The president and Congress have been falling over themselves to pledge better care for our wounded veterans in the wake of the scandal over “squalid” conditions at the Walter Reed Army Medical Center that included mold, rats, cockroaches, rotting walls and callous treatment of patients. The president has empanelled the perfunctory “blue-ribbon commission.” The hospital walls have literally been whitewashed, so politicians can use them again as backdrops for speeches about “nothing being too good” for our troops. Yet no one is talking about the one thing that soldiers and sailors are most desperately lacking: They don’t need another spit and polish; they need lawyers.
For decades, our military members have been barred from suing for medical malpractice and other forms of negligence by the government. Whether it is a military doctor cutting off the wrong leg or a military gasoline station cutting a brake line, military personnel are not allowed to seek legal relief as other citizens can. The result is that they are victims of grotesque forms of negligence that have not been widely seen in the civilian world for more than a hundred years. In the civilian system, the threat of lawsuit serves a critical deterrence of negligence by the government, companies and others. A rational actor will avoid liability costs by taking measures to minimize accidents.
Most Americans do not know that we deny our servicemembers the basic right to sue when they are injured by negligence. They live in a type of tort-free zone where their injuries are subject to relatively minor levels of compensation. With the silent approval of Congress, we have created a system of discount citizens who become easy fodder for incompetent or even criminal actors. Indeed, killing a soldier on an operating table or in a military recreation area is a virtual bargain at a fraction of the cost of a full-value citizen.
The military’s loss of legal protections is the result of a 1950 Supreme Court ruling on a series of cases that became known collectively as the Feres Doctrine. It was named after Army Lt. Rudolph Feres, who died in a fire allegedly caused by an unsafe heating system in his New York barracks. In this and later opinions, the Supreme Court interpreted the Federal Tort Claims Act to effectively bar any tort actions by servicemembers, even though Congress exempted only “combat-related” injuries. The court unilaterally decided that even injuries in peacetime that are far removed from any combat-related function are still “incident to service.” Thus, in one of the Feres cases, a soldier was barred from suing after an Army doctor left a 30-by-18-inch towel inside him marked as property of the “Medical Department U.S. Army.”
Little deterrence
As a result of the Feres Doctrine, there is little deterrence for military negligence beyond self-regulation, bad publicity or a political scandal. Because most accidents are isolated and military personnel tend to stay within the chain of command, these are relatively low risks for military tort-feasors. Moreover, since such accidents are not litigated, there is no reliable system to determine the rate of accidents in the massive military complex. Thus, we cannot reliably compare the accident rates in recreational or medical areas with their counterparts.
The military medical system is a prime example of what happens when patients are stripped of their legal protections. The military has long had many talented and dedicated doctors and nurses. Nevertheless, it also has long been plagued by scandals involving everything from doctors without medical licenses to medical treatment that borders on the medieval. Consider a few examples from the military malpractice-free-zone:
•Lt. Cmdr. Walter Hardin spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.
•Sailor Dawn Lambert had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen. They remained there for months until resulting complications forced a second surgery to remove her other fallopian tube, leaving her infertile. She was given $66 monthly in disability pay.
•Linda Branch lost her husband while he was serving in the Air Force after he was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu. He died of a bowel obstruction.
•Navy Petty Officer Joe Cragnotti went to a military hospital with pneumonia, which is treatable with antibiotics. The doctor left it untreated, then Cragnotti suffered brain damage.
•Air Force Staff Sgt. Dean Patrick Witt had appendicitis but was repeatedly misdiagnosed and sent home with some antibiotics. When he finally collapsed at home, he was rushed into surgery. He came out brain-dead. It’s alleged that a series of malpractice led to his death, including the use of a pediatric rather than an adult device to open an airway when he had trouble breathing.
When civilian doctors leave a patient paralyzed or crippled for a lifetime of care, the family members often receive millions in compensation. In the military, the families receive a couple thousand dollars a month and, you guessed it, more military medical care. Dorothy Meagher found herself carrying for her son after he went in to have a cyst removed at a Navy hospital. Her family alleged that, due to an overdose of anesthetics and the failure of a Navy doctor to immediately call for assistance, her son was left a quadriplegic.
