired under Title 10 who are found not fit for duty. That is
    a different economic exercise from the programs administered by
    the Department of Veterans' Affairs, and it is the active duty
    retirements that I thought the colloquy concerned.
        Mr. King. I thank all the witnesses, and I think we have
    got clarification on at least three points here, and I
    appreciate that.
        And Mr. Chairman, I would yield back the balance of my
    time.
        Mr. Cohen. Thank you, Mr. King.
        I would now like to recognize the distinguished Member from
    the 25th district of New York, Mr. Maffei.
        Mr. Maffei. Thank you, Mr. Chairman.
        I just want to--I will start with Mr. Fidell--I just wanted
    to ask--again, I am trying to figure out, would this situation
    have been any different if Sergeant Rodriguez were a reservist
    or National Guardsman as opposed to regular, you know, regular
    military.
        Mr. Fidell. Well, if the individual was on Title 10 status
    there would be no difference. In other words, a National
    Guardsman or Air National Guard, or a classic weekend warrior
    reservist, if the person was on extended active duty, the legal
    regime would be precisely the same as was involved in the
    particular case that has brought us all here today.
        Mr. Maffei. What would happen if this was a dependent of a
    military person and stationed someplace? They often do see
    military physicians----
        Mr. Fidell. Absolutely, and they have every right, under
    the Federal Tort Claims Act, to file a claim. It would be
    administratively examined in the first instance, and if they
    are unable to reach an agreement with the service, then they
    have the right to go into Federal district court.
        Mr. Maffei. Okay.
        Mrs. Rodriguez, I want to thank you for both your husband's
    service and your service to our country and for being here
    today. I just want to ask you, Sergeant Rodriguez, I mean, he
    was a very good NCO, and what was his--clearly he must have
    known that the military was saying that this would have some
    sort of effect on discipline, et cetera. Did he share with you
    any of his thoughts on that, I mean, being such a loyal
    soldier?
        Ms. Rodriguez. Did you say disciplinary?
        Mr. Maffei. No, no. The counter-argument, that he knew that
    a lot of officers were against this, and he was accustomed to
    obeying the orders of officers, why did he feel differently?
    Why did he disagree? Why did he feel that this is an example of
    a thing that he should have been able to seek restitution on?
        Ms. Rodriguez. I don't think he--he never sought out
    restitution.
        Mr. Maffei. Or just even the ability to sort of make light
    of it?
        Ms. Rodriguez. Make light of it----
        Mr. Maffei. I mean, what do you think he would think of
    this hearing? Let me ask you that.
        Ms. Rodriguez. What would he think----
        Mr. Maffei. Of this hearing, yes.
        Ms. Rodriguez. Oh, he would think that this is wonderful. I
    mean, we have come here so quickly, and we are very grateful,
    and----
        Mr. Maffei. Good. Thank you very much.
        General Altenburg, I am just curious as to, you know, how--
    I know we have sort of gone around this before, but given that
    a civilian, even a military dependent, how do we sort of--how
    do we explain kind of the double standard here? Let me ask you
    this, let me ask you this, because we have already covered
    that. Is there anything that you could think of that we could
    do that would, you know, help give our men and women in the
    service some sort of a sense that they can at least change the
    behavior of physicians--military physicians, or something like
    that--if something happens, so that even if they can't, you
    know, sue in the traditional sense, that they could make sure
    it doesn't happen again?
        General Altenburg. Well, I think if military members knew
    how many procedures there are and how many programs there are
    to review military medicine, then they ought to understand that
    there is a way of holding people accountable. Quite frankly,
    the privacy interests of doctors is what precludes more
    knowledge being out there among the forces of knowing exactly
    what happened to somebody.
        If you report someone to the national database or they
    can't practice medicine anymore, their personal privacy
    interests preclude people from sharing that information. The
    military can't publicize that they have taken a doctor out,
    that he is not practicing medicine anymore.
        I don't know if that is the case with the particular doctor
    that misdiagnosed Staff Sergeant Rodriguez. I simply don't
    know; I don't have any knowledge of that. But it is possible
    that his career has been terminated, and he is out there
    digging ditches somewhere.
        Mr. Maffei. But you think there is at least sufficient
    incentive in place that this wouldn't happen, even though
    lawsuits are not allowed in this case?
        General Altenburg. Well, sir, I believe there is, or
    soldiers would be not coming in as much as they are being
    recruited, and they would be leery of going to military
    doctors, and I don't find that to be the case.
