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The Honolulu Advertiser
Posted on: Tuesday, February 7, 2006

Active-duty military can't sue for malpractice

 •  Accountability of military doctors debated

By Rob Perez
Advertiser Staff Writer

Army Staff Sgt. Michael McClaran, whose surgery allegedly left half of his diaphragm paralyzed, can't sue Tripler. If it happened to wife Sheila, she could.

JEFF WIDENER | The Honolulu Advertiser

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Military personnel have been barred from suing the U.S. government for injuries “incident” to their military service since a 1950 U.S. Supreme Court decision. Here are some key dates in the history of what is known as the Feres Doctrine:

1946: The Federal Tort Claims Act is passed establishing the rules under which people can sue the U.S. government for injuries caused by the negligence of government workers. The law removed the authority that the government previously had to claim immunity from lawsuits in such cases. But it carved out specific exemptions, including cases involving military personnel suffering combat-related injuries.

1950: The Supreme Court renders a decision that barred several servicemen or their representatives in separate cases from suing the government for injuries that the servicemen allegedly suffered due to government negligence. Among other things, the court ruled that under the federal tort law, active-duty personnel cannot pursue claims for injuries “incident” to their military service. It interpreted that to include injuries not related to combat. The prohibition became known as the Feres Doctrine, named after the plaintiff in one of the cases.

1985: The U.S. House passes a bill introduced by Rep. Barney Frank, D-Mass., that would allow military members to sue the government for injuries caused by improper medical care. It dies in the Senate. Similar legislation by Frank is passed in the House in 1988 and 1989 but each time the Senate takes no action.

1986: The 9th U.S. Circuit Court of Appeals rules that Joyce Atkinson, an Army woman in Hawai‘i, can sue the government for alleged medical malpractice. Atkinson claimed that Tripler Army Medical Center was negligent in treating her pregnancy in 1982, resulting in the stillborn birth of her child.

1987: In a 5-4 ruling, the Supreme Court cites the Feres Doctrine in barring a widow, Frieda Johnson, from suing the government after her husband, a Coast Guard pilot in Hawai‘i, was killed along with two colleagues when their military helicopter crashed into the side of a Moloka'i mountain during a search-and-rescue operation. Johnson had alleged that a civilian air traffic controller for the Federal Aviation Administration was negligent, causing the helicopter to crash. In the dissenting opinion, Justice Antonin Scalia criticized the rationale behind the Feres Doctrine.

1987: The 9th U.S. Circuit reverses its earlier ruling in the Atkinson case, citing the Supreme Court’s 5-4 decision in the Johnson case.

Sources: Federal court, congressional records

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Nearly five years ago, Army Staff Sgt. Michael McClaran had laproscopic surgery at Tripler Army Medical Center to fix his indigestion and acid reflux.

The operation partly corrected the problem — and created more, according to his wife.

Although McClaran didn't know it at the time, the surgeon mistakenly severed two nerves, one of which left half of McClaran's diaphragm paralyzed, Sheila McClaran said.

The severed nerves affected Michael McClaran's respiratory and digestive systems. As a result, he has trouble digesting food and experiences shortness of breath if he eats even moderate amounts or does moderate exercise.

If what happened to McClaran had happened to his wife, one of their four children or any non-active-duty patient, the injured party could pursue a medical malpractice claim against the U.S. government.

But because McClaran is active duty — he's been in the military for 20 years — he's out of luck. He declined to discuss his case for publication, but his wife spoke freely about it.

"You serve all this time; you give all this service to your country," she said. "There should be something that service members can get back (when malpractice occurs)."

Over the past year, Michael McClaran's problems have worsened, complicated by failings of the 2001 surgery, his wife said. The pain from gas buildup after a meal can become so severe that he has been hospitalized twice, Sheila McClaran said. They rarely go out to eat anymore, and he doesn't go far from a bathroom, though recent surgery on the Mainland has improved that situation.

Michael McClaran, 45, also no longer plays the French horn because of his breathing problem. That puts him in a difficult spot. He's a French horn player for the Army band on O'ahu.

Until this past summer, McClaran's doctors at Tripler were unable to tell him what was causing his breathing and digestive troubles, his wife said. But after his case was taken over by other Tripler physicians and more tests were done in conjunction with gallbladder surgery last year, McClaran was informed in June that his problems were created when the two nerves mistakenly were cut in 2001, Sheila McClaran said.