Unanswered questions
Many families in the military never know that they were the victims of malpractice because, without discovery, there is no routine way of forcing such disclosure. For example, Army Staff Sgt. Michael McClaran had a simple surgery for acid reflux. He said he was not told that the surgeon had severed two critical nerves — the cause of chronic respiratory and digestive problems.
Feres extends beyond medical malpractice. It bars lawsuits in a vast array of activities in such areas as travel, recreation, housing, restaurants, bars and service stations — military enterprises often run in competition with civilian businesses. Thus, when a rented water ski loses its brakes or a soldier is raped at a concert, the military invokes Feres and walks away immune from its own negligence.
Liberals and conservatives on the court — such as Justices John Paul Stevens and Antonin Scalia — have denounced the court’s continued use of this doctrine, as have dozens of lower court judges. This doctrine has done more harm to military personnel and families than any court-made doctrine in the history of this country.
Congress must amend the Federal Tort Claims Act to put an end to this disastrous doctrine. We can no longer afford to leave our servicemembers in the hands of politicians who express shock every 10 years as new scandals regularly emerge. Some lawmakers knew of the appalling conditions at Walter Reed but took no legislative action.
The fact is that military hospitals are often treated as little more than a reservoir of human props for political photo ops. The only other part of Reed that members of Congress routinely visit is the VIP floor located on the top floor. Known as the Eisenhower Executive Nursing Suite, it’s where high-ranking politicians, jurists, generals, admirals and diplomats are treated. Of course, the politicians, judges and foreign dignitaries are allowed to sue for any negligence.
Former senator Bob Dole, who co-chairs the new blue-ribbon commission, was treated there and recently noted that he never saw anything to complain about. That is not surprising since, unlike the vermin-infested and mold-covered rooms of wounded soldiers, politicians are given suites that include fine carpets, antique furniture, separate dining rooms and fine china.
If members of Congress truly want the best for our troops, they should start by giving them the same legal protections that the members themselves enjoy. No one is asking for Congress to treat our soldiers as high-value VIPs, but simply full-valued citizens with the same protections as the people they are defending around the world.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors. He is the author of a three-part study of the military, including its legal and medical systems.
Persons that join the U.S. armed forces should be told about this doctrine prior to signing any enlistment or reenlistment contracts. Nobody should be required to surrender their basic human/legal rights as a punishment for serving their country by joining the military. What this tells me is that both Democrat and Republican politicians and their (financiers) pundits have two things in common “they don’t respect military members and they don’t respect military families either.” I served in the USMC for 13 years (3+ years as a Career Planner) and I had never heard of this law. In my opinion nobody would enlist or reenlist if they knew about this law. If we really want to stop this we need to stop our young men and women from volunteering to serve in the all volunteer military. I suggest we pass out copies of this law to all persons of military age and warn them not to surrender their legal rights.
The United States Army is not above the law… Our Soldiers come home and the Government throw them away like a piece of trash… yet they spend all this money to train them to kill… what is wrong with that picture???? I am sick of it… so many that have been tossed away like trash when they come home from Iraq…. Take Care of Our Soldiers is what I say…. God forbid these young men and woman come home and they keep them on the base for 15 days and make them go to counseling 3 days a week to make sure they are OK …. Oh hell no that would cost to much money to do that…. I would never tell a young man or woman to go into the United States Army or the Marines NEVER and our court system,,, its a joke … its not about justice anymore its about who can get there pic on the front page of the paper first or the deals that go on behind close doors…or how much money you have… been there seen it and watched it…. makes me sick… and no one wants to listen… or change it…. Just Saying ………….. A loving Mother
To Whom It May Concern: August 25, 2012
I am seeking a Lawyer to handle a medical malpractice lawsuit on a contingency. I believe this is a hands-down totally winnable suit. This case involves a misdiagnosed psychiatric condition. ( The War ) Iraq
Dr. Correnti of Columbus Georgia, was the consulting doctor when my son arrived home from Iraq in 2003. Having already been evaluated in Iraq, as suicidal/homicidal, it should have been a no-brainer that he should be detained and treated for his mental condition. Dr. Correnti took 5 minuets on the phone to do his evaluation and released my son from the hospital, Subsequently, 2 days later he was present at a horrific murder for which he took the plea bargain and was sentenced.