        Mr. Maffei. You don't think it is just their sense of
    patriotism makes them feel that----
        General Altenburg. Oh, clearly that has something--what I
    am saying, a sense that the medical system won't take care of
    them is not enough to--if there is that sense, it is not enough
    to outweigh their patriotism. That is certainly true.
        Mr. Maffei. Thank you very much. My time is up.
        Thank you, Mr. Chairman.
        Mr. Cohen. You are welcome.
        We will have a second round, if necessary, and I would like
    to ask Mr. Fidell, you wanted to follow up, and I ask you to do
    so.
        Mr. Fidell. This thought has occurred to me: If I were a
    Member of this Subcommittee, I would be interested in knowing,
    actually, what was on the other side of the looking glass, in
    terms of disciplinary action, peer review action, credentialing
    action. General Altenburg is correct, there are privacy
    interests at play here, although the service has the discretion
    to disclose disciplinary action. Credentialing may be a
    different kind of issue, but in any event, it seems to me the
    Committee would want to know, as you exercise your legislative
    function, what did happen here.
        Mr. Cohen. I think that is a very good question. If staff
    could inquire I would like to know the answer. I suspect if we
    had tort law and the physician was sued, that he would start to
    examine people's dermatological problems on their posteriors--
    he would make that a priority.
        Mr. Fidell. I will say this: I have represented military
    providers, medical providers of every description, and they
    take this stuff very seriously. I don't think we should be
    casual about this; this is a real serious thing. You are
    talking about people's licenses, their livelihoods, they may
    have invested time studying at taxpayer expense to become
    physicians or other specialists, so this is a real serious
    business----
        Mr. Cohen. Thank you. We will follow up; staff will follow
    up, and I want you to know the Chair is disappointed that it
    was the minority that asked the Department of Defense to come.
    I am disappointed they didn't come, and they might not have
    come for--they didn't want to disclose whatever happened. But
    they should have been here, and I think it is a disgrace they
    weren't here when they were asked to testify on such a subject.
        Ms. Rodriguez, your brother--did he leave behind any
    dependent children?
        Ms. Rodriguez. Yes, he has a son, Carmelo.
        Mr. Cohen. And do you know if he received any benefits from
    the Federal Government as a result of your brother's death?
        Ms. Rodriguez. Yes, he does.
        Mr. Cohen. And do you know the value of those benefits?
        Ms. Rodriguez. I believe it is $1,500 monthly.
        Mr. Cohen. $1500 a month.
        Ms. Rodriguez. Yes.
        Mr. Cohen. Does Mr. Fidell or anybody else know, maybe
    General Altenburg, would it have been different if he would
    have been a general?
        General Altenburg. I don't know the answer to that.
        Mr. Cohen. Mr. Fidell, do you know?
        Mr. Fidell. Not off the top of my head, no, sir.
        Mr. Cohen. You suspect it would have been different if he
    was a general?
        Mr. Fidell. I am not going to go there without--I am kind
    of----
        Mr. Cohen. Mr. Saltzburg, anything you want to follow up
    on?
        Mr. Saltzburg. I did want to--there is a point, I think,
    that we haven't made, and it actually relates to what
    Congressman King asked in a few questions earlier, and I
    thought the Committee probably ought to think about a couple of
    these things. One of them is, would changing this doctrine
    reduce the number of doctors willing to serve in the military?
    I think the answer to that is no, because the doctors aren't
    personally liable; in fact, they have an insulation that they
    don't have in private life.
        The second issue is whether you need a right to sue. I want
    to respond to General Altenburg on this--without deprecating in
    any way peer review, discipline, even the opportunity to bring
    a court martial proceeding against a doctor. The fact of the
    matter is if you believe that the 50 states have a pretty good
    idea of what they ought to be doing with respect to medical
    malpractice, there isn't a single one that basically says if
    you end up with peer review and you claim discipline, that we
    should completely do away with the right to sue--nobody has to
    sue, but the right to sue--and the reason is that each patient
    becomes a kind of a private attorney general.
        There is not an incentive out there--and despite what
    anybody thinks, there is no incentive for doctors to run around
    trying to catch their brothers and sisters in the profession in
    malpractice. If anything the incentive goes the other way,
    which is, ``There, but for the grace of God, go I,'' and
    therefore, when in doubt, don't make an accusation. It is the
    patient and the patient's family--and Ms. Rodriguez is sitting
    here--they have a true stake, and they identify things that
    often people who are busy and have other issues, that they are
    unwilling to confront.
