[House Report 111-466]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-466
======================================================================
CARMELO RODRIGUEZ MILITARY MEDICAL ACCOUNTABILITY ACT OF 2009
_______
April 26, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1478]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 1478) to amend chapter 171 of title 28, United States
Code, to allow members of the Armed Forces to sue the United
States for damages for certain injuries caused by improper
medical care, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 10
Committee Consideration.......................................... 11
Committee Votes.................................................. 11
Committee Oversight Findings..................................... 14
New Budget Authority and Tax Expenditures........................ 14
Congressional Budget Office Cost Estimate........................ 14
Performance Goals and Objectives................................. 17
Constitutional Authority Statement............................... 17
Advisory on Earmarks............................................. 17
Section-by-Section Analysis...................................... 17
Changes in Existing Law Made by the Bill, as Reported............ 18
Dissenting Views................................................. 20
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Carmelo Rodriguez Military Medical
Accountability Act of 2009''.
SEC. 2. ALLOWANCE OF CLAIMS BY MEMBERS OF THE ARMED FORCES AGAINST THE
UNITED STATES FOR CERTAIN INJURIES CAUSED BY
IMPROPER MEDICAL CARE.
(a) In General.--Chapter 171 of title 28, United States Code, is
amended by adding at the end the following:
``Sec. 2681. Certain claims by members of the Armed Forces of the
United States
``(a) A claim may be brought against the United States under this
chapter for damages relating to the personal injury or death of a
member of the Armed Forces of the United States arising out of a
negligent or wrongful act or omission in the performance of medical,
dental, or related health care functions (including clinical studies
and investigations) that is provided by a person acting within the
scope of the office or employment of that person by or at the direction
of the Government of the United States, whether inside or outside the
United States.
``(b) A claim under this section shall not be reduced by the amount
of any benefit received under subchapter III (relating to
Servicemembers' Group Life Insurance) of chapter 19 of title 38.
``(c) This section does not apply to any claim arising out of the
combatant activities of the Armed Forces during time of armed conflict.
``(d) For purposes of claims brought under this section--
``(1) subsections (j) and (k) of section 2680 do not apply;
and
``(2) in the case of an act or omission occurring outside the
United States, the `law of the place where the act or omission
occurred' shall be deemed to be the law of the place of
domicile of the plaintiff.
``(e) As used in this section, the term `a negligent or wrongful act
or omission in the performance of medical, dental, or related health
care functions (including clinical studies and investigations)' has the
same meaning given that term for purposes of section 1089(e) of title
10.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 171 of title 28, United States Code, is amended by adding at
the end the following:
``2681. Certain claims by members of the Armed Forces of the United
States.''.
(c) Effective Date.--The amendments made by this section shall apply
with respect to a claim arising on or after January 1, 1997, and any
period of limitation that applies to such a claim arising before the
date of enactment of this Act shall begin to run on the date of that
enactment.
Purpose and Summary
H.R. 1478 would amend the Federal Tort Claims Act
(FTCA),\1\ by adding a new section 2681 to chapter 171 of title
28 of the United States Code, to allow service members to sue
for damages when they are harmed by medical malpractice
committed by government-employed or -directed healthcare
providers. This will ensure accountability in the military
medical system, extending to active-duty military service
members and their families rights that civilians currently
possess.
---------------------------------------------------------------------------
\1\28 U.S.C. Sec. Sec. 1346(b)(1), 2671-2680.
---------------------------------------------------------------------------
Section 2681 would not apply to ``any claim arising out of
the combatant activities of the Armed Forces during time of
armed conflict.''\2\ Under current law, the FTCA already
prohibits claims ``arising out of the combatant activities . .
. during time of war.''\3\ But this exclusion has been
interpreted to apply only to combatant activities undertaken
pursuant to a formal declaration of war.\4\ The exclusion
provided under proposed section 2681 is intended to encompass a
broader range of combat activity, so that a formal declaration
of war is not a prerequisite.
---------------------------------------------------------------------------
\2\Id. (amendment to FTCA adding 28 U.S.C. Sec. 2681(c)).
\3\28 U.S.C. Sec. 2680(j).
\4\See H.R. 1478, the Carmelo Rodriguez Military Medical
Accountability Act of 2009: Hearing Before the Subcomm. on Com. and
Admin. Law of the H. Comm. on the Judiciary, 111th Cong. 114, 172-73
(2009) (hereinafter ``2009 Subcommittee Hearings'') (written statement
and answers to questions for record of Stephen A. Saltzburg).
---------------------------------------------------------------------------
Background and Need for the Legislation
FEDERAL TORT CLAIMS ACT
The doctrine of sovereign immunity holds that the
government may not be sued without its consent. The Federal
Tort Claims Act (FTCA) waives the sovereign immunity of the
United States, in part, by rendering the United States liable
for damages in Federal court--and Federal court only--``for
injury or loss of property, or personal injury or death caused
by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.''\5\
---------------------------------------------------------------------------
\5\28 U.S.C. Sec. 1346(b)(1). This is the section of title 28
U.S.C. that confers exclusive jurisdiction on the Federal courts to
hear suits arising in tort against the United States, subject further
to the FTCA. The FTCA itself provides that the ``United States shall be
liable, respecting . . . tort claims, in the same manner and to the
same extent as a private individual under like circumstances. . . .''
28 U.S.C. Sec. 2674.
---------------------------------------------------------------------------
State law provides the substantive rule of decision in FTCA
suits, with some notable exceptions. For example, the FTCA bars
the award of punitive damages or pre-judgment interest.\6\
However, in wrongful death cases, the FTCA authorizes the
substitution of compensatory damage awards in circumstances
where State law provides only for punitive damages.\7\
---------------------------------------------------------------------------
\6\28 U.S.C. Sec. 2674; 2009 Subcommittee Hearings at 235 (letter
from Stephen A. Saltzburg).
\7\28 U.S.C. Sec. 2674.
---------------------------------------------------------------------------
The FTCA includes over a dozen exceptions that preserve the
government's sovereign immunity in specified circumstances. One
of particular relevance to H.R. 1478 covers ``[a]ny claim
arising out of the combatant activities of the military or
naval forces, or the Coast Guard, during time of war.''\8\
Other exceptions relevant to H.R. 1478 include: ``[a]ny claim
based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or
regulation . . . , or based upon the exercise or performance or
the failure to exercise or perform a discretionary function or
duty on the part of a Federal agency or an employee of the
Government'';\9\ ``[a]ny claim arising out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse
of process, libel, slander, misrepresentation, deceit, or
interference with contract rights''\10\; and ``[a]ny claim
arising in a foreign country.''\11\
---------------------------------------------------------------------------
\8\Id. Sec. 2680(j).
\9\Id. Sec. 2680(a).
\10\Id. Sec. 2680(h).
\11\Id. Sec. 2680(k).
---------------------------------------------------------------------------
THE FERES DOCTRINE: A JUDICIALLY RECOGNIZED EXCLUSION
Since the 1950 Supreme Court decision in Feres v. United
States,\12\ the FTCA has been interpreted generally to preclude
all suits by members of the military against the United States
for injuries sustained incident to their service. Feres
involved injuries suffered by three active-duty servicemen as a
result of the negligence of other servicemen. Two of the claims
alleged medical malpractice arising from the negligence of Army
doctors. The Court concluded that none of the claims were
actionable, holding that the FTCA does not render the
government liable ``for injuries to servicemen where the
injuries arise out of or in the course of activity incident to
service.''\13\ This expansive limitation on FTCA liability has
come to be known as the ``Feres doctrine.''\14\
---------------------------------------------------------------------------
\12\340 U.S. 135 (1950).
\13\Id. at 146.
\14\See generally Jonathan Turley, Pax Militaris: The Feres
Doctrine and the Retention of Sovereign Immunity in the Military System
of Governance, 71 Geo. Wash. L. Rev. 1 (2003).
---------------------------------------------------------------------------
The Feres Court enunciated three reasons in support of its
conclusion that Congress intended to exclude claims arising
from actions incident to military service:
First, the FTCA imposes government liability only ``under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.''\15\ There is no
``parallel'' private liability when it comes to the military,
``for no private individual has power to conscript or mobilize
a private army.''\16\
---------------------------------------------------------------------------
\15\28 U.S.C. Sec. 1346(b)(1).
