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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* Eligibility Service members with <20 years‘ service who are found unfit for further military service and whose disability rating is ≤20% Service members who have been determined to be unfit to perform their duties because of their disability and have either ≥20 years‘ service or a disability rating of ≥30% Disabled veterans with a disability rating of 10 to 100% Benefit
One-time disability severance payment based on disability rating and years of service Monthly disability payments that increase with severity of disability Tax-free monthly disability payments that increase with severity of disability, inability to maintain employ- ment, and existence of spouse and dependents Additional monthly compensation
DOD disability retired pay*
VA disability compensation*
Special monthly compensation for
Disabled veterans who have lost the use of certain
serious disabilities Aid and attendance allowance Housebound allowance To families of deceased service members Death gratuity
organs or extremities Severely disabled veterans in need of regular aid and assistance Severely disabled veterans who are housebound
Additional monthly compensation based on determination of need Additional $2,993 per month
Dependency compensation
Monthly payment of at least $1,154, with increases for dependent children and spousal hardship. Typically, persons cannot concurrently receive both Department of Defense (DOD) and Veterans Affairs (VA) disability payments for disabilities that were not sustained in a combat zone. However, veterans with 20 or more years of service and a VA disability rating of 50% or more can receive both benefits simultaneously.
and
indemnity
A recipient can be designated by a service member for all or a portion of this gratuity, with remaining amounts paid to spouse, children, or parents Eligible spouses, children, and sometimes parents
$100,000 lump-sum payment
Third, by law, VA disability payments for lost income compensate veterans only for the ―aver- age impairments of earning capacity resulting from such injuries in civil occupations‖ (Table 1). The system has been criticized for failing to ascertain how well the disabilityrating scheme correlates with a person‘s ability to work or whether compensation levels (based on disability rating) accurately reflect average lost income. For some service members, the gap between disability payments and actual lost income can be large. Consider a military surgeon who has a catastrophic reaction to a drug that was negligently administered at a military hospital and resulted in cognitive deficits that prevent her from practicing medicine. A civil lawsuit would probably provide annual compensation in the hundreds of thousands of dollars primarily on the basis of lost earning potential. However, assuming she is found to be 100% disabled and has served for a period of less than 20 years, her military disability payments would be only $2,673 per month, with supplemental benefits if she had dependents, had lost a limb or her vision, was permanently housebound, or required regular assistance. Because the recovery available from the military does not approach that available in the tort system, the double-recovery rationale underlying the Feres rule is weak. Furthermore, the judicial system does not apply this rationale consistently. The availability of other sources of compensation, such as private health insurance, does not prevent civilians from filing tort claims. Rather, many states simply require that the value of such benefits be deducted from malpractice awards. Critics of the Feres doctrine also find the military-discipline rationale unpersuasive. Few medical malpractice claims implicate strategic military decisions in such a way that judicial involvement would threaten the smooth functioning of military operations. Even arguments that pertain to the military‘s decisions concerning al- location of personnel or other resources are weak because medical malpractice claims by veterans and dependents of service members raise this same concern yet are permitted. Finally, the Feres rule creates perverse results. Although an injured service member cannot sue his physician, family members who receive care from the same military doctor can. For example, when substandard prenatal care injures an active service member and her newborn, the infant may sue but the service member may not. The argument that only one of these suits would jeopardize military discipline and discretion is difficult to sustain.