The Army didn't respond to a written request for comment.


Under the Federal Tort Claims Act and a U.S. Supreme Court ruling from 1950, active-duty military personnel are barred from suing the U.S. government for injuries "incident to service," even if gross negligence was the cause.

The courts have broadly interpreted that prohibition, called the Feres Doctrine, to apply to virtually any kind of injury related to military service, even if the injury occurred off the job or wasn't caused by military personnel.

A court, for instance, tossed out a lawsuit by the widow of a military policeman who was off-duty and off-base when he was killed by a driver who had been drinking at a military club. The court cited the Feres Doctrine.

The doctrine was named for the 1950 high court decision in Feres v. United States in which a widow of a military man alleged that her husband's death in a barracks fire was due to government negligence. The court unanimously ruled that the woman had no right to sue under the federal tort law.

Some judges since then have harshly criticized the doctrine, even calling it unconstitutional, while saying they had no choice but to dismiss lawsuits because of Feres.

"It screams, it screams, it screams. ... It's not fair," a Michigan judge said in 2003 when dismissing a lawsuit by the family of a Marine recruit who died during boot camp from meningitis. An internal military investigation criticized the medical care the recruit received, according to published reports.

Other cases, including one involving Tripler, that were dismissed because of Feres include:

  • An Army woman whose baby was delivered stillborn at Tripler in 1982.

    Twice during her pregnancy, she went to the hospital complaining of blurred vision, hypertension, dizziness and other symptoms commonly associated with preeclampsia, an ailment that can be life-threatening to a mother and her fetus. On a third occasion, the woman was hospitalized and her baby later was delivered stillborn. She claimed that negligent treatment led to the death.

  • A 22-year-old sailor who was admitted to a Navy hospital for minor surgery to remove a cyst from his arm. He ended up a quadriplegic with brain damage.

    Similar cases at civilian hospitals resulted in multimillion-dollar verdicts for the plaintiffs. The sailor got $1,500 in monthly disability benefits — not enough to cover his full-time care costs, according to testimony submitted to Congress about his case.

  • An Army man who allegedly suffered permanent injury after a military physician in Virginia left a 30-inch-long towel in his abdomen during a gallbladder operation. It was discovered eight months later during another operation.

    "The Feres Doctrine has become truly grotesque," said George Washington University law professor Jonathan Turley, who cited the three court cases and others in a 2003 law journal article criticizing the doctrine. "It's almost impossible to capture how hurtful Feres is.

    "In reality, it is cheaper to injure or kill members of the Armed Services than it is to injure or kill civilians."


    Even though the 1946 federal law governing tort claims specifies only that military members cannot sue for combat-related injuries, the high court has broadened the application to include non-combat claims.

    The justification for banning lawsuits over combat-related injuries makes sense, people on both sides of the issue say.

    In wartime, officers shouldn't have to worry about whether they will be sued if, for instance, they send troops into combat and someone gets injured or killed.

    But the rationale for banning lawsuits for non-combat-related injuries strips the service member of basic legal rights afforded other citizens, the law's critics say. They say it also means the government isn't accountable if a service member is hurt or killed because of government negligence.

    "All we're looking for is accountability," said Barb Cragnotti, legislative coordinator for Veterans Equal Rights Protection Advocacy Inc., a nonprofit seeking the abolishment of Feres. "Because of that doctrine, there is no accountability."

    The U.S. Department of Defense did not respond to repeated requests seeking comment for this story. But at congressional hearings, officials have said that allowing service members to bring tort claims would undermine the discipline system that is fundamental to the military's command structure.

    That same rationale has been noted by the Supreme Court in upholding the Feres Doctrine over the years.

    Even if negligence isn't specifically alleged, the court said in a 1987 ruling, "military discipline may be impermissibly affected by the (lawsuit) since the judgments and decisions underlying the military mission are necessarily implicated, and the duty and loyalty that service members owe to their services and the country may be undermined."

    It also noted that civilian courts would then be required to second-guess military decisions.

    Yet even the justices themselves were divided when they upheld the doctrine in their 1987 ruling, which dealt with a lawsuit filed over a Coast Guard helicopter crash on Moloka'i in 1982.

    "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received," Associate Justice Antonin Scalia wrote in a dissenting opinion, joined by John Paul Stevens, William Brennan Jr. and Thurgood Marshall. Scalia and Stevens still are on the court.