He is currently serving time in a Georgia prison. If my son had been properly cared for when he returned home from Iraq, he would not have been on the street in his state of mind.
The Army refused to send him to Germany for treatment saying quote ( He came over here with the 3rd ID Infantry out of Fort Benning he’s a hero, he’s going home with us. ) What kind of logic is this? My son smuggled his 28 pages of original medical records home in his duffle bag, it is documented that he was on suicide watch in Iraq 5 days prior to coming home, my son tried to take his own life. The doctor In Iraq wanted to ship him out to Germany Mental hospital . With all the current statistics on that devastated mindset of the soldiers returning home from the war, my son is lucky to be alive. We need help to bring attention to the way the returning Vets are being treated.
This civilian doctor was responsible for seeing the condition my son was in, but he never actually saw him in person, this is not a proper or professional care.
How many of the thousands of suicides could have been prevented had they been properly evaluated. I am sure you will be familiar with this case. It has been Nation wide news since 2003, 48 Hours, GQ magazine, News Week, The book ( Murder in Baker Company) The movie ( In the Valley of Elai ) Playboy magazine, UPI Washington D.C., Army Times.
My son was the DA’s star witness for the district attorneys office in Columbus Georgia. It still haunts him today. My son is on medication still today…
In the 28 pages of medical records that my son smuggled home on military forms they diagnosed him with PTSD and my son tried to take his own life in Iraq 5 days before leaving to come back to the United States to Fort Benning.
The media is still in touch with me today, and they would want to interview the attorney that would be interested in taking this case. GQ magazine is coming out with a documentary for TV on PTSD in the near future. If you don’t mind being in the media light than this case wouldn’t be for you.
This has been a lot for one person myself to deal with.
Thank you so much for your time. I will await to hear from you.
Sincerely,
Billie Urban
14 Church Street
Industry, Maine 04938
207-314-7766 dispatchergirl57@yahoo.com
I have bought a home in Trenton South Carolina and will be moving there in October to be close to my son.
No witnesses and not in the record.
In 2011 the needed for treatment experimentation evidence is still not in a subject’s medical record with the names of all in-service witnesses lost. The U.S. Government’s then 50 year known, “experiments that were designed to harm” [6] were a dereliction of duty in direct disobedience of the Department of Defense (DOD) Secretary’s 26 February 1953 order.[2] During the U. S. General Accounting Office (GAO) [5] and U.S. Senate’s [6] 1994 reported past fifty years, hundreds of thousands of the “to harm” service records were destroyed in a 1973 National Personnel Records Center fire. Congress’s 1974 Privacy Act censored experiment verifying witnesses from any surviving records! The Senate’s 1994, “III. Findings and conclusions” report, “K. DOD and DVA have repeatedly failed to provide information and medical followup to those who participate in military research…” and “N. Participation in military research is rarely included in military medical records, making it impossible to support a veteran’s claim for service-connected disabilities from military research.”
