SOLDIERS BEWARE!
Oppose/Support Legislation
 

Oppose:   This legislation does not make any significant contribution toward servicemembers receiving the highest quality of medical care possible. (Page 6 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support:  Though improving the quality of our servicemembers' medical care is a great concern, the main issue of this legislation is that servicemembers and their families are being denied legal redress (First Amendment) when servicemembers are killed or injured as a result of medical malpractice. This legislation would restore the right of these servicemembers and their families to sue under the Federal Tort Claims Act just like all citizens, incarcerated criminals and illegal immigrants can.


 

Oppose:   Military medical personnel are already held accountable, including the possibility of court-martial. (Page 6 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support:  There is a possibility of court-martial but the probability is unlikely.


 
Oppose:   As we have seen in the civilian sector, there appears to be no correlation between medical malpractice damage awards and improvements in the quality of care provided. (Page 7 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support:  The issue of this legislation is not whether or not malpractice suits will result in improved medical care, it is whether or not our servicemembers have the right to legal redress for medical malpractice.  "This is not a denial of their health care system. Many of them would applaud it. Many of them applaud the veterans system, the TRICARE system. But it is a recognition that this family was harmed. This individual was harmed. And they should have the simple ability to file a lawsuit." Congresswoman Jackson Lee, Texas, pages 33-34 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf


 
Oppose:   The litigation-created malpractice crisis is one of the major problems facing the practice of medicine in America today, causing health care costs to skyrocket. (Page 6 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support:   Public Citizen, a non-profit organization representing consumer interests, concluded through "Medical Malpractice Briefing Book: Challenging the Misleading Claims of the Doctors' Lobby" that the insurance cycle and inadequate patient safety, not lawsuits, are the real reasons for the malpractice crisis. https://www.citizen.org/documents/MedMalBriefingBook08-09-04.pdf

MYTHS ABOUT MALPRACTICE


 
Oppose:   The cost of this legislation would be better spent improving the current system or buying catastrophic coverage for 1 million Americans who can not get health insurance. (Pages 7-8 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support:   This is not an either/or issue...either we earmark $2.9 billion for servicemembers' malpractice claims OR we earmark it for improving the current system or for uninsured Americans' health care. First of all, those fighting for our freedom should be getting the first fruits and the best of what America has to offer, not the leftovers. Whether one agrees with the current status of our military efforts or not, one can not deny the absolute hysteria that would ensue if there was no military. Most Americans have forgotten the basic function of the military. Without the military, Americans would not have to worry about the economy, health care, employment, etc. because it would be determined by the conquering country, and Americans would have no say whatsoever. The military is fighting to give Americans the right to voice their opinions and hopefully improve the processes by which they live by. Second, there is no assurance that the $2.9 billion price tag of this legislation would be used for the reasons mentioned above. Yes, there are many other possible uses for this money, but there are also many other Congressional ABUSES for this money.


Oppose:   This bill also treats servicemember injuries differently depending on how the injury occurred. (Pages 7-8 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support:  There is already a disparity between combat related and non-combat related injuries, which I don't disagree with, in addition to inequality related to job function and rank.

1.  The military currently compensates those hurt in direct combat at a higher rate than those injured in other ways.

a.  Combat-related injury and rehabilitation pay is a special pay paid to servicemembers during a portion of time during rehabilitation from wounds, injuries and illnesses incurred in a combat operation or combat zone. http://www.military.com/benefits/military-pay/special-pay/combat-related-injury-rehabilitation-pay

b.  Combat-related special compensation eligibility includes disabilities incurred as a direct result of armed conflict, training that simulates war, hazardous duty, and an instrumentality of war. http://www.military.com/benefits/military-pay/special-pay/combat-related-special-compensation

c.  In May 2008, Combat-related injury and rehabilitation pay (CIP) was replaced by the Pay and Allowance Continuation (PAC) program. PAC authorizes the continuation of pay and allowances for up to one year to servicemembers who incur a wound, injury or illness in the line of duty while serving in a combat operation or combat zone and are hospitalized for treatment. http://www.insurance.va.gov/sgliSITE/TSGLI/TSGLIYORSummary.pdf

d.  The TSGLI program only covers injuries incurred in Operations Enduring Freedom or Operation Iraqi Freedom. http://www.insurance.va.gov/sgliSITE/TSGLI/TSGLIYORSummary.pdf

2.  37 USC 5 lists approximately 60 cases of special, incentive, and bonus pay for various military careers including special pay for medical officers of the armed forces (Section 302 http://www.law.cornell.edu/uscode/37/usc_sec_37_00000302----000-.html) and combat-related injury rehabilitation pay (Section 328 http://www.law.cornell.edu/uscode/37/usc_sec_37_00000328----000-.html).

3.  Servicemembers in war zones receive hostile fire pay, imminent danger pay and hazardous duty pay. http://www.military.com/benefits/military-pay/special-pay/hostile-fire-and-imminent-danger-pay

4.  There is honor associated with dying while defending or training to defend your country. Servicemembers do not expect to die from pain management therapy prescribed by their doctor after an elective surgery performed during their approved leave.


