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Health Law , Ethics, and Human Rights Medical Malpractice in the Military Sandeep S. Mangalmurti, M.D., J.D., Lindsey Murtagh, J.D., M.P.H., and Michelle M. Mello, J.D., Ph.D. In this time of increased military involvement overseas, providing medical care to armedforces personnel presents formidable challenges. The conflicts in Afghanistan and Iraq have increased the volume and acuteness of injuries among active-duty service personnel while forcing military medical providers to render care in austere environments. Military physicians provide high- quality medical care worldwide, tackling medical and resource problems that civilian providers rarely encounter. However, the conditions under which care is rendered and the volume of en- counters make it inevitable that service members will suffer injuries due to medical care. As in the civilian sector, some of these injuries will be attributable to malpractice. The demands of our overseas engagements have stressed a military health system already confronting a period of fiscal austerity and struggling to recruit doctors. It is thus timely to consider how the military should address its providers‘ failures to meet the standard of care and can better enable them to meet that standard. How can the needs of service members injured by medical care best be addressed without unduly burdening military care providers? What structures would best foster improvements in the quality and safety of care? Data about the prevalence of malpractice in military health care are scarce, but the specter of malpractice creates disquietude for two reasons: public sentiment about the need for just treatment of service members and the limited legal remedies available to service members who are injured as a result of malpractice. Unlike civilians, service members cannot sue their health care providers for medical injuries incurred while on active duty. Although veterans may file malpractice claims, these can relate only to injuries incurred as veterans. Here we review the history and rationale for this rule and comment on its implications for injured service members and for the quality of military health care. We conclude that imposing tort liability for medical malpractice in the military is undesirable, but existing administrative compensation systems should be strengthened to provide an adequate substitute remedy and promote the provision of high-quality care. Mal practice in the Military Health System The U.S. military health system is a global enterprise manned by thousands of physicians in nearly 20 major tertiary care centers and hundreds of smaller hospitals and clinics, providing care for military dependents, retirees, and active-duty personnel. Revelations about substandard conditions at the Walter Reed Army Medical Center in 2007 focused attention on the quality of care being provided. Over a decade ago, journalists documented disturbing lapses in military health care, including failures to treat cancer, meningitis, and ectopic pregnancies. Anecdotal evidence suggests that substandard care persists, and a 2007 presidential commission reported that systemic problems undermined the quality of out- patient care provided to soldiers who were injured in combat. In 1987, the General Accounting Office studied data obtained from Department of Defense (DOD) malpractice claims to identify problem areas in military health care. These claims highlighted problems in several areas (including obstetrics and gynecology and