To-date the U.S. Congress has rejected the U.S. Senate 1994 Report’s, “The Feres Doctrine should not be applied for military personnel who are harmed by inappropriate human experimentation when informed consent has not been given.”[6] The U.S. Supreme Court’s 1987 STANLEY is a “to harm” DOD 1958 drug experiment “injuries that `arise out of or are in the course of activity incident to service.'”.[3] FIFTY (50) TIMES cited is the U.S. Supreme Court’s 1950 FERES “incident to service” death decision due to a 1947 Army barracks fire.[1] The STANLEY case is one of the U.S. Senate’s Dec. 1994 “During the last 50 years, hundreds of thousands of military personnel” were subjected to “experiments that were designed to harm”, e.g., their reported biological and chemical agents, radiation exposure, hallucinogenic and investigational drugs, experimental vaccines and behavior modification projects.[6] Underlying the U.S. Senate’s Report is the GAO Sept. 1994 U.S. House Report, “Human Experimentation Overview on Co1d War Era Programs”![5]
Convicted rapists and murderers are given protection from human experiments by the U.S. Constitution’s 1791 Bill of Rights, Amendment Eight. In 1992 the U.S. Senate signed and ratified the United Nation, International Covenant on Civil and Political Rights (ICCPR).[4] Its 1994 Index, “… Article 7 – Freedom from Torture, or Cruel, Inhuman or Degrading Treatment or Punishment.”notes that, “Written policy and practice prohibit the use of” [prison] “inmates for medical…..experiments.”![4] Nineteen (19) times cited are the U.S. Constitution plus its Eighth Amendment’s no cruel and unusual punishment.[4]
The “Veterans Right to Know Act” to establish the Veterans’ Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress.[7] A veteran’s right to get the “designed to harm” [6] needed for treatment, and experiment identifying, evidence never became law. This is consistent with the 1957, “….The intelligence community believed that it was necessary “to conceal these activities from the American public in general,” because public knowledge of the “unethical and illicit activities would have serious repercussions in political and diplomatic circles and would be detrimental to the accomplishment of its mission.” Id., at 394 (quoting CIA Inspector General’s Survey of the Technical Services Division, p. 217 (1957)).”; See [Footnote 4] of Section IV, 1987 STANLEY.[3]
It is now a from 1944, 67 years of U.S. Congressional talk and no correction. Do not the U.S. Senate’s stated DOD “EXPERIMENTS THAT WERE DESIGNED TO HARM” [6] continue? Overlooked by many in Congress is their Oath of Office to defend the U.S. Constitution, our national “Pledge of Allegiance” “with liberty and justice for all” and the U.S. Supreme Court’s ignored own, carved in stone over its entrance, “EQUAL JUSTICE UNDER LAW”! As in the GAO and U.S. Senate’s reported past, these “incident to service” activities are conducted under the ongoing secrecy cover of our ‘national interests’, e.g., WWII, Cold War, Korea, Vietnam, Gulf War, Iraq and Afghanistan. Shouldn’t U.S. Service Personnel and Veterans get back those Constitutional Rights that they die for and convicted rapists and murderers keep? Please hold your members in the U.S. Congress accountable!
REFERENCES:
[1] 1950 – Feres v. United States, 340 U.S. 135, 146 (1950). http://supreme.justia.com/us/340/135/case.html
[2] 1953 – DOD Secretary’s 26 February 1953 NO non-consensual, human experiment’s Memo pages 343-345. George J. Annas and Michael A. Grodin, “The Nazi Doctors and the Nuremberg Code; Human Rights in Human Experimentation” (New York: Oxford University Press, 1992).
[3] 1987 – U.S. SUPREME COURT, JUNE 25, 1987, U.S. V. STANLEY , 107 S. CT.. 3054 (VOLUME 483 U.S., SECTION 669, PAGES 699 TO 710). http://supreme.justia.com/us/483/669/case.html
[4] 1994 – U.S. State Dept., “U.S. Report under the International Covenant on Civil and Political Rights July 1994, Article 7 – Freedom from Torture, or Cruel, Inhuman or Degrading Treatment or Punishment.” See “Index of “1994 International Covenant on Civil and Political Rights”
[5] 1994 – [PDF] T-NSIAD-94-266 GAO September 28, 1994 “Human Experimentation Overview on Co1d War Era Programs” archive.gao.gov/t2pbat2/152601.pdf
[6] 1994 – December 8, 1994 REPORT 103-97 “Is Military Research Hazardous to Veterans’ Health? Lessons Spanning Half a Century.” Hearings Before the U.S. Senate Committee on Veterans’ Affairs, 103rd Congress 2nd Session.
[7] 2005 & 2006 – “Veterans Right to Know Act” to establish the Veterans’ Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress. H. R. 4259.
Time sensitive: Please forward this e-mail to everyone you know!
Remembering the meaning of Veterans Day. Remembering our Soldiers.
Remembering the People.
As Veterans Day approaches, November 11, 2009, for some it’s a day of honor, for others it’s just a day off from work, and for many businesses a veterans day sale! It is, in fact, a day of remembrance. One honoring all those who have fought and died for our country, and for showing gratitude and respect for those who are currently fighting and dying for our country. Those people are your fathers, mothers, brothers, sisters, friends, relatives, somebody you know or even yourself.
You are receiving this letter because we know that you are going to act on it and to do the right thing in response.