        There is a basic point here, I think. If Sergeant Rodriguez
    were here and he were asked the question the congressman asked
    about what would he say about why it is important to be able to
    sue and why the right should be there and why justice requires
    it, it is because one of the things that every soldier who
    enlists in the military should be entitled to is to know that
    when they are sent to a hospital, and when they are sent to a
    doctor, they will get at least as good care as they would get
    if they weren't serving their country and putting themselves in
    harm's way. One of the mechanisms that every single
    jurisdiction except the military has to ensure that care is the
    right to bring a lawsuit for malpractice.
        And as Gene Fidell has said to you, under the Federal Tort
    Claims Act, it is a much more efficient process than most of
    the states have. If you do change Feres, you don't need to
    assume that there are going to be X number of Federal lawsuits;
    you can assume there will be more claims brought, and probably
    most settled without a lawsuit ever being brought.
        Mr. Cohen. Thank you, Mr. Saltzburg. Let me ask you this:
    You mentioned private attorney generals, and sometimes we think
    of lawyers who bring tort actions as being private attorney
    generals. Do you know of any statistics that Mr. King asked
    about that would show that tort actions do improve health care?
        Mr. Saltzburg. If you were to look at the literature, you
    would find that there are studies that support virtually any
    opinion that anyone would care to offer, and it is largely
    because there are interest groups that fund a lot of these
    studies. The----
        Mr. Cohen. So your answer is yes, but it is also
    statisticians--damned statisticians, the liars.
        Mr. Saltzburg. The case has been made--I say made, and
    argued, I should have said--the case has been argued that
    medical malpractice lawsuits drive up medical insurance, tend
    to make people less wanting to be doctors, and don't improve
    the quality of medical care. And the counter case has been
    that, in fact, insurance costs hardly are affected by medical
    malpractices; they are much more affected by investment
    policies of insurance companies. We have no shortage of people
    applying to medical school wanting to be doctors, and private
    litigation at least has done this: It has put a lot of doctors
    that have committed malpractice on the list that identifies
    them as people who have committed malpractice, and they might
    not have been there without the private suits. But no one, I
    think, can cite you one study that would say, ``This is the
    answer. This is how much benefit you get from litigation.''
        Mr. Cohen. Thank you, sir. And I am going to allow myself
    one last question, because we went from green to red, which was
    unusual--mistake in our system.
        Either Mr. Saltzburg or Mr. Fidell, are there statutes that
    you are aware of that permit service members to sue the
    government?
        Mr. Fidell. Oh, absolutely, and although the government may
    not be happy about this, G.I.s do, from time to time, sue the
    government. For example, a G.I. can sue for a violation of the
    Privacy Act. It happens; they are hard lawsuits.
        A G.I. can sue the government, for example, to overturn a
    decision of one of the boards for correction of military
    records. That happens with some regularity, in this judicial
    district, particularly. So there are certainly situations where
    G.I.s are in court and the government is on the other side.
    There is nothing particularly disturbing about that. I think if
    you didn't have that, people would be up in arms.
        Mr. Cohen. Mr. Saltzburg, do you have anything to add?
        Mr. Saltzburg. I agree with that, but let me see if my
    friend, Gene, agrees with me on one thing. If Sergeant
    Rodriguez had been on leave from Iraq, and he had been back in
    New York, and he was driving his car and he was run into by a
    military doctor, he would have been able to sue the military
    doctor without any limitation due to Feres, wouldn't you agree?
        Mr. Fidell. Just a fortuity that one--yes----
        Mr. Saltzburg. And the doctor, in that case, would be
    facing, you know, personal liability. I mean, Feres goes so
    far, if he is on his base in Iraq and he gets in a vehicle, and
    a military doctor is drunk and drives his vehicle into Sergeant
    Rodriguez, this isn't medical malpractice, but he can't sue. I
    mean, that is the problem with this Feres Doctrine, which is,
    it does make our military personnel second-class citizens when
    it comes to using the tort system to try and assure that they
    will be treated fairly.
        Mr. Cohen. And General Altenburg, knowing that there--and I
    presume you knew as well--that there are statutes that allow
    the military to sue in these circumstances even from their
    employment, that doesn't interfere with military discipline.