RepealoftheferesDoctrine:AnImperfectSolution Some commentators, including veterans groups, advocate repealing the Feres doctrine and shifting to a civil liability system. In the past 5 years, the Supreme Court has declined
to hear at least four cases in which the Feres rule barred malpractice claims, most recently in 2011, suggesting that it is not likely to overturn its previous decision. Against this backdrop, opponents have attempted to repeal it legislatively. In 2009, Representative Maurice Hinchey (D-NY) introduced unsuccessful legislation to exclude from the Feres rule medical malpractice claims arising from care provided in noncombat settings. Previously, similar bills have passed the House but not the Senate. Even though the reasoning underlying the Feres doctrine is questionable, repealing it may not serve the best interests of service members. Concerns about inefficiency and limited governmental resources militate against providing access to both the tort system and the disability- compensation system, particularly since service members and veterans receive free care through the military health system, nor would it be desirable to make tort litigation the exclusive remedy. Overhead costs in the tort system are very high, and although tort suits theoretically provide more generous benefits than the military disability system, in practice it can be difficult to recover damages in lawsuits. Fairness demands that compensation systems for medical injuries be reasonably accessible to those injured through malpractice. However, the civil justice system is notoriously underutilized as a remedy for medical malpractice and can be onerous for those who do pursue claims. Only an estimated 2 to 3% of civilian patients injured by provider negligence sue. The need for attorney representation, as well as the difficulty in obtaining it faced by patients with modest or difficult- to-prove injuries, pose substantial barriers. Mal- practice litigation is typically highly adversarial, expensive, protracted, and emotionally fraught. Accessibility problems also plague the military‘s disability benefits scheme: the DOD and VA operate independent, byzantine systems of disability evaluation that use different procedures and rating scales. Each evaluation takes months to complete, and it can take years for an appeal to be addressed. However, these problems are more mutable than those of the tort system, which is decentralized and shaped by entrenched judicial rules and a contingent-fee system for plaintiff attorneys. Another issue is that to receive compensation, active service members currently need to prove only the degree of their disability, that their disability is service-related, and that they were not dishonorably discharged. In contrast, tort litigation requires proof that medical negligence caused the injury. Difficulties in providing such proof preclude compensation for many plaintiffs, prevent many others from bringing suit, and lead to inaccuracies and inequities in compensation awards. In the military context, the challenges of gathering evidence and establishing the legal standard of care in medical settings that differ radically from domestic, non crisis contexts would further complicate the process. Overall, access to the tort system would probably not result in improved injury compensation for most service members. Also, a tort remedy would probably not improve the problems related to quality in the military health system. Deterrence of medical negligence is commonly cited as a major objective of tort law, and the desire to hold their physician accountable is a key reason malpractice plaintiffs sue. However, there is little empirical evidence that civilian malpractice litigation provides incentives to improve the safety of care. Deterrence fails partially because most instances of substandard care do not result in claims, and because physicians‘ malpractice insurance premiums generally do not increase even if their risk profile changes owing to more claims being brought.
The deterrent effect may be further enervated in the military context. Even if the Feres rule were changed, another federal statute insulates individual military physicians from malpractice liability, minimizing the effect on individual providers; furthermore, the FTCA prohibits punitive damages awards. Lawsuits could theoretically send a deterrent signal to the military health care system, but FTCA judgments and settlements greater than $2,500 are paid from a general federal fund rather than from individual agency appropriations. As a result, the financial sanctions from tort awards would not be felt specifically by the DOD — the agency best situated to improve care. I m p r o v i n g t h e M i l i ta r y ‘ s R e s p o n s e t o M a l p r a c t i c e Rather than repealing the Feres doctrine, reform of the military‘s response to medical malpractice should focus on improving the military‘s current, administrative approach to medical injury compensation. Strengthening the military benefits scheme would better assist victims of malpractice and facilitate quality improvement within the military health system. Widespread dissatisfaction with the military disability system has spurred attempts in recent years to improve the system. In 2007, the Dole– Shalala Commission found that among military service members and veterans who had been wounded in Iraq or Afghanistan and required medical