U.S. Military Health Care has a law called the Feres Doctrine that does not allow military doctors to be held accountable for negligent care. That means that if you or a loved one is seriously injured because of military medical malpractice that you are pretty much S.O.L.!
NY Congressman Hinchey’s Bill; The Carmelo Rodriguez Military Malpractice Accountability Act of 2009 H.R. 1478 and NY Senator Schumer’s sister bill S. 1347 will change that! These Bills have a great chance of being voted into law very soon, but only if everyone of us tells our congressmen and senators that we, their respective constituents insist that they at the very least vote in favor of these bills or better still become cosponsors of the bills. That’s all you have to do! LET THEM KNOW NOW that you support the bills too!
We’ve made it so easy for you to follow through. Here’s how.
1. Attached to this email, you will find The Veterans Day Proposal and a Petition for all of you to sign. Have everyone you know sign it too.
We would like to collect as many signed petitions by the 25th of November, so please hurry. Even if you don’t live in Oregon, send your petition to us and we can get it to the right place.
2. Also please CALL your senators and congressman and have everyone you know do so as well on Veterans Day. Let them know where you stand on this issue! There is information on finding your Congressmen in The Veterans Day Proposal.
3. Please PASS this email onto your friends and families. We need to make and impact on November 11, 2009
4. Please visit http://www.erniesfootprints.com for updates and additional information.
Thank you for making Veterans Day 2009 the day you can truly say “I supported the troops!” “I supported our veterans!” “I support the lives of people I care about!”
If you have any questions and want to speak to someone directly, simply call us at
The Feres Doctrine boggles the mind. This needs to be overturned. My son Michael Fremer was killed at Fort Polk, La on 2/13/08 because of Army Negligence during a training exercise. The Army can not be held accountable because of the Feres Doctrine. Why is the Army exempt from being held accountable for Negligence? Our young men and woman are risking their lives. This is how our country treats the soldiers and the families? How many others die because of poor training? It seems the Army keeps this quiet.
There are other cases that involve the feres Doctrine. For example Medical Malpractice in the army. Also Marines being exposed to Toxic chemicals on US Bases. The Military is exempt from being held accountable on all of these matters. The Feres Doctrine needs to be overturned.
CONGRESS’S EXPERIMENTS CONTINUE?
Despite the efforts of some members of Congress, do the Department of Defense (DOD) U.S. Senate proven experiments continue?[8] The 1950 U.S. Supreme Court FERES Doctrine determined that the U.S. Government can not be held accountable for injuries incident to U.S. Military Service.[1] The 1987 U.S. Supreme Court STANLEY determined that FERES also protects the government from injured DOD experimentation subjects.[3] In 2006 the Biomedical Advanced Research and Development Authority (BARDA) was signed into law.[10] In 2009, under its “NATIONAL SECURITY MISSIONS”, now also continued on civilians are these DOD on Veterans lessons learned?
In 2009 the U.S. Congress still has not corrected the U.S. Senate’s 1994 reported 50 years of a DOD “experiments that were designed to harm” policy. This is their many experiments conducted on “hundreds of thousands” of U.S. Military personnel.[8] The “Veterans Right to Know Act” to establish the Veterans’ Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress.[9] It never became law.
“IT WAS NECESSARY “TO CONCEAL THESE ACTIVITIES FROM THE AMERICAN PUBLIC IN GENERAL,” BECAUSE PUBLIC KNOWLEDGE OF THE” UNETHICAL AND ILLICIT ACTIVITIES WOULD HAVE SERIOUS REPERCUSSIONS IN POLITICAL AND DIPLOMATIC CIRCLES AND WOULD BE DETRIMENTAL TO THE ACCOMPLISHMENT OF ITS MISSION.” Footnote 4, U.S. Supreme Court 1987 STANLEY military experiments case, Page 688.[3] This case confirms their FERES Doctrine [1] decision that correction is through the U.S. Congress. After STANLEY Congress passed the 1988 Veterans’ Judicial Review Act (VJRA). Established was the Legislative, Article I severely restricted, Veteran’s Court with Congress’s “The court may not review the schedule of ratings for disabilities or the policies underlying the schedule.”, i.e., the needed for treatment evidence. The Veterans Court Chief Judge’s no teeth statement.[7] Given to the Secretary of the Department of Veterans Affairs (VA) is the Judicial Branch’s final authority on “the policies underlying the schedule” questions of law; 511(a)![5] These experiments were performed under the secrecy cover of our past wars. They were in direct disobedience of the DOD Secretary’s 1953 TOP SECRET order. This order was unclassified twenty two (22) years later.[2] 1953 and since known by the Secretary’s of all Services, Joint Chiefs of Staff, the DOD Research and Development (R&D) Board and the U.S. Congress.