    These are distinctions where military can sue, and those
    distinctions do or do not bother you?
        General Altenburg. Are you talking about the distinction in
    the case of torts?
        Mr. Cohen. Yes, sir. Or non-torts, for that matter.
        General Altenburg. Well, just so they can be a party
    plaintiff and sue their military superiors. I believe that tort
    litigation, where the facts indicate incident to service, can
    be and usually are disruptive to the efficiency of the service,
    because of the unique nature of the mission and the training
    that goes with it.
        Mr. Cohen. Thank you, sir.
        Mr. King, do you have any further questions?
        Mr. King. Thank you, Mr. Chairman. I had a few things that
    arose to my mind as I listened to your questions, and I was
    listening to Mr. Saltzburg, whom I consider to be a very
    objective witness, and you have endeavored to inform this panel
    each time you have spoken. This question occurs to me, though,
    and that would be off of, I believe, a statement you made that
    if this proposal, this bill that we are discussing, Mr.
    Hinchey's bill, if it doesn't discourage doctors from entering
    and training in the military--if it doesn't discourage them,
    then the system that would evolve from it or would emanate from
    it--how can it then provide for accountability?
        What is the check on accountability--if it is not a
    discouragement to doctors, then where does accountability
    manifest itself under this bill?
        Mr. Saltzburg. I am not a doctor, but I am old enough now
    that I happen to deal with a lot of them, and they do talk
    about litigation, their concerns about insurance and things
    like that, and the answer, I think, Congressman, is this: That
    people thinking about being doctors and who are doctors are
    worried about several things. They are worried about whether
    they are going to be sued, whether they are going to be
    personally liable, and whether their right to practice medicine
    is going to be adversely affected.
        Now, in a perfect system, if they commit malpractice they
    should be on a list that identifies them as having committed
    malpractice, which does adversely affect them. But all things
    being equal, the doctor who chooses the military knows that he
    probably--or she probably--will never be personally liable. So
    the real fear is of an extraordinary adverse event that exceeds
    your insurance and exposes whatever assets you have to
    somebody's recovery, that will never happen in the military.
        As for the question, well, how do you get accountability?
    Everyone, I think, on the panel agrees that accountability is
    important, that all of the devices, whether it is peer review
    or discipline or a suit, are all designed to identify that
    doctor who commits malpractice. The reality is, that doctor
    shouldn't and can't expect to escape responsibility for
    malpractice. What they can escape is being personally
    responsible, and that is what the military does--it protects
    them.
        Mr. King. Would a doctor that would move from private
    practice into the military, he would escape malpractice
    premiums and the threat of malpractice? If I follow your
    thought through, then the next question that flows to me is,
    would there be civilian doctors that would seek to go into the
    military for the protection that would exist?
        Mr. Saltzburg. My experience has been that the civilian
    doctors who are willing to go into the military do it not to
    escape--they really don't do it to escape liability; they do it
    out of sense of public service.
        Mr. King. Would you agree that the incentive would exist?
        Mr. Saltzburg. I do.
        Mr. King. And also, I just want to reiterate your testimony
    that the data says yes and no on these questions, and I
    appreciate that.
        And I wanted to give General Altenburg an opportunity to
    respond to that, because I may have left something hanging in
    the air here that needs to be cleared up.
        General Altenburg. With regard to accountability?
        Mr. King. Yes. How can there be accountability that is
    provided if the doctors are shielded from liability that are in
    the military, then how does accountability emerge from this
    legislation? That seems to be the thrust of this legislation,
    is the accountability rather than the compensation.
        General Altenburg. Yes, sir. And I think that--well, first
    of all, in the civilian sector, besides the peer review and so
    forth, all they really have is lawsuits, you know, for
    accountability, and as Steve said, it is up in the air as to
    whether that really does reduce medical malpractice or not.
        In the military, besides all these systems, and I would
    tell you that there are more systems and more procedures simply
    because we are getting more oversight from you gentlemen and
    women, and because our culture is all about accountability,
    more so than any segment of our society. And we have more tools
    available, in terms of administrative actions outside the
    medical discipline itself, and discipline and administrative
    procedures, and literally really kicking people out of the
    ability to practice medicine and force them out of the service,
    I think we have more capability than the civilian sector does.