evacuation, fewer than 40% were satisfied with the current disability evaluation system and just over 40% felt that they fully understood it. The Institute of Medicine, expressing concerns that benefits did not reflect the average loss of earnings, recommended an analysis of the adequacy of benefits and the effectiveness and quality of the rating system, in addition to recommending that benefits be awarded for the effects of disability on quality of life. The 2007 report of the Veterans‘ Disability Benefits Commission recommended an immediate interim increase of up to 25% in disability compensation while a more systematic approach to calculating appropriate benefits was developed. Benefits have since risen, but at nowhere near the 25% increase recommended. Some of these concerns were addressed with the 2008 passage of the Wounded Warrior Act, 44 which requires that the DOD use VA guidelines when assessing disability, if possible, and that the agencies report on the feasibility of eventually merging their systems. This Act also authorized pilot programs to address inconsistent disability evaluations and systemic delays in processing benefit requests. Although not specific to compensation for medical injuries, these reforms should lower barriers to accessing compensation for service members with malpractice-related injuries. Unfortunately, the Wounded Warrior Act does not ensure that compensation levels capture the full impact of disability. It makes small inroads in plans for increasing compensation by, for example, discontinuing the practice of reducing VA disability compensation by the amount of disability severance when the injury is sustained in a combat zone. However, additional reforms are needed. First, compensation levels for lost earnings should reflect the service member‘s actual past and projected future losses, rather than approximating average lost earnings. Second, compensation should be available for other elements of economic loss, as well as for diminished quality of life. Third, increased compensation should be available for temporary, serious disabilities. Finally, a unified process of interagency claims should be implemented, as envisioned by the Wounded Warrior Act. These
reforms would enable service members to enjoy many of the benefits that the tort system provides without its burdens. Reforms are also needed to ensure that the disability claims system does more than provide compensation in individual cases. A more accessible system, by facilitating more frequent claims, would send stronger quality signals and provide greater incentives for improvement. Paying claims from agency-specific funds would reinforce this signal‘s strength. In addition, as is the case in the civilian sector, there is considerable room for improvement in transparency surrounding adverse events and in the extent to which data from the claims system are systematically studied and used to improve patient safety. In both military and civilian health care, cultural and practical barriers hinder full and honest disclosure of unanticipated outcomes to patients. The military‘s hierarchical structure may fortify some of these barriers. However, one major barrier in the civilian context — the threat of litigation — does not exist in the military, presenting an opportunity to move forward with a more open approach to medical errors. Greater transparency would alert patients to their right to seek disability compensation while facilitating learning about medical error. Administrative compensation systems for medical injuries can also contribute to improved patient safety by aggregating data that shed light on the causes of medical injuries. As a potentially centralized, administrative system of compensation, the military‘s disability benefits scheme is well positioned to analyze information about harmful medical injuries and thus effect systematic improvements in care. While these improvements may be occurring behind the scenes, increased transparency about lessons learned could result in greater accountability and a stronger impetus for improving quality of care. Disability claims databases are quite comprehensive, capturing permanent medical injuries regardless of the degree of error or fault, and would become even more comprehensive if temporary injuries were compensable. Conclusion Although the Feres doctrine is controversial in that it introduces a seemingly indefensible inequity between civilians and active-duty service members injured as a result of malpractice, eliminating the rule would replace one injustice with another. Few would consider the tort system a well-performing injury-compensation scheme or an effective force for improving health care quality. The problems with the military‘s administrative compensation scheme are myriad but are fairly tractable when compared with those of the tort system. Improving the levels, types, and accessibility of disability benefits, as well as making better use of claims data to improve military health care, would do a great deal to meet the needs of those who serve their country. Disclosure forms provided by the authors are available with the full text of this article at NEJM.org. We thank Elizabeth Abernathey for research assistance. From the Department of Medicine, University of Chicago Medical Center, Chicago (S.S.M.); and the Department of Health Policy and Management, Harvard School of Public Health, Bos- ton (L.M., M.M.M.).