\16\Feres, 340 U.S. at 141-42.
---------------------------------------------------------------------------
Second, the Court noted that liability under the FTCA
depends on where the service member was injured. Hence, a
service member injured in one State might recover under the
FTCA, but a service member injured in another State might
not.\17\ Congress could not have intended to subject the
``relationship between the Government and members of its armed
forces,'' which is ``distinctively Federal in character,'' to
geographically diverse liability standards.\18\
---------------------------------------------------------------------------
\17\Id. at 142.
\18\Id. at 143.
---------------------------------------------------------------------------
Third, the Court found persuasive that service members
injured or killed incident to their service are entitled to
various benefits under the Veterans' Benefits Act (VBA)\19\ on
a no-fault basis--that is, without regard to whether the
government was at fault. ``If Congress had contemplated that .
. . [the FTCA] would be held to apply in cases of this kind, it
is difficult to see why it should have omitted any provision to
adjust these two types of remedy to each other.''\20\
---------------------------------------------------------------------------
\19\72 Stat. 1118 (1958) (as amended at 38 U.S.C. Sec. 301 et
seq.).
\20\Feres, 340 U.S. at 144. In subsequent decisions, the Court
presumed that Congress intended the VBA to provide the ```the sole
remedy for service-connected injuries.''' Johnson v. United States, 481
U.S. 681, 690 (1987) (quoting Hatzlachh Supply Co. v. United States,
444 U.S. 460, 464 (1980)).
---------------------------------------------------------------------------
The Supreme Court has consistently reaffirmed Feres.\21\
Over time, the Feres doctrine has evolved to include other
rationales as a basis for denying service members relief under
the FTCA. The Court has dropped the parallel-private-liability
rationale,\22\ but adopted another: Suits by service members
might unduly interfere with ``military discipline and
effectiveness''\23\ and require courts to ``second-guess
military decision[making].''\24\ The Court has characterized
this post-hoc rationale for the Feres doctrine as the strongest
of the three surviving rationales.\25\ In its most recent
decision on the subject, Johnson v. United States,\26\ the
Court applied these rationales and extended the Feres doctrine
to bar suits by service members arising from the negligent
actions of civilian government employees.
---------------------------------------------------------------------------
\21\For a summary of the cases, see Henry Cohen, Federal Tort
Claims Act: Current Legislative and Judicial Issues, CRS Rpt. No. 95-
717, at 4-9 (2008); Deirdre G. Brou, Alternatives to the Judicially
Promulgated Feres Doctrine, 192 Mil. L. Rev. 1 (2007).
\22\See United States v. Muniz, 374 U.S. 150, 159 (1963).
\23\United States v. Shearer, 473 U.S. 52, 59 (1985); see also
Johnson, 481 U.S. at 690. The Court has explained the ``military
discipline'' rationale as follows: ``[T]o accomplish its mission the
military must foster instinctive obedience, unity, commitment, and
esprit de corps. . . . [A] suit based upon service-related activity
necessarily implicates the military judgments and decisions that are
inextricably intertwined with the conduct of the military mission.
Moreover, military discipline involves not only obedience to orders,
but . . . duty and loyalty to one's service and to one's country. Suits
brought by service members against the Government for service-related
injuries could undermine the commitment essential to effective service
and thus have the potential to disrupt military discipline in the
broadest sense of the word.'' Id. at 691 (modification in original)
(internal quotations and citations omitted).
\24\Shearer, 473 U.S. at 57. See also, 481 U.S. at 699 (Scalia, J.,
joined by Brennan, Marshall, and Stevens, JJ., dissenting).
\25\See, e.g., United States v. Shearer, 473 U.S. 52, 57 (1985);
Chappell v. Wallace, 462 U.S. 296, 299 (1983); see also Johnson, 481
U.S. at 698 (Scalia, J., joined by Brennan, Marshal, and Stevens, JJ.,
dissenting) (noting that the Court has ``repeatedly cited the later-
conceived-of `military discipline' rationale as the `best
explanation''' for Feres). In a case decided just 2 years before
Johnson, the Court described the two other rationales supporting Feres
as ``no longer controlling.'' Shearer, 473 U.S. at 58 n.4. But in
Johnson the Court recited those two other rationales without suggesting
that they were no longer controlling. See 481 U.S. at 688-692.
\26\481 U.S. 681 (1987).
---------------------------------------------------------------------------
Four Justices dissented in Johnson, contending that Feres
was ``clearly wrong.''\27\ Writing for the dissenters, Justice
Scalia argued that Congress ``quite plainly excluded'' the
service-member exception recognized in Feres.\28\ In
particular, Justice Scalia wrote, the FTCA's express exclusion
of ```[a]ny claim arising out of the combatant activities of
the military . . . during time of war' . . . demonstrat[es]
that Congress specifically considered, and provided what it
thought needful for, the special requirements of the
military.''\29\ Justice Scalia criticized the Court for
``supplement[ing]--i.e., revis[ing]--that congressional
disposition''\30\ and relying on its own belief as to what
Congress must have intended.
---------------------------------------------------------------------------
\27\Id. at 703 (Scalia, J., joined by Brennan, Marshall, and
Stevens, JJ., dissenting).
\28\Id. at 692.
\29\Id. at 693.
\30\Id.
---------------------------------------------------------------------------
The Johnson dissenters further stated that none of the
``three disembodied estimations of what Congress must (despite
what it enacted) have intended'' reflect Congress's expressed
intent.\31\ The dissent offered the following critique of those
rationales.
---------------------------------------------------------------------------
\31\Johnson, 481 U.S. at 699 (Scalia, J., joined by Brennan,
Marshall, and Stevens, JJ., dissenting) (emphasis in original).
---------------------------------------------------------------------------
(1) Need for Uniformity. The dissenters stated three
reasons why this rationale could not support the Feres
doctrine. First, Congress addressed the areas in which it
deemed uniformity to be important by exempting certain
activities from liability (e.g., the ``regulation of the
monetary system''\32\). In the case of the military, Congress
exempted only claims arising from combatant and overseas
military activities.\33\ Second, the Court itself has undercut
the uniformity rationale by permitting civilians to sue under
the FTCA when they are injured by military personnel.\34\
Third, it is ``difficult to explain why uniformity . . . is
indispensable for the military, but not for the many other
Federal departments and agencies that can be sued under the
FTCA for the negligent performance of their unique national
functions,'' including, for example, the administration of the
Federal prison system.\35\
---------------------------------------------------------------------------
\32\28 U.S.C. Sec. 2680(I).
\33\Johnson, 481 U.S. at 693-94 (Scalia, J., joined by Brennan,
Marshal, and Stevens, JJ., dissenting).
\34\Id. at 696.
\35\Id.
---------------------------------------------------------------------------
(2) Availability of Veterans' Benefits. The dissenters
rejected this rationale as inconsistent with the Court's prior
FTCA case law. Twice the Court had allowed certain injured
service members to recover damages under the FTCA even though
they were entitled to veterans benefits under the VBA--in one
case a serviceman hit by an Army truck while off duty,\36\ and
in the other a veteran who suffered malpractice at a veterans
hospital.\37\ The Court had noted in one of those two cases
that ``nothing in the Tort Claims Act or the veterans' laws . .
. provides for exclusiveness of remedy,'' and the Court refused
to ``call either remedy . . . exclusive . . . when Congress has
not done so.''\38\ The Court had ``noted further that Congress
had included three exclusivity provisions in the FTCA, . . .
but had said nothing about servicemen plaintiffs.''\39\ The VBA
the dissenters stated, ``is not, as Feres assumed, identical to
Federal and State workers' compensation statutes in which
exclusivity provisions almost invariably appear.\40\ The VBA
provides less generous and more easily terminable benefits.\41\
---------------------------------------------------------------------------
\36\See Brooks v. United States, 337 U.S. 49 (1949).
\37\See United States v. Brown, 348 U.S. 110 (1954). The Court made
clear in Brown that Brooks survived Feres. See id. at 113; see also
Johnson, 481 U.S. at 698 (Scalia, J., joined by Brennan, Marshall, and
Stevens, JJ., dissenting).
\38\Id. at 697 (quoting Brooks, 337 U.S. at 53) (modifications in
original).
\39\Id. (citing Brooks, 337 U.S. at 53).
\40\Id. at 698.
\41\Id.
