[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



                                 
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