        Mr. King. General, you referenced Landstuhl, and I, like
    you, have spent a little time there, mine very briefly, but it
    occurs to me that there was a Major Langvine, I recall, who
    took care of the logistics of the transfer of patients to the
    tarmac to be brought back here to Andrews and Walter Reed, and
    Bethesda, sometimes, in Texas, and I remember that at that time
    that he had delivered this information to me, that they had
    transferred 39,000 patients from Landstuhl to the United
    States, lost only one, and that was an unrelated heart attack,
    rather than to an injury, and that occurs to me as you testify.
        I would ask you if there has ever been a military in the
    history of the world that delivered such first-class health
    care to all of its people on balance. Has there ever been
    anyone that would rival what has been accomplished by the
    United States of America in this recent conflict?
        General Altenburg. I share your enthusiasm for our
    medicine, and I am just reluctant to compare ourselves to
    everybody in the world. I wouldn't doubt that that is true, and
    I will say personally, I am very proud of military medicine. It
    is extraordinary what these people do--the medical care
    people--in the military, and we have seen some distractions in
    the last few years that actually have nothing to do with acute
    medical care, but had to do with caring for people as they were
    in a different kind of status, and it may very well be the
    best. I can't imagine a military medicine system that is better
    than ours.
        Mr. King. I am happy for that to be the last word. I thank
    all the witnesses, and especially Ms. Rodriguez, for coming
    forward in a difficult time, and I yield back the balance of my
    time, Mr. Chairman.
        Mr. Cohen. Thank you, Mr. King.
        I would like to thank the Members who participated today,
    and all the witnesses who participated with their testimony,
    particularly Ms. Rodriguez and on behalf of the family. Without
    objection, Members will have 5 legislative days to submit
    additional questions, which will be submitted to the panelists,
    and we hope that you would then respond to those; they will be
    made a part of the record. Without objection, the record will
    remain open for 5 days for submission of any additional
    materials the Members might want to submit.
        Again, I thank everybody for their time and their patience.
        This hearing of the Subcommittee on Commercial and
    Administrative Law is adjourned.
        [Whereupon, at 4:16 p.m., the Subcommittee was adjourned.]
                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr., a Representative
      in Congress from the State of Michigan, Chairman, Committee on the
     Judiciary, and Member, Subcommittee on Commercial and Administrative
                                      Law
        The Supreme Court's long-standing ``Feres doctrine'' denies members
    of our armed forces the right to sue the government that Congress gave
    all Americans when it enacted the Federal Tort Claims Act.
        Our issue at today's hearing is whether Congress should allow this
    doctrine to continue denying service members the right to sue under the
    Act when they are killed or injured as a result of medical malpractice
    while serving our country.
        Let me offer three initial comments on that issue:
        First, Feres was wrongly decided. The Federal Tort Claims Act does
    not exclude service members from its coverage. It excludes only claims
    ``arising out of the combatant activity'' of service members ``during
    time of war.''
        That exemption, as Justice Scalia has explained, shows that
    Congress ``quite plainly excluded'' the blanket exemption for service
    members recognized in Feres.
        Second, it is too late to expect that the Supreme Court will
    overrule Feres. The restoration of the rights conferred on service
    members by the Federal Tort Claims Act can only come from Congress.
        Third, none of the arguments supporting Feres have ever struck me
    as persuasive.
        The main argument is that lawsuits by service members will
    interfere with ``military discipline.'' I hope our witnesses will
    address whether medical malpractice suits, in particular, will have
    that effect.
        They should keep in mind that the legislation before us
    specifically excludes medical malpractice claims when they ``arise out
    of the combatant activities of the Armed Forces during time of armed
    conflict.''
                                   __________
         Response to Post-Hearing Questions from Stephen A. Saltzburg,
     Professor, The George Washington University Law School, Washington, DC

     Response to Post-Hearing Questions from John D. Altenburg, Jr., Esq.,
      Major General (Retired), United States Army, Greenberg Traurig, LLP

     Response to Post-Hearing Questions from Eugene R. Fidell, Esq., Yale
       Law School, National Institute of Military Justice, Washington, DC

      Letter from Stephen A. Saltzburg, Professor, The George Washington
                     University Law School, Washington, DC

         Letter from Adele Connell, Ph.D., Colonel, United States Army

                            Letter from Alexis Witt

                   Letter from L. Richard Fried, Jr., Esq.,
                   Cronin, Fried, Sekiya, Kekina & Fairbanks

        Letter from Barb Cragnotti, VERPA Chair/Legislative Coordinator