---------------------------------------------------------------------------
(3) Military Discipline. While the dissenters agreed that
there may be times when FTCA suits involving the military
``will adversely affect military discipline . . . the effect
upon military discipline is [not] so certain, or so certainly
substantial,'' to justify recognizing a blanket exemption for
conduct incident to military service.\42\ It is by no means
clear that Congress considered FTCA suits by service members to
be inconsistent with military discipline. Congress may have
``recognized that the likely effect of Feres suits upon
military discipline is not as clear as'' the Court has assumed;
or ``perhaps Congress assumed that the FTCA's explicit
exclusions would bar those suits most threatening to military
discipline'' (e.g., ``claims based on combat command decisions,
28 U.S.C. Sec. 2680(j)''; ``claims based upon performance of
`discretionary' functions, Sec. 2680(a)''; and ``claims arising
in foreign countries, Sec. 2680(k)''); or ``perhaps . . .
Congress thought that barring recovery by servicemen might''
lower morale and thereby ``adversely affect military
discipline.''\43\
---------------------------------------------------------------------------
\42\Id. at 699.
\43\Id. at 699-700 (emphasis in original).
---------------------------------------------------------------------------
SUPPORT FOR AND OPPOSITION TO THE FERES DOCTRINE
Support for the Feres doctrine is largely confined to the
Department of Defense, some retired high-ranking military
officers (among them retired Major General John Altenburg, Jr.,
who testified at the Subcommittee hearing), and what appears to
be a minority of Members of Congress.\44\ The George W. Bush
Administration supported the Feres doctrine. The Obama
Administration has not taken a public position on the issue.
---------------------------------------------------------------------------
\44\The last time a bill came before the House that would have
narrowed the Feres doctrine, H.R. 1054, 100th Cong. (1987), it passed
by a vote of 312 to 61. Compare 2009 Subcommittee Hearings at 178
(answers to questions for record of John D. Altenburg, Jr.) (contending
that the ``longevity [of Feres] reflects an essential principle of
fundamental agreement among the generations of Americans as to the
rightness of the Feres doctrine'') with Johnson, 481 U.S. at 702-03
(1987) (Scalia, J., joined by Brennan, Marshall, and Stevens, JJ.,
dissenting) (rejecting argument that Congress's failure to overturn
Feres reflects Congressional acquiescence).
---------------------------------------------------------------------------
Supporters of the Feres doctrine defend it on two grounds.
The first and predominant ground is identical to the principal
rationale that sustains Feres in the Supreme Court's case law:
that barring suit is necessary to maintain ``good order and
discipline in the military.''\45\ Supporters claim that
lawsuits based on challenges by one service member to the
conduct of another service member will erode the key features
of military discipline--``cohesiveness, obedience, discipline,
putting the interest of the service ahead of the interest of
the individual, and an inherent, unencumbered and unfettered
trust and confidence up and down the chain of command.''\46\
``This degree of trust and confidence,'' explained a Department
of Defense spokesperson who testified before the Senate
Judiciary Committee, ``cannot exist in an adversarial legal
environment.''\47\ A retired general similarly testified that
the introduction of litigation into the military would harm
``unit cohesiveness'' and with it ``combat effectiveness.''\48\
And at our Subcommittee hearing, retired Major General
Altenburg warned about the potential adverse consequences of
subjecting sensitive military ``decisionmaking'' to scrutiny by
civilian courts.\49\
---------------------------------------------------------------------------
\45\The Feres Doctrine: An Examination of this Military Exception
to the Federal Tort Claims Act: Hearing Before the S. Comm. on the
Judiciary, 107th Cong. 4 (2002) (statement of Christopher E. Weaver,
Rear Admiral and Commandant, Naval District of Washington); see also
id. at 2 (statement of Paul Harris, Deputy Associate Attorney General,
Department of Justice).
\46\Id. at 4 (statement of Christopher Weaver, Rear Admiral and
Commandant, Naval District of Washington).
\47\Id.
\48\Id. at 9. (statement of Nolan Sklute, Major General (Retired),
Former Judge Advocate General, U.S. Air Force).
\49\2009 Subcommittee Hearings at 123, 140-41 (testimony and
written statement of John D. Altenburg, Jr.).
---------------------------------------------------------------------------
The second ground advanced by supporters of the Feres
doctrine is that an alternative, no-fault compensation scheme
(of which the VBA is the main component) already exists to
compensate service members who are injured or killed as a
result of medical malpractice while serving. Although most
supporters of Feres concede that the benefits available under
this scheme are not as generous as tort-law remedies--and
perhaps should be made more generous--they maintain that,
unlike the tort system, the current scheme is at least even-
handed and predictable in its distribution of benefits.\50\
---------------------------------------------------------------------------
\50\See, e.g., id. at 138-40 (written statement of John D.
Altenburg, Jr.); The Feres Doctrine: An Examination of this Military
Exception to the Federal Tort Claims Act: Hearing before the S. Comm.
on the Judiciary, 107th Cong. 5 (2002) (statement of Christopher
Weaver, Rear Admiral and Commandant, Naval District of Washington).
---------------------------------------------------------------------------
Criticism of the Feres doctrine by lower courts and legal
commentators has been, according to Justice Scalia,
``widespread, almost universal.''\51\ Opponents include
veterans' advocacy groups,\52\ many lawyers who have worked in
the military justice system\53\ (including some active duty
military lawyers\54\), the National Institute of Military
Justice's Commission on the Fiftieth Anniversary of the Uniform
Code of Military Justice (known as the Cox Commission),\55\ and
the American Bar Association (ABA). In 2008, the ABA issued an
unopposed resolution calling on Congress to repeal the Feres
doctrine altogether.\56\
---------------------------------------------------------------------------
\51\Johnson, 481 U.S. at 700 (1987) (Scalia, J., joined by Brennan,
Marshal, and Stevens, JJ., dissenting) (citation omitted).
\52\See, e.g., 2009 Subcommittee Hearings at 102 (letter from
Veterans Equal Rights Protection Advocacy, Inc.).
\53\See id. at 14, 55 (testimony and written statement of Eugene R.
Fidell).
\54\See, e.g., Deirdre G. Brou, Alternatives to the Judicially
Promulgated Feres Doctrine, 192 Mil. L. Rev. 1 (2007).
\55\See Walter T. Cox, III., et al., Report of the Commission on
the 50th Anniversary of the Uniform Code of Military Justice Sec. IV.C
(May 2001), available at http://www.wcl.american.edu/nimj/documents/
cox--comm--report2.pdf?rd=1.
\56\See American Bar Association Res. 10(b) (Aug. 11-12, 2008).
---------------------------------------------------------------------------
Opponents emphasize two related points. First, that Feres
unfairly discriminates against service members by treating them
less favorably than other citizens injured or killed as a
result of government negligence. Second, that Feres leaves
service members harmed by the negligence of the military
inadequately compensated for economic damages and, contrary to
well-established tort law principles, entirely uncompensated
for non-economic damages (e.g., pain and suffering).\57\
---------------------------------------------------------------------------
\57\See, e.g., 2009 Subcommittee Hearings at 146-47, 233 (testimony
and answers to questions for record of Eugene R. Fidell); The Feres
Doctrine: An Examination of this Military Exception to the Federal Tort
Claims Act: Hearing before the S. Comm. on the Judiciary, 107th Cong. 1
(2002) (statement of Senator Arlen Specter); American Bar Association
Res. 10(b) (Aug. 11-12, 2008); Deirdre G. Brou, Alternatives to the
Judicially Promulgated Feres Doctrine, 192 Mil. L. Rev. 1, 49-50
(2007).
---------------------------------------------------------------------------
Opponents say neither of the two rationales advanced to
support Feres are persuasive. They reject the military-
discipline rationale for much the same reasons as the
dissenters in Johnson did. They emphasize that the FTCA's
existing exceptions already ban the types of claims that are
most likely to threaten military discipline.\58\ At the
Subcommittee hearing, attorney and legal scholar Eugene Fidell
also responded to the military-discipline rationale by noting
that several statutes already permit service members to bring
suits in Federal district courts challenging certain personnel
actions by the military.\59\
---------------------------------------------------------------------------
\58\See, e.g., 2009 Subcommittee Hearings at 97, 172 (testimony and
answers to questions for the record of Stephen A. Saltzburg).
\59\Id. at 232 (answers to questions for the record of Eugene R.
