(◊) vs. Critics (♦) of the Feres Doctrine
◊ Suing the
Government for medical malpractice would erode military discipline.
♦ Issues of medical malpractice have nothing to do with military discipline or any notions of command
or unit cohesion. In fact, it is inherently dangerous to abide by ranks in a medical environment.
Civilian courts should not get involved in military matters.
♦ Medical care is not exclusive to the military. Military medical malpractice is the same
as civilian medical malpractice.
The compensation system that the military has in place for injuries or death of those in the Armed Forces serves as a generous
remedy to the servicemember and/or his survivors.
Servicemembers understand that injuries and/or death are possibilities during military training and service. Servicemembers
do not expect to die from pain management therapy prescribed by their doctor after an elective surgery. In addition, some
members of the family are not eligible for military survivor benefits.
◊ Allowing soldiers to sue their Government for tort damages
implies that the military has failed its own.
That is exactly what the military has done when it so recklessly ends a servicemember's life. If there
are no disciplinary actions or penalties for life-threatening medical care and substandard conditions, the military medical
system is not motivated to improve its deficiencies.
◊ The military has many tools at their disposal to assure accountability.
♦ In MSG Kinamon's case, the doctor
was promoted two months after the death, received board certification shortly thereafter, is impervious to state medical board
disciplinary actions, and is still employed at Wright-Patterson Medical Center.
◊ The current system does in fact allow
for case-by-case determinations. The FTCA and the Feres doctrine empower federal District Court's to focus on individual
cases and decide whether relief is available through the "incident to service" test.
♦ After speaking with 13 attorneys, one of which was Mr. Eugene R. Fidell who was interviewed
by CBS for the Carmelo Rodriguez story, none would represent MSG Kinamon's case because of the unsuccessful precedents. In
previous cases, District Courts upheld the Feres doctrine simply because they did not know how they should define
"incident to service." It should be clear in MSG Kinamon's case that his death was not incident to service
but a result of reckless medical care.
◊ Ultimately it is the taxpayers who suffer financially for successful suits against the
♦ Taxpayers already pay for the
costs associated with medical malpractice suits by criminals and illegal immigrants via their local, state and sometimes federal
taxes. If taxpayers want to object to paying for medical malpractice suits, they should protest against the suits made by
criminals and illegal immigrants, NOT the suits resulting from substandard medical care for the men and women fighting for
MYTHS ABOUT MALPRACTICE
It is vital that Congress demonstrates to the servicemembers
that their sacrifices are not in vain, and that they are entitled to the basic rights of all law-abiding citizens of the United
States, as well as the rights given to criminals and illegal immigrants. Military personnel need to know they are
being treated at least fairly, not discriminated against, because of their service to our country.