Each deliberate “to harm” project completes the R&D process. Prior R&D is reviewed. The resulting Scope of Work defines what each experiment is “designed” to accomplish. The how, where, when and who is identified. The conducted RESEARCHED cause and effects are closely followed and recorded. From the results are DEVELOPED safe production, use, treatment and protection.
The needed for treatment, experiment revealing evidence is: 1. Not in a subject’s Medical History, so that they never the wiser become.. And 2. The resulting alerting injuries are not in the VA “schedule…for disabilities”! There is no, “Veterans Right to Know….”. After honorable service Congress still has not given back to veterans those rights that convicted rapists and murderers keep![6]
GIVEN THE U. S. CONGRESSIONAL, NOW 65 YEAR [8], PATTERN OF BEHAVIOR, DO NOT THE EXPERIMENTS CONTINUE UNDER THE COVER OF OUR PRESENT WARS??
REFERENCES:
[1] 1950 – Feres v. United States , 340 U.S. 135, 146 (1950).
[2] 1953 – DOD Secretary’s 26 February 1953 NO non-consensual, human experiment’s Memo pages 343-345. George J. Annas and Michael A. Grodin, “The Nazi Doctors and the Nuremberg Code; Human Rights in Human Experimentation” (New York: Oxford University Press, 1992). In REFERENCE [6] as NOTES 72, 168 & 169.
[3] 1987 – U.S. SUPREME COURT, JUNE 25, 1987, U.S. V.. STANLEY , 107 S. CT. 3054 (VOLUME 483 U.S. , SECTION 669, PAGES 699 TO 710). In REFERENCE [8] cited in NOTE 169.
[4] 1988 – Veterans’ Judicial Review Act (VJRA), Pub. L. No. 100-687, Div. A, 102 Stat. 4105 (8 December 1988)
[5] “United States Code (USC) Title 38, 511. Decisions of the Secretary; finality.” http://www.law.cornell.edu/uscode/html/uscode38/uscsec3800000511—-000-.html
[6] 1994 – U.S. State Dept., ” U.S. Report under the International Covenant on Civil and Political Rights July 1994, Article 7″.
[7] 1994 – Chief Judge and colleague statements, Court of Veterans Appeals, Annual Judicial Conference, Fort Meyer, VA., 17 & 18 October 1994. http://www.firebase.net/state_of_court_brief.htm
[8] 1994 – December 8, 1994 REPORT 103-97 “Is Military Research Hazardous to Veterans’ Health? Lessons Spanning Half a Century.” Hearings Before the U.S. Senate Committee on Veterans’ Affairs, 103rd Congress 2nd Session. With NOTES 1 to 170.
[9] 2005 & 2006 – “Veterans Right to Know Act” to establish the Veterans’ Right to Know Commission was proposed in the 2005 and H.R. 4259 [109th] 2006 Congress.
[10] 2006 – Biomedical Advanced Research and Development Authority (BARDA), Bill S. 3678 2006. Signed into law 16 December 2006.
It often broke my heart to enforce the Feres doctrine while I served as a Marine Judge Advocate in the Claims and Litigation Branch of the Office of the Judge Advocate General of the Navy in the mid-1970s. As a young Marine officer and lawyer, I had to apply the law, however, inequitable. It is now time for change . . . and there is no legitimate excuse for denying the victims of negligence fair compensation. It is time to protect those who protect us. The courts are bound by the Supreme Court’s nearly 70-year-old decision. Congress and the President must act to remove this ancient obstacle to fair recovery for catastrophic injuries and deaths suffered by our servicemen and women at the hands of the U.S. government.
Semper fi!