Fidell).
---------------------------------------------------------------------------
As for the argument that the existing no-fault compensation
scheme under the VBA should provide the exclusive remedy for
service-related harms, Feres doctrine opponents say that the
benefits available under this scheme are inadequate to redress
most torts.\60\ Key limitations include its failure to account
for future increases in pay when calculating benefits and, more
importantly, its failure to provide any compensation for the
types of non-economic harms regularly awarded in tort
suits.\61\
---------------------------------------------------------------------------
\60\Deirdre G. Brou, Alternatives to the Judicially Promulgated
Feres Doctrine, 192 Mil. L. Rev. 1, 48 (2007).
\61\See, e.g., 2009 Subcommittee Hearings at 146-47, 233 (testimony
and answers to questions for the record of Eugene R. Fidell).
---------------------------------------------------------------------------
THE FERES DOCTRINE AS APPLIED TO MILITARY PERSONNEL CLAIMS OF MEDICAL
MALPRACTICE
Lower courts have consistently interpreted Feres to bar
FTCA claims by service members--including reservists and
members of the national guard\62\--arising from medical
malpractice by government (usually military) healthcare
providers.\63\ Generally, no significance has been attached to
whether the service member was on- or off-duty when harmed.\64\
Only claims arising from post-discharge medical care--usually
at veterans' hospitals--have escaped the Feres bar.\65\
---------------------------------------------------------------------------
\62\See, e.g., Gremlich v. U.S. Dep't of Army, Civ. A. No. 89-8292,
1990 WL 204245, at 3-4 (E.D. Pa. Dec. 11, 1990), and cases cited
therein.
\63\See, e.g., Brown v. United States, 415 Fed. App. 411, 413-14
(2006); France v. United States, 225 F.3d 658 (table), 2000 WL 1033020
(6th Cir. July 18, 2000); Sloan v. United States, 208 F.3d 218 (table),
2000 WL 307264 (8th Cir. Mar. 27, 2000); Matthew v. United States, 452
F. Supp. 2d 433, 439 (S.D.N.Y. 2006). Courts have split as to the
ability of service members to sue under the FTCA under some types of
military status--for example, those on a ``temporary disability retired
list'' (TDRL). See, e.g., Bradley v. United States, 161 F.3d 777, 782
(4th Cir. 1998).
\64\See, e.g., Borden v. Veterans Admin., 41 F.3d 763, 763-64 (1st
Cir.1994) (holding that Feres barred suit arising from malpractice
suffered by active-duty member of armed services while ``off duty'').
\65\See United States v. Brown, 348 U.S. 110 (1954). The line
between pre- and post-discharge acts of malpractice is easily drawn in
most cases. But see Brown, 451 Fed. App. at 415-16 (addressing
allegations of both pre- and post-discharge negligence by military
doctors). A few cases deal with pre-induction malpractice. See, e.g.,
Bowers v. United States, 904 F.2d 450, 452 (8th Cir. 1990) (suit to
redress malpractice during pre-induction physical held barred by
Feres).
---------------------------------------------------------------------------
The preclusive effect of Feres on medical malpractice
claims has drawn especially strong criticism. The reasons
include: (1) the relative prevalence of medical malpractice at
medical facilities operated by the Department of Defense;\66\
(2) the status of military medical care (at least outside the
combat context) as an activity largely ``collateral'' to the
military's core functions;\67\ (3) the apparent unfairness of
allowing the dependants of service members to sue under the
FTCA when they receive negligent medical care by military
healthcare providers, but denying service members themselves
the same right;\68\ and (4) the absence of any compelling
military justification to preclude FTCA suits involving
malpractice.\69\
---------------------------------------------------------------------------
\66\See, e.g., Jonathan Turley, The Feres Doctrine: What Soldiers
Really Need Are Lawyers, USA Today, Aug. 18, 2007; see also Jonathan
Turley, Pax Militaris: The Feres Doctrine and the Retention of
Sovereign Immunity in the Military System of Governance, 71 Geo. Wash.
L. Rev. 1, 43-47 (2003). The case of Carmelo Rodriguez, after whom H.R.
1478 is named, was addressed at the hearing. See, e.g., Byron Pitts,
Case Sheds Light on Military Law, CBS News, May 19, 2008, http://
www.cbsnews.com/stories/2008/05/19/eveningnews/main4109454.shtml. For
other disturbing examples appearing in the hearing record, see 2009
Subcommittee Hearings at 236-41 (letter from Adele Connell, Colonel,
United States Army, dated March 24, 2009) (documenting a botched
operation at Walter Reed Army Medical Center that resulted in removal
of the wrong breast); id. at 242-43 (letter from Alexis Witt, wife of
SSGT Dean Patrick Witt, dated March 23, 2009) (describing a routine
appendix removal at Travis Air Force base that, because of medical
malpractice, resulted in the patient being deprived of oxygen for over
15 minutes and ultimately rendered him brain dead).
\67\Jonathan Turley, Pax Militaris: The Feres Doctrine and the
Retention of Sovereign Immunity in the Military System of Governance,
71 Geo. Wash. L. Rev. 1, 43-47 (2003).
\68\See, e.g., 2009 Subcommittee Hearings at 152, 233 (written
statement and answers to questions for record of Eugene R. Fidell).
\69\See, e.g., id. at 100-04 (written statement of Stephen
Saltzburg).
---------------------------------------------------------------------------
With respect to the last point, supporters of legislation
like H.R. 1478 emphasize that whatever the persuasiveness of
the military-discipline argument as a general matter, it has no
application in the context of medical malpractice--with the
possible exception of where the malpractice arises from combat-
related medical care. H.R. 1478 recognizes this exception by
including an express provision in the bill making such combat-
related claims non-actionable.\70\ During the legislative
hearing on H.R. 1478, Professor Stephen Saltzburg testified on
behalf of the ABA that ``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.''\71\ Mr. Fidell testified similarly at
an earlier congressional hearing that ``issues of malpractice .
. . have nothing whatever to do with military discipline or any
notions of command or unit cohesion.''\72\ Mr. Fidell added in
his response to questions for the record following the
Subcommittee's hearing that military physicians are already
subject to oversight by State medical licensing
authorities.\73\
---------------------------------------------------------------------------
\70\See, e.g., id. at 102 (written statement of Stephen Saltzburg).
\71\Id. at 97 (testimony of Stephen A. Saltzburg).
\72\The Feres Doctrine: An Examination of this Military Exception
to the Federal Tort Claims Act: Hearing before the S. Comm. on the
Judiciary, 107th Cong. 15 (2002) (statement of Eugene R. Fidell).
\73\See 2009 Subcommittee Hearings at 233 (answers to questions for
record of Eugene R. Fidell).
---------------------------------------------------------------------------
Nonetheless, supporters of the Feres doctrine generally
oppose any exception for medical malpractice claims. At the
Subcommittee hearing, retired Major General Altenburg explained
that his opposition to legislation like H.R. 1478 rests largely
on his belief that it would be unfair to provide FTCA remedies
for service members harmed as a result of medical malpractice,
while denying them to service members harmed during combat (and
in the performance of other military related activities).\74\
He called this disparate treatment a form of ``discriminatory
favoritism.''\75\ Mr. Fidell countered that
---------------------------------------------------------------------------
\74\Id. at 123 (testimony of John D. Altenburg, Jr.).
\75\Id. at 139 (written statement of John D. Altenburg, Jr.).
[t]he risk of injury and death in combat is clearly
something military personnel know to expect. . . . But
medical malpractice is not part of the mission; it is
something that happens (unfortunately) in civilian
life, and when it does, our system of tort law permits
recovery. . . . To the extent that there is nothing
peculiarly military to medical malpractice, the better
analogy is to the treatment afforded to all Americans,
rather than the quite different treatment the law
provides to serving personnel for combat-related
injuries. . . . The fact that we do not afford a damage
remedy for death or injury . . . at the hands of the
enemy is not a reason to deny such a remedy to GIs who
have no effective choice of medical providers.\76\
---------------------------------------------------------------------------
\76\Id. at 234 (answers to questions for record of Eugene R.
Fidell).