emergency medicine), which accounted for nearly half of all malpractice claims brought against Veterans Affairs (VA) hospitals. As is the case in the civilian world, common allegations included failures to deliver a distressed fetus, to diagnose pneumonia, to adequately supervise trainees, and to follow up on abnormal laboratory findings. Although studies of civilian hospitals have reviewed medical records to estimate the prevalence of injuries related to medical care and negligent care, we identified no analogous in- formation for military facilities in the published literature. Data are available on malpractice claims involving military dependents and retirees, but nothing similar exists for active-duty personnel because such lawsuits simply do not exist. No matter how gross the negligence or how severe the resulting injury, active-duty service personnel are prevented from suing for malpractice by a judicial rule known as the Feres doctrine. This rule, which has attracted long- standing criticism, recently assumed new salience as the Supreme Court considered whether to hear a case calling for reconsideration of the doctrine as it relates to medical malpractice. The Court opted not to accept the case, leaving the controversy unresolved The feres Doctrine The Federal Tort Claims Act (FTCA) of 1946 governs civil lawsuits against the federal government. It creates exceptions to the general rule that, under the doctrine of sovereign immunity, the government is immune from lawsuits by private citizens. By establishing limited areas in which the federal government consents to be sued, the FTCA attempts to balance the ability of federal employees to work without fear of liability with the desire of citizens to seek legal re- course when injured by government activity. The FTCA specifies that persons may not re- cover damages for ―any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war, a provision that the Supreme Court has construed broadly as applied to current and former service members. In 1950, in Feres v. United States, the Court considered wrongful-death and personal-injury claims brought by three plaintiffs, including a soldier whose Army surgeons left a towel in his abdomen and the widow of a soldier who died after surgery at an Army hospital. The Court, articulating what became known as the Feres doctrine, held that the government is not liable to service members ―where the injuries arise out of or are in the course of activity incident to service.‖ This ruling includes injuries beyond those incurred in combat, as well as those caused by civilian providers in employment or employment-like relationships with the government. Subsequent decisions clarified that the rule extends to medical malpractice because military service members receive medical care as a benefit incident to their service. The Court offered three rationales for barring service members‘ tort claims. First, it sought to avoid interjecting state law into the ―distinctively federal‖ relationship between the armed forces and its service members. Because state law governs FTCA litigation, the military could be subject to inconsistent rules depending on where the service member was stationed. The second rationale was to prohibit ―double recovery,‖ since service members receive military health care and disability benefits. All service members are entitled to compensation for permanent, service-connected injuries (including medical injuries) through both the DOD19 and the VA20 (Table 1). Members receive a disability rating, ranging from 0 to 100%, that determines their eligibility for compensation and other benefits. Dependents and spouses of service members who die from service-connected injuries receive death benefits. This web of benefits effectively creates a no-fault

compensation system for medical malpractice. Third, the Court opined that tort lawsuits could jeopardize military discipline. Litigation against officers might distract them from their core mission, undermine discipline, and harm military readiness. At least one circuit court has disagreed and upheld the Feres doctrine for medical malpractice based solely on the other two rationales. Others, however, have barred malpractice claims because they challenge an officer‘s decisions; require the judiciary to ―second-guess the medical decisions of the military physicians, which would ―have a disruptive effect on discipline‖; or challenge military decisions concerning resource allocation.

An Enduring Legacy of Controversy Although the case was unanimously decided, the Feres doctrine has provoked controversy. In a 1987 Supreme Court case of wrongful death, four dissenting justices opined, ―Feres was wrongly decided and heartily deserves the ‗widespread, almost universal criticism‘ it has received. Their objection centered on judicial overreaching and misinterpretation of the FTCA. Concerns about fairness drive other attempts to jettison the doctrine. Critics argue that persons who risk their lives serving our country are denied the basic privileges that their countrymen enjoy. In several respects, military disability benefits are not equivalent to the compensation available in civil courts. First, persons whose injuries either are temporary or are permanent but not severe enough to warrant a disability rating are ineligible for military disability benefits. Temporarily disabled individuals are merely placed on a Temporary Disability Retired List for up to 5 years until they are assigned to the permanently disabled list (entitling them to benefits), separated from the service without benefits, or returned to duty. They receive reduced pay and must submit to periodic medical evaluations. Second, although medical expenses and lost income are covered, other components of tort damages are generally unavailable. A civilian medical malpractice plaintiff may recover full economic losses, including lost income, medical expenses, and other injury- related expenses, as well as noneconomic (or ―pain and suffering‖) damages. Punitive damages, al- though rare, are also available. Also, as with most disability-support schemes, the military‘s program minimally compensates injuries that significantly affect a person‘s quality of life without resulting in substantial functional deficits. For example, a sailor who was left infer- tile after military surgeons left medical equipment in her abdomen received $66 per month in disability compensation. The Institute of Medicine has recommended that the benefits system include compensation for non–employment related disability and quality of life impairments, but its recommendations have not been adopted. Table 1. Monetary Benefits Available to Service Members Injured as a Result of Medical Malpractice. Program To permanently injured service members DOD disability severance pay*

DOD disability retired pay*

VA disability compensation*

Special monthly compensation for

Eligibility

Benefit

Service members with