 

Oppose: Those servicemembers injured through medical malpractice will be entitled to the possibility of multimillion dollar damage awards, while those injured in combat will receive only administrative compensation. This is unfair to those injured in combat. (Page 8 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support: Actually the Feres doctrine could be amended to include combat related malpractice as well; however, by virtue of the definition of medical malpractice, there would be no combat malpractice claims.

The doctor owes to the patient the duty to render care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances. The "circumstances" include the area of medicine in which the physician practices, the customary or accepted practices of other physicians in the area (the "locality rule"), the level of equipment and facilities available at the time and in that locality, and the exigent circumstances, if any, surrounding the treatment or medical service rendered. http://injury.findlaw.com/medical-malpractice/actionable-medical-malpractice.html

"You don't have informed consent on the battlefield. You have got informed consent and the opportunity for physicians to make certain decisions that are more thought out and should be more professional in that type of setting than on the combat field where you have to take actions that may not be ones that you otherwise take, not in the best circumstances, and the possibility for disease and all those other things. It is not a sterile atmosphere for surgery. So I think there are good reasons to distinguish the two. And the one is done for the military's opportunity." Congressman Steve Cohen, Tennessess, page 28 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf

"And there is certainly a reason why people who are injured on the battlefield should get different compensation standards than people who are injured or hurt because of medical malpractice in a hospital setting, which should be of the same professional standards as would be in the United States or wherever in a noncombat atmosphere. All of those arenas should be uniform in terms of the medical practice extended, and nobody would submit that the combat situation is one that would be the same. And certainly, there you have got the command and the discipline that is important for the military present. It is not the same in an operating room." Congressman Steve Cohen, Tennessess, page 47  http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf

"The distinction that I was making in the law that we propose is the distinction in a calm and rational and collective and sterile environment that is parallel to one that exists in the private sector as distinguished from one that is in the combat world." Congressman Steve Cohen, Tennessee, page 58 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf


Oppose: 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...Every such medical interaction would be a potential tort claim for which defenses would need to be planned and defensive medicine practiced, threatening military medical readiness. (Page 8 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support: That's like saying bad medicine is better than no medicine. Defensive medicine should ALWAYS be practiced. It is not rational to disregard mistakes because there are more incidences of medical care provided in the military. I am sure the victims of Agent Orange, Gulf War Syndrome, and other military induced health concerns would prefer military "medical readiness" BE threatened. Then they wouldn't have to endure the ongoing medical problems associated with being a lab rat. The government uses men and women willing to fight and die for our freedom as test subjects, yet protects the incarcerated criminals and illegal immigrants from medical malpractice. This legislation would no more disrupt the practice of military medicine than malpractice suits disrupt civilian medicine.



Oppose: This legislation benefits trial lawyers. (Page 8 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support: Servicemembers should not be denied a right because of the amount lawyers are compensated. I believe most Americans work to receive compensation. Furthermore, most if not all of these cases would be accepted on contingency which means the lawyers receive NO compensation if they lose. I wholeheartedly agree that our court system has become a mockery of justice by allowing frivolous lawsuits to drain scarce local, state, and federal funds. However, our servicemembers should not be denied access to the system because our courts have catered to frivolous lawsuits. 


 
Oppose: Servicemembers with exactly the same injuries will receive very different amounts of compensation depending on where they are stationed. Of course, selective compensation based on duty station falls short of the evenhanded fairness needed to preserve military morale. (Page 44 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

Support: Civilians with exactly the same injuries will receive very different amounts of compensation depending on which state in which the malpractice occurred.

"...And Justice Scalia said that the unfairness of servicemen of geographic varied recovery is, to speak bluntly, an absurd justification for the Feres bar. It is absurd because, Justice Scalia said, nonuniform recovery cannot possibly be worse than uniform nonrecovery... the whole argument that you should be against disparate recovery and to be so would be for no recovery is illogical." (Page 46 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf)

"And, frankly, we do not have, to my understanding, a Federal medical malpractice law. We have left that to the States. That would not be violated, as I understand, in terms of the guidelines, but it would give this individual, who happens to be active duty, the right to sue." Congresswoman Jackson Lee, page 33 http://judiciary.house.gov/hearings/transcripts/transcript091007.pdf

Under the Federal Tort Claims Act, the government can only be sued "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." 28 USC Section 1346(b)


In summary, our lawmakers are more concerned with restricting attorney fees than they are with granting our servicemembers patients' rights to pursue compensation if they are injured or killed due to medical negligence.

 

One former military doctor told The Times that military medical staffs were well aware that Feres shielded them from malpractice claims by active-duty patients or their survivors. "Military medical malpractice: Seeking recourse", LA Times, April 20, 2008, http://www.latimes.com/news/printedition/front/la-na-feres20apr20,1,1017802.story