---------------------------------------------------------------------------
Hearings
The Subcommittee on Commercial and Administrative Law held
a legislative hearing on H.R. 1478 on March 24, 2009.\77\
Testimony was received from the following five witnesses:
retired Major General John D. Altenburg, Jr., a former Deputy
Judge Advocate General of the United States Army and of counsel
at Greenberg Traurig, LLP; Eugene R. Fidell, the Florence
Rogatz Visiting Lecturer at Yale Law School, the President of
the National Institute of Military Justice, and of counsel to
the law firm of Feldesman Tucker Leifer Fidell LLP; Ivette
Rodriguez, the sister of Carmelo Rodriguez, the deceased Marine
sergeant after whom H.R. 1478 is named; and Stephen A.
Saltzburg, the Wallace and Beverley Woodbury Professor of Law
at the University of Virginia Law School, a member of the House
of Delegates of the American Bar Association, and the co-chair
of the ABA's Military Justice Committee of the Criminal Justice
Section. Professor Saltzburg testified on behalf of the ABA.
The sponsor of H.R. 1478, Representative Maurice Hinchey (D-
NY), testified on a separate panel.
---------------------------------------------------------------------------
\77\H.R. 1478, the Carmelo Rodriguez Military Medical
Accountability Act of 2009: Hearing Before the Subcomm. on Com. and
Admin. Law of the H. Comm. on the Judiciary, 111th Cong. (2009).
---------------------------------------------------------------------------
Since the 1980's, there have been four Congressional
hearings\78\ and several bills introduced regarding the Feres
doctrine.\79\ In 1987, legislation similar to H.R. 1478 passed
the House by vote of 312-61.\80\
---------------------------------------------------------------------------
\78\See The Feres Doctrine: An Examination of this Military
Exception to the Federal Tort Claims Act: Hearing before the S. Comm.
on the Judiciary, 107th Cong. (2002); Claims for Negligent Medical Care
Provided Members of the Armed Forces: Hearing Before the Subcomm. on
Admin. Law and Gov't Rel. of the H. Comm. on the Judiciary, 102nd Cong.
(1991); Medical Malpractice Suits for Armed Services Personnel:
Hearings Before the Subcomm. on Courts and Admin. Practice of the S.
Comm. on the Judiciary, 100th Cong. (1988); Military Medical
Malpractice: Hearing Before the Subcomm. on Admin. Law and Gov't Rel.
of the H. Comm. on the Judiciary, 99th Cong. (1985).
\79\See Carmelo Rodriguez Military Medical Accountability Act of
2008, H.R. 6093, 110th Cong. (2008); H.R. 2684, 107th Cong. (2001);
H.R. 1054, 100th Cong. (1987).
\80\H.R. 1054, 100th Cong. (1987).
---------------------------------------------------------------------------
Committee Consideration
On May 19, 2009, the Subcommittee on Commercial and
Administrative Law met in open session and ordered the bill
H.R. 1478 favorably reported, as amended, by a rollcall vote.
On October 7, 2009, the Committee met in open session and
ordered the bill H.R. 1478 favorably reported as amended by the
Subcommittee, by a rollcall vote of 14 to 12, a quorum being
present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1478:
1. An amendment offered by Mr. King to limit attorney's
fees to 15% of any judgement rendered, and 10% of any
settlement. Defeated 18 to 13.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Mr. Gutierrez...................................................
Mr. Sherman..................................................... X
Ms. Baldwin.....................................................
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 13 18
----------------------------------------------------------------------------------------------------------------
2. An amendment offered by Mr. Franks to strike the
proposed section 2681 and insert a GAO study on the currently
available benefits for service members injured or killed as a
result of medical malpractice, the medical malpractice claims
against the Department of Defense in the last 5 years brought
under the FTCA, and the current procedures to evaluate and
discipline medical providers whose care falls below the minimum
standard of care. Defeated 16 to 11.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Mr. Gutierrez...................................................
Mr. Sherman..................................................... X
Ms. Baldwin.....................................................
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 11 16
----------------------------------------------------------------------------------------------------------------
3. On reporting the bill as amended, approved 14 to 12.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes......................................................
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper...................................................... X
-----------------------------------------------
Total....................................................... 14 12
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1478, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 20, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1478, the Carmelo
Rodriguez Military Medical Accountability Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Schmit, who can be reached at 226-2840.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 1478--Carmelo Rodriguez Military Medical Accountability Act of
2009
SUMMARY
H.R. 1478 would amend the Federal Tort Claims Act (FTCA) to
allow members of the Armed Forces to bring suit against the
Federal Government for damages related to malpractice by
government medical personnel. CBO estimates that enacting H.R.
1478 would increase direct spending from the Judgment Fund by
$2.7 billion over the 2010-2019 period. Enacting H.R. 1478
would not affect revenues and would have an insignificant
effect on spending subject to appropriation.
Pursuant to section 311 of the Concurrent Resolution on the
Budget for Fiscal Year 2009 (S. Con. Res. 70), CBO estimates
H.R. 1478 would increase projected deficits by more than $5
billion in at least one of the four consecutive 10-year periods
starting in 2020.
H.R. 1478 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of State, local, or tribal
governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 1478 is shown in the
following table. The costs of this legislation fall primarily
within budget function 800 (general government).
By Fiscal Year, in Millions of Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2010-2014 2010-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Estimated Budget Authority 90 290 430 430 360 260 200 190 200 220 1,600 2,670
Estimated Outlays 90 290 430 430 360 260 200 190 200 220 1,600 2,670
--------------------------------------------------------------------------------------------------------------------------------------------------------
BASIS OF ESTIMATE
H.R. 1478 would amend the FTCA to allow members of the
Armed Forces to bring suit against the Federal Government for
damages related to malpractice by government medical personnel.
Servicemembers are currently blocked from pursuing such claims
as a result of a 1950 Supreme Court decision (Feres v. United
States). This amendment to the FTCA would apply retroactively
to claims arising on or after January 1, 1997. CBO estimates
that enacting H.R. 1478 would increase direct spending from the
Judgment Fund (a permanent indefinite appropriation) by $2.7
billion over the 2010-2019 period. This estimate assumes that
H.R. 1478 will be enacted early in fiscal year 2010.
While Feres v. United States effectively blocks
servicemembers from filing malpractice claims against the
Department of Defense (DoD) for care received during the course
of active duty, others who use military health facilities and
physicians (primarily dependents, military retirees, and
survivors) are not prohibited from doing so. Using claims data
from those other populations, and adjusting for the fact that
active-duty members utilize DoD health facilities for a larger
portion of their overall health care, CBO estimates that H.R.
1478 would increase the number of medical malpractice claims
against DoD by about 750 per year. Based on those same data, we
estimate that about one-third, or 250 claims, would result in
monetary settlements or awards.
Because H.R. 1478 would allow servicemembers to file
malpractice claims for care received while on active duty on or
after January 1, 1997, CBO expects there would be a surge of
claims in the first several years after enactment. However, CBO
assumes the probability that former members would file and
pursue malpractice claims decreases proportionately with the
amount of time between the medical care they received and the
enactment date of this bill. Some claims would probably be
settled by the government soon after they are filed, while CBO
estimates others would take up to five years after the claims
are filed before payments from the Judgment Fund would occur.
This lag accounts for the time needed for litigation, and is
based on an analysis of DoD data on malpractice claims for
dependents and retirees. In total, CBO estimates that awards
for 4,100 medical malpractice claims against DoD would be paid
over the 2010-2019 period if H.R. 1478 is enacted. Of those,
about half would be for incidents that occurred prior to fiscal
year 2010.
Using data compiled by DoD on payments related to
malpractice claims by military retirees and dependents, CBO
estimates the average monetary award would be about $450,000
for payments that occur in 2010. While our analysis of the data
indicate that most of the monetary settlements and awards would
be substantially less than this, a small number of cases would
result in settlements and awards in the millions of dollars
each. Going forward, CBO estimates that average award amounts
would increase by about 7 percent each year, based on an
analysis of the growth of average medical malpractice payments
since 1986.
The FTCA does allow Federal agencies to settle cases with
monetary values less than $2,500. In those instances, the
amounts would be paid from discretionary funds, although in the
case of H.R. 1478, CBO estimates those amounts would total less
than $500,000 annually.
IMPACT ON LONG-TERM DEFICITS
Pursuant to section 311 of the Concurrent Resolution on the
Budget for Fiscal Year 2009 (S. Con. Res. 70), CBO estimates
H.R. 1478 would increase projected deficits by more than $5
billion in at least one of the four consecutive 10-year periods
starting in 2020.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 1478 contains no intergovernmental or private-sector
mandates as defined in UMRA and would not affect the budgets of
State, local, or tribal governments.