    Advocates of changing or abolishing the Feres Doctrine have lobbied Congress over the years, but they so far have little to show for their efforts.

    The House several times has passed legislation by Rep. Barney Frank, D-Mass., allowing military personnel to pursue lawsuits for injuries caused by improper medical care, but each time it died in the Senate. The bill last passed the House in 1989.

    More recently, Cragnotti's advocacy group in 2002 submitted to a Senate committee more than 150 cases in which military personnel or their families were unable to pursue claims because of Feres.

    One of them involved Cragnotti's military son, who suffered brain damage in 2000 after his pneumonia went untreated by a Navy doctor, Cragnotti said.

    "A $30 bottle of antibiotics would have stopped my son's pneumonia," she said.


    Hawai'i's four Washington delegates are divided on the Feres issue.

    Jennifer Sabas, a spokeswoman for Sen. Daniel K. Inouye, said the senator believes that allowing service members to pursue tort claims would undermine the stability of the military discipline system.

    But Rep. Neil Abercrombie said depriving military personnel of the same rights afforded other U.S. citizens hurts morale.

    "I have had a belief my whole legislative life in the notion that the commoner should be able to sue the king," Abercrombie said.

    Rep. Ed Case said he likely could support a bill that would allow tort claims for non-combat-related injuries resulting from clear negligence. Case feels that the current prohibition casts too wide a net.

    He cautioned, however, against defining Feres exceptions too broadly.

    "It's one of those issues that's a lot more complicated the deeper you dig into it," Case said.

    Sen. Daniel Akaka said any change to the status quo would require careful analysis.

    "The Feres Doctrine is not just about federal tort law and providing a cause of action for military members and their families who have suffered tragedy," Akaka said in a statement. "It is also about military readiness. We must work hard to find the right balance to ensure that our military members and their families are provided with the best medical care available."

    Even if a bill passes the House again, it still would have problems in the Senate, legislative observers and others say. In today's political climate, they say, lawmakers are looking for ways to rein in tort litigation, not allow more lawsuits.

    Another possible venue for action is the U.S. Supreme Court. The newly constituted court could revisit the doctrine it created, and with the retirement of Associate Justice Sandra Day O'Connor, a key Feres backer, support could change.

    "The Feres Doctrine is so ridiculous on its face that many of us think it eventually will be overturned," said Turley, the George Washington law professor.


    Attorneys Rick Fried and Mark Davis, whose Honolulu law firms have handled many Tripler malpractice cases, say they have received numerous calls over the years from military people inquiring about possible claims. Fried estimated his office has received hundreds of calls in the past decade. The callers typically are told they have no recourse because of Feres.

    One recent call came from the wife of a service member who said her husband had surgery at Tripler after being diagnosed with prostate cancer. During surgery, the woman told Fried's office, her husband's colon was perforated, and he had to undergo a colostomy, requiring him to wear a pouch to dispose of his body's waste.

    Fried's firm didn't take the case, citing Feres.

    Although service members are barred from suing the government for their injuries, they sometimes are able to seek disability or veterans' benefits.

    But Sheila McClaran, who received disability payments for 12 years while she was dealing with kidney failure and a transplant, said such benefits are not enough to live on — a sentiment echoed by others.

    She said her husband has had several operations at Tripler and, with the exception of what happened in 2001, generally has been pleased with the care he received. He is particularly satisfied with the physicians currently assigned to his case, she said, because they were candid about the mistakes made in 2001 and what had to be done.

    Besides being upset about the 2001 errors, Michael McClaran was surprised to learn later that the surgeon who saw him before the surgery and told him he had done several hundred of the operations without any problems didn't actually do the procedure, his wife said. A resident surgeon performed the operation, which involved wrapping the upper portion of McClaran's stomach around his esophagus to prevent stomach acids from backing up, she said.

    McClaran in late December had surgery at an Oregon hospital — his Tripler physicians recommended that he see a specialist there — in hopes of getting his problems under control. The federal government picked up the tab.

    He still is recovering from the operation, but his wife said the surgery went well. It will be months before they know how effective the procedure was.

    Sheila McClaran said her husband is hopeful his problems can be corrected enough so he can play the French horn again, enjoy meals at restaurants and return to a more normal lifestyle.

    "His quality of life is really bad," she said before the operation. "It's just no fun anymore."

    Reach Rob Perez at rperez@honoluluadvertiser.com.