[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
------
U.S. GOVERNMENT PRINTING OFFICE
48-232 WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
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