Estimate prepared by: Federal Costs: Matthew Schmit. Impact
on State, Local, and Tribal Governments: Burke Doherty. Impact
on the Private Sector: Elizabeth Bass.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1478 amends the Federal Tort Claims Act to modify the
government's sovereign immunity, allowing service members to
sue the United States for damages when they are harmed by
medical malpractice committed by government-employed or -
directed healthcare providers, with an exception for claims
arising out of combatant activities in times of armed conflict.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds authority for
this legislation in article I, section 8, clause 16 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1478 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9 of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``Carmelo Rodriguez Military Medical
Accountability Act of 2009.''
Sec. 2. Allowance of Claims by Members of the Armed Forces
Against the United States for Certain Injuries Caused by
Improper Medical Care. Section 2(a) of the bill amends chapter
171 of title 28 of the United States Code by adding a new
section 2681 (``Certain Claims by members of the Armed Forces
of the United States'').
Section 2681(a) authorizes suit against the United States
under the FTCA for ``claims arising out of a negligent or
wrongful act or omission in the performance of medical, dental,
or related health care functions . . . that is provided by a
person acting within the scope of the office or employment of
that person or by or at the direction of the Government of the
United States, whether inside or outside of the United
States.''
Section 2681(b) provides that any damages award in an FTCA
suit covered by section 2681(a) ``shall not be reduced by the
amount of any benefit received under subchapter III (relating
to Servicemembers' Group Life Insurance) of chapter 19 of title
38'' of the United States Code.
Section 2681(c) provides that section 2681(a) does ``not
apply to any claim arising out of the combatant activities of
the Armed Forces during time of armed conflict.''
Section 2681(d) provides that the exclusions in 28 U.S.C.
Sec. 2680(j) and (k) do not apply to any FTCA claim brought
under 28 U.S.C. Sec. 2681(a). Section 2680(j) excludes claims
``arising out of the combatant activities of the military or
naval forces, or the Coast Guard, during time of war''; section
2680(k) excludes ``any claim arising in a foreign country.''
These exclusions are replaced, for actions under section
2681(a), by the exclusion in section 2681(c).
Section 2681(d) also provides that a claim arising from
acts or omissions that occur outside of the United States is
governed by the substantive ``law of the place of domicile of
the plaintiff.''
Section 2681(e) defines the phrase ``negligent or wrongful
act or omission in the performance of medical, dental, or
related healthcare functions'' (as used in 28 U.S.C. 2681(a))
to have the same meaning given to the term under 10 U.S.C.
Sec. 1089(e). Section 1089 governs medical malpractice claims
against military, defense, or intelligence personnel. The
phrase appears in section 1089(e), which makes 28 U.S.C.
Sec. 2680(h) inapplicable to claims under the FTCA. Section
2680(h) is the exception to the FTCA for suits based on
intentional torts, including assault and battery. By
incorporating the phrase from section 1089(e) and referencing
that section, section 2681(e) allows malpractice suits
notwithstanding the intentional tort exception to the FTCA
found in section 2680(h).
Section 2(b) of the bill makes a technical and conforming
amendment, adding section 2681 to the table of sections for
chapter 171 of title 28 U.S.C.
Section 2(c) of the bill provides that the amendments made
by section 2(a) will apply to claims arising on or after
January 1, 1997, and that any period of limitation on such a
claim arising before the date of enactment shall begin to run
on that date of enactment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART VI--PARTICULAR PROCEEDINGS
* * * * * * *
CHAPTER 171--TORT CLAIMS PROCEDURE
Sec.
2671. Definitions.
* * * * * * *
2681. Certain claims by members of the Armed Forces of the United
States.
* * * * * * *
Sec. 2681. Certain claims by members of the Armed Forces of the United
States
(a) A claim may be brought against the United States under
this chapter for damages relating to the personal injury or
death of a member of the Armed Forces of the United States
arising out of a negligent or wrongful act or omission in the
performance of medical, dental, or related health care
functions (including clinical studies and investigations) that
is provided by a person acting within the scope of the office
or employment of that person by or at the direction of the
Government of the United States, whether inside or outside the
United States.
(b) A claim under this section shall not be reduced by the
amount of any benefit received under subchapter III (relating
to Servicemembers' Group Life Insurance) of chapter 19 of title
38.
(c) This section does not apply to any claim arising out of
the combatant activities of the Armed Forces during time of
armed conflict.
(d) For purposes of claims brought under this section--
(1) subsections (j) and (k) of section 2680 do not
apply; and
(2) in the case of an act or omission occurring
outside the United States, the ``law of the place where
the act or omission occurred'' shall be deemed to be
the law of the place of domicile of the plaintiff.
(e) As used in this section, the term ``a negligent or
wrongful act or omission in the performance of medical, dental,
or related health care functions (including clinical studies
and investigations)'' has the same meaning given that term for
purposes of section 1089(e) of title 10.
* * * * * * *
DISSENTING VIEWS
It is unquestionable that Congress has a duty to ensure
that the members of this country's armed forces receive the
highest quality medical care possible. However, because H.R.
1478 will not make any significant contribution towards
improving the quality of military medicine and will undermine
military morale and effectiveness, we must oppose this bill.
The issue this bill presents is not whether service members
should receive compensation for injuries resulting from medical
malpractice. They already receive no-fault compensation through
the Departments of Defense and Veterans Affairs. The issue also
is not whether military medical personnel will be held
accountable for medical malpractice. They already are held
accountable up to and including the possibility of court
martial. Rather, the issue this bill presents is whether any
flaws in the current system for compensating service members
for malpractice related injuries should be addressed by forcing
the men and women of the armed services to resort to
litigation. Litigation, however, is not the answer.
First, there appears to be no correlation between medical
malpractice damage awards in the civilian sector and
improvements in the quality of care provided. In fact, the
litigation-created malpractice crisis is one of the major
problems facing the practice of medicine in this country. The
major beneficiaries of the civilian malpractice crisis are not
this nation's patients, but the trial lawyers who garner large
contingency fees. The same results can be expected for the
military medical system if this legislation is enacted.
What is more, H.R. 1478 would create the anomaly of
offering a tort remedy to a service member who is injured
through a medical mistake, while denying the same compensation
to one who is injured in combat. This could demean injuries
suffered in combat by providing the soldier injured on the
battlefield with administrative compensation, while allowing
the soldier injured in a military hospital to seek a multi-
million dollar damage award in federal court. Such a result is
fundamentally unfair to those injured in combat.
Furthermore, under this legislation, recovery will depend
on 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 needed to
preserve military morale. One of the chief benefits of the
existing statutory compensation system is that comparable
injuries are treated uniformly throughout the military.
This legislation, moreover, will inject tort litigation and
defensive medicine into military medical readiness and health
assessment determinations. Because of the nature of the
military, the medical system interacts with the individual
patient to a much greater extent than in the civilian world.
Health screenings and assessments, limitations on duty,
eligibility for deployment, annual physicals, fitness for duty
determinations, specialized evaluations for pilots, indigenous
disease vaccinations, biological defense countermeasures,
mental health evaluations, and other interactions are the
everyday work of the military medical system. And while these
medical interactions are usually far removed from the
battlefield, they are essential to effective military
operations. Every such interaction would be a potential tort
claim for which defenses would need to be planned and defensive
medicine practiced, threatening to re-delegate military medical
readiness from medical professionals and military commanders to
civilian lawyers and judges.
There are many more problems with this legislation, but the
bottom-line is that if Congress believes that the current
military compensation system is inadequate or is producing
unfair results, we should work to correct that system. We
should increase funding and make needed reforms. There is no
excuse for providing our troops less compensation than they
deserve. However, repealing the Feres doctrine for medical
malpractice injuries is not the solution. This country can
provide our service members with the meaningful benefits they
need without making the brave men and women that serve resort
to litigation. In short, our focus should not be on allowing
litigation, but on improving the overall military disability
compensation system for all of this country's service members.
