Oppose: This legislation
does not make any significant contribution toward servicemembers receiving the highest quality of medical care possible. (Page
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.
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.
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
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
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
1. The military currently compensates those hurt in direct
combat at a higher rate than those injured in other ways.
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.
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
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
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
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.