BACKGROUND
The Federal Tort Claims Act (FTCA)\1\ permits the
government to be sued for injuries caused by the negligence of
government employees, acting within the scope of their
employment, to the same extent that a private individual would
be liable for such negligence.\2\ For members of the armed
services who are injured ``incident to service,'' however, the
government's liability under the FTCA is subject to an
exception carved out in Feres v. United States.\3\ In Feres, a
unanimous Supreme Court held that ``the Government is not
liable under the Federal Tort Claims Act for injuries to
servicemen where the injuries arise out of or are in the course
of activity incident to service.''\4\ This exception is known
as the Feres doctrine.\5\ Although the FTCA contains no
explicit exclusion for injuries sustained by military personnel
incident to service, such an exclusion results from construing
the FTCA ``to fit, so far as will comport with its words, into
the entire statutory scheme of remedies against the Government
to make a workable, consistent and equitable whole.''\6\
---------------------------------------------------------------------------
\1\28 U.S.C. Sec. Sec. 1346(b), 2671-2680.
\2\See 28 U.S.C. Sec. 1346(b). The doctrine of sovereign immunity
protects the United States government from liability for the tortious
acts of its agents or employees. Under this doctrine, the federal
government is immune from liability unless it consents to be sued,
United States v. Sherwood, 312 U.S. 584 (1941), and it may define the
terms and conditions upon which it may be sued, Soriano v. United
States, 352 U.S. 270 (1957).
\3\340 U.S. 135 (1950).
\4\Id. at 146.
\5\In addition to the Feres doctrine, there are two other major
exceptions under which the United States may not be held liable under
the FTCA: the discretionary function exception, which immunizes the
United States for acts or omissions of its employees that involve
policy decisions, and the intentional tort exception, which precludes
suits against the United States for assault, battery, and other
intentional torts, unless they are committed by federal law enforcement
or investigative officials.
\6\340 U.S. at 139.
---------------------------------------------------------------------------
In Feres and its progeny, the Supreme Court has provided
four principal rationales for the doctrine:
1) LThe existence and availability of a separate,
uniform, comprehensive, no-fault compensation scheme
for injured military personnel;
2) LThe effect upon military order, discipline, and
effectiveness if service members were permitted to sue
the government and each other;
3) LThe distinctly federal relationship between the
government and members of its armed services and the
corresponding unfairness of permitting service-
connected claims to be determined by non-uniform local
law; and
4) LThe absence of parallel private liability. Rather
than creating new causes of action, the FTCA was
designed to make the government liable to the same
extent as private individuals under like circumstances.
No cause of action had existed prior to the FTCA
permitting a serviceman to sue his superior officers
for negligence. Moreover, because private individuals
cannot maintain armies, the Court determined that there
were no ``like circumstances'' under which private
individuals could be deemed liable.
The holding of Feres has been continually and persuasively
applied by the courts and has now stood for 59 years without
either legislative or judicial alteration.\7\ H.R. 1478 would
narrow the Feres doctrine so that it would not apply to suits
for ``damages relating to personal injury or death of a member
of the Armed Forces of the United States arising out of a
negligent or wrongful act or omission in the performance of
medical, dental, or related health care functions (including
clinical studies and investigations) [by a person working for
or at the direction of the United States].''
---------------------------------------------------------------------------
\7\See United States v. Johnson, 481 U.S. 681 (1987); United States
v. Stanley, 483 U.S. 669 (1987); Chappell v. Wallace, 462 U.S. 296
(1983); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666
(1977).
---------------------------------------------------------------------------
DISCUSSION
Although it is sometimes argued that the Feres doctrine is
unfair to service members who are the victims of medical
malpractice, there are several sound reasons for maintaining
the Feres bar, even in military medical malpractice cases:
LEliminating the Feres Doctrine Will Erode
Uniformity. H.R. 1478 will create a privileged class of
claimants within the armed services whose right to
recover depends upon where they were injured and not on
the injury they suffered. Selective special
compensation falls short of the even-handed fairness
that must be exercised to preserve military morale. As
the Supreme Court has noted, ``to accomplish its
mission the military must foster instinctive obedience,
unity, commitment, and esprit de corps.''\8\
Accordingly, the Court has held that,
---------------------------------------------------------------------------
\8\Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
LEven if military negligence is not specifically
alleged in a tort action, a suit based upon service-
related activity necessarily implicates the military
judgments and decisions that are inextricably
intertwined with the conduct of the military mission.
Moreover, military discipline involves not only
obedience to orders, but more generally duty and
loyalty to one's service and to one's country. Suits
brought by service members against the Government for
service-related injuries could undermine the commitment
essential to effective service and thus have the
potential to disrupt military discipline in the
broadest sense of the word.\9\
---------------------------------------------------------------------------
\9\United States v. Johnson, 481 U.S. 681, 691 (1987).
LMedical malpractice injuries versus combat
injuries. This bill would create a situation in which
service members who lose a limb through medical
malpractice will receive extra, and in some cases quite
substantial, tort compensation whereas service members
who lose a limb in combat will receive only
administrative compensation. 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.
LSoldiers will receive different
compensation depending upon where they are stationed.
Because the FTCA bases liability on state law, a marine
stationed in California might recover, but another
marine, subject to a different body of law in North
Carolina, might not. Both marines, however, would have
one thing in common: their duty stations are the result
of military orders, not their personal choice.
LLitigation process will be disruptive to
military operations. Superimposing the adversarial
process of civil litigation onto the Armed Forces, even
in the limited area of medical malpractice, will have a
disruptive influence on military operations. The
litigative process itself assures this result: military
plaintiffs and witnesses will be summoned to attend
depositions and trials, they will have to take time
away from their regularly assigned duties to confer
with counsel and investigators, and they may have to be
recalled from distant posts. As the Ninth Circuit has
noted, ``it is the suit, not the recovery, that would
be disruptive of discipline and the orderly conduct of
military affairs.''\10\
---------------------------------------------------------------------------
\10\Henniger v. United States, 473 F.2d 814, 815-16 (9th Cir.
1973).
LMoreover, allowing medical malpractice suits to be
filed by service members is likely to disrupt military
operations by injecting tort litigation and defensive
medicine into all matters of military medical readiness
and health assessment. Because of the nature of the
military enterprise, the medical system interacts with
the individual patient to a much greater extent than in
the civilian world. Health screenings and assessments,
limitations on duty, eligibility for deployment, annual
physicals, fitness for duty determinations, specialized
evaluations for certain members (such as pilots and
nuclear program personnel), indigenous disease
vaccinations, biological defense countermeasures,
protection from environmental exposures, mental health
evaluations, and other interactions are the everyday
work of the military medical system and, while usually
far removed from the battlefield, are essential to
effective military operations. Every such interaction
would be a potential tort claim for which defenses
would need to be planned and readied and defensive
medicine practiced, threatening to re-delegate military
medical readiness from medical professionals and
---------------------------------------------------------------------------
military commanders to civilian lawyers and judges.
LThe military compensation program provides a
comprehensive, no-fault system. One of the primary
reasons that members of the armed services are not
permitted to sue under the FTCA for service related
injuries is because of the military's no-fault,
administrative compensation programs. The statutory
compensation scheme has three components:
LFirst, service members serving on active
duty receive free medical care when injured or ill and
they receive unlimited sick leave with full pay and
allowances until well or released from active duty.
Survivors of service members are entitled to death
gratuity benefits, as well as subsidized life
insurance.
LSecond, there is a comprehensive disability
retirement system for service members permanently
injured in the line of duty.
LThird, the Veterans Administration provides
yet another system of medical care, disability, and
death benefits for service-disabled veterans and their
families.
LRepeal of the Feres doctrine would destroy
the premise of the no-fault compensation system
currently applicable to all workers' compensation
programs, including military compensation programs. All
State and Federal workers' compensation laws provide a
no-fault compensation system as the exclusive remedy
for work-related injuries. Employees may not sue the
employer to seek larger recoveries, but employees will
be compensated even if there was no negligence or the
injured employee was negligent. Federal civilian
employees and all private sector employees are covered
by such no-fault workers' compensation systems; they
cannot sue their employer for injuries covered by
workers' compensation. The military disability
compensation system has the same premise, except that
military members are considered to be ``on duty'' 24-
hours a day. Their no-fault compensation applies to
virtually all injuries at work or at home, and they may
not sue their employer (the United States) for any
injuries. This legislation would destroy that premise,
central to all employment-related compensation systems.
LMoreover, as the Department of Justice pointed out
in testimony before the Senate Judiciary Committee
during the 107th Congress:
LWhile it is sometimes argued that the Feres
doctrine is unfair to service members who are the
victims of medical malpractice, as we have seen, the
Feres doctrine is an adjunct to a military disability
compensation package available to service members
which, on the whole, is far more generous, even-handed,
and fair than compensation available to private
citizens under analogous state workers' compensation
schemes. This is because service members, unlike their
civilian counterparts who suffer serious adverse
consequences from medical care, generally are eligible
for compensation whether or not those consequences are,
or can be proven to be, the result of substandard
medical care. While, in certain cases, the compensation
may be somewhat less than what might be available to a
successful plaintiff who endures a medical malpractice
lawsuit (just as workers' compensation systems
generally provide lower benefits for work-related
injuries than what might be available through tort
litigation), the fact is that all of these service
members are eligible for such compensation rather than
only a small handful who can show a causal link between
their condition and substandard medical care. The
arbitrariness and uncertainty associated with tort
litigation is eliminated. Accordingly, from the
perspective of all service members who suffer adverse
consequences from medical care, the existing system of
compensation is in many ways superior to what they
would receive if they were private citizens.\11\
---------------------------------------------------------------------------
\11\The Feres Doctrine: An Examination of the Military Exception to
the Federal Tort Claims Act: Hearing Before S. Comm. on the Judiciary,
107th Cong. (2002) (statement of Paul Clinton Harris, Deputy Associate
Attorney General).
LLawsuits will not improve military medicine.
Some assert that allowing malpractice claims will
improve military medicine because of the threat of
suit. However, this proposition cannot withstand close
analysis. First, FTCA suits are permitted for
approximately 70 percent of the patient population at
military medical facilities (e.g., retirees and
dependents of active-duty personnel). It defies belief
to assert that allowing tort claims by the remaining 30
percent would achieve any beneficial effect upon the
quality of health care. Any argument that military
physicians provide better care to those who may sue for
malpractice is a gratuitous insult to military
physicians. Second, medical malpractice liability would
impose costs on the military medical system that would
take away from the funding otherwise available to be
put towards improved medical care. The Congressional
Budget Office has given this legislation a preliminary
score of $2.9 billion over the next 10 years--that is
$2.9 billion that could be better spent by putting that
money back into the military medical system to make
---------------------------------------------------------------------------
improvements for all patients.
LMedical malpractice tort litigation has
raised the cost of health care in the civilian setting.
Superimposing tort litigation on the military medical
system will also impose excessive costs on military
health care. According to Princeton University
economist Uwe Reinhardt, a primary driver of American
health care costs are ``higher treatment costs
triggered by our uniquely American tort laws.''\12\ The
question this presents is whether service members would
be better served by being allowed to file tort suits
for malpractice claims or by increasing funding and
making other improvements to the current comprehensive,
no-fault system. It would seem that improving the
current compensation system provided by the Departments
of Defense and Veterans Affairs would be a better
answer than introducing litigation into the military
medical setting.
---------------------------------------------------------------------------
\12\Uwe Reinhardt, Why Does U.S. Health Care Cost So Much? (Part
I), N.Y. Times (November 14, 2008); see also, e.g., Editorial, Our View
on `Defensive' Medicine: Lawyers' Bills Pile High, Driving Up Health
Care Costs, USA Today, December 29, 2008 (``A study last month by the
Massachusetts Medical Society found that 83% of its doctors practice
defensive medicine at a cost of at least $1.4 billion a year.
Nationally, the cost is $60 billion-plus, according to the Health and
Human Services Department.'').
LThe cost to taxpayers of H.R. 1478 will be in
the billions, with the trial bar being a principal
beneficiary. The Congressional Budget Office (CBO) has
given H.R. 1478 a preliminary score of $2.9 billion
over the next ten years. Additionally, the FTCA allows
plaintiffs' attorneys to charge contingency fees of up
to 25 percent of the amount awarded. As a result, based
on CBO's score, up to $725 million of these awards will
---------------------------------------------------------------------------
be going to the trial bar, not to service members.
LH.R. 1478 has an unreasonable retroactive
effective date of January 1, 1997. Statutes of
limitations help avoid circumstances in which evidence
is incomplete, documents have disappeared and testimony
relies on faded memories. Allowing military medical
malpractice claims that date back to 1997 will clearly
put in play all of these circumstances that statutes of
limitations are designed to avoid. For instance, in
many of these cases the armed services have likely
already disposed of the medical records as part of
normal document retention policies. Even if the medical
records still exist, memories of the events and
circumstances surrounding the alleged malpractice will
often have faded.
REPUBLICAN AMENDMENTS
Republican Members offered three amendments to H.R. 1478 at
the Committee markup. The first two Republican amendments were
rejected and the third was withdrawn:
LKing Amendment. Mr. King offered an amendment
to adjust the current 25 percent cap on fees in
litigated Federal Tort Claims Act cases down to 15
percent and the current 20 percent cap on fees in
settled cases to 10 percent. The purpose of the
amendment was to maximize the recoveries that service
members would receive in medical malpractice cases
brought pursuant to H.R. 1478.
LFranks Amendment. Mr. Franks offered an
amendment to require the General Accountability Office
(GAO) to conduct a study of several issues related to
medical malpractice by military medical personnel
before repealing the Feres doctrine for medical
malpractice claims. The Committee only held one
subcommittee hearing on this legislation prior to
markup and neither the Department of Defense nor the
Department of Justice testified at that hearing. Mr.
Franks' amendment would put a reasonable hold on H.R.
1478 so that GAO could conduct a study of the current
system to provide Congress with at least some of the
information needed to make an educated decision on
whether to repeal the Feres doctrine for medical
malpractice claims.
LRooney Amendment. Mr. Rooney offered an
amendment to make clear that the exclusion for
``combatant activities'' contained in the subcommittee
amendment to H.R. 1478 also includes training
activities. In many instances, the same factors that
weigh in favor of excluding combatant activities from
medical malpractice-related liability will also be
present for training activities. Mr. Rooney withdrew
his amendment with assurances that consideration for
his concerns regarding training activities would be
included in the bill before it reaches the floor.
CONCLUSION
A recent article in Legal Times noted that H.R. 1478 is the
first ``preview of the coming fight'' in Congress on behalf of
the trial lawyers ``over proposals that would open new areas
for civil litigation.''\13\ That article further surmises that
the trial lawyers are ``testing whether they can translate
their newfound political capital into legislative
victories.''\14\ However, the trial lawyers' interests in
creating more lawsuits and service members' interests in
receiving the best medical benefits possible almost certainly
do not merge when it comes to modifying the Feres doctrine. As
General John D. Altenburg, the former Deputy Judge Advocate
General of the Army, reasoned at the subcommittee hearing on
H.R. 1478, ``creating a special right to sue is not what will
improve medical benefits.''\15\ In other words, if military
medical benefits and disability compensation are inadequate,
allowing lawsuits is not the answer. Rather, Congress should be
looking to improve the military medical benefits and
compensation systems instead of turning matters over to the
trial bar.
---------------------------------------------------------------------------
\13\David Ingram, Plaintiffs Bar Pushes Capitol Hill Agenda, Legal
Times, March 31, 2009.
\14\Id.
\15\H.R. 1478, the ``Carmelo Rodriguez Military Medical
Accountability Act of 2009'': Hearing Before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 111th Cong.
(2009) (statement of General John D. Altenburg, Jr. USA (Retired)).
---------------------------------------------------------------------------
As General Altenburg stated in his written testimony from
the subcommittee hearing on H.R. 1478,
LCongress can better serve our service members and
their families by improving benefits, by eliminating
disparities and inequities, and by increasing
compensation to better approximate damage recoveries of
civil lawsuits. . . . Lawsuits are not the answer to
what is admittedly a problem. America's fighting men
and women and their families need meaningful and
responsible compensation benefits . . . that can be
timely delivered in a non-adversarial administrative
forum with appropriate checks and balances, without
making our brave service members resort to
litigation.\16\
---------------------------------------------------------------------------
\16\Id.
Lamar Smith.
F. James Sensenbrenner, Jr.
Elton Gallegly.
Bob Goodlatte.
Darrell E. Issa.
Steve King.
Trent Franks.
Ted Poe.
Tom Rooney.
Gregg Harper.