1. Gawande A. Casualties of war — military care for the wounded from Iraq and Afghanistan. N Engl J Med 2004;351:2471-5. 2. Holmes SL, Lee DJ, Charny G, Guthrie JA, Knight JG. Military physician recruitment and retention: a survey of students at the Uniformed Services University of the Health Sciences. Mil Med 2009;174:529-34. 3. Priest D, Hull A. Soldiers face neglect, frustration at Army‘s top medical facility. Washington Post. February 18, 2007:A1. 4. Carollo R, Nesmith J. Unnecessary danger: military medi- cine. Dayton Daily News. October 5–11, 1997 (7-part series). (http://www.pulitzer.org/works/1998-NationalReporting.) 5. Turley J. What our soldiers really need: lawyers. USA Today. April 12, 2007:13A. 6. Roche WF Jr. Willing to die, but not this way. Los Angeles Times. April 20, 2008:A1. 7. Hull A, Priest D. ‗It is not just Walter Reed‘: soldiers share troubling stories of military health care across U.S. Washington Post. March 5, 2007:A1. 8. Miller CT, Zwerdling D. Military still failing to diagnose, treat brain injuries. National Public Radio. June 8, 2010. (http:// www.npr.org/templates/story/story.php?storyId=127402993.) 9. President‘s Commission on Care for America‘s Returning Wounded Warriors. Serve, support, simplify: subcommittee re- ports & survey findings. July 2007. (http://www.veteransforamerica.org/wp-content/uploads/2008/12/presidents-commissionon-care- for-americas-returning-wounded-warriors-report-july-2007.pdf.) 10. General Accounting Off ice. Better use of malpractice data could help improve quality of care. July 1987. (Publication no. GAO/HRD-87-30.) (http://archive.gao.gov/d28t5/133115.pdf.) 11. Brennan TA, Leape LL, Laird NM, et al. Incidence of adverse events and negligence in hospitalized patients: results of the Harvard Medical Practice Study I. N Engl J Med 1991;324:370-6. 12. Thomas EJ, Studdert DM, Burstin HR, et al. Incidence and types of adverse events and negligent care in Utah and Colorado. Med Care 2000;38:261-71. 13. Moallem L. Supreme Court may hear challenge to Feres doctrine. Hastings Law Journal. April 27, 2011. (http://www.hastingslawjournal.org/supreme-court-may-hearchallenge-to- feres-doctrine.) 14. Witt v. United States, order no. 10-885, June 27, 2011. (http://www.supremecourt.gov/orders/courtorders/062711zor.pdf.) 15. 28 U.S.C. §§ 1346, 2671–2680 (2011). 16. 28 U.S.C. § 2680(j) (2011). 17. Feres v. United States, 340 U.S. 135 (1950). 18. United States v. Johnson, 480 U.S. 681 (1987). 19. 10 U.S.C. §§ 1201 et seq. (2011). 20. 38 U.S.C. §§ 1110, 1114-1115, 1131, 1134-1135 (2011). 21. Atkinson v. United States, 825 F.2d 202 (9th Cir. 1987). 22. Utley v. United States, 624 F.Supp. 641 (S. D. Ind. 1985). 23. Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987). 24. Scales v. United States, 685 F.2d 970 (5th Cir. 1982). 25. Turley J. Pax militaris: the Feres Doctrine and the retention of sovereign immunity in the military system of governance. George Wash Law Rev 2003;71:1-90. 26. Veterans Equal Rights Protection Advocacy. Overview of who we are. (http://www.verpa.us/aboutus.html.) 27. Army Regulations, 635-40, chap. 7, para. 7-2; 10 U.S.C. 1210.
28. Institute of Medicine. A 21st century system for evaluating veterans for disability benefits. Washington, DC: National Acad- emies Press, 2007. 29. 38 U.S.C. § 1155 (2011). 30. Honoring the call to duty: veterans‘ disability benefits in the 21st century. Washington DC: Veterans‘ Disability Benefits Commission, 2007. 31. Carpenter JL. Military medical malpractice: adopt the discre- tionary function exception as an alternative to the Feres Doc- trine. Univ Hawaii Law Rev 2003;26:35-68. 32. Cain BP. Military medical malpractice and the Feres doc- trine. Georgia Law Rev 1986;20:497-531. 33. Brou DG. Alternatives to the judicially promulgated Feres doctrine. Mil Law Rev 2007;192:1-80. 34. Carmelo Rodriguez Military Medical Accountability Act of 2009: hearing before the Subcommittee on Commercial and Ad- ministrative Law of the Committee on the Judiciary, House of Representatives, 111th Cong., 1st Sess. (2009). 35. Carmelo Rodriguez Military Medical Accountability Act of 2009, H.R. 1478, 111th Cong., 1st Sess. (2009). 36. Department of Veterans Affairs. VA benefits for service- members entering the physical evaluation board. (http://www.vba.va.gov/VBA/benefits/factsheets/general/peb.doc.) 37. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354:2024-33. 38. Studdert DM, Thomas EJ, Burstin HR, Zbar BI, Orav EJ, Bren- nan TA. Negligent care and malpractice claiming behavior in Utah and Colorado. Med Care 2000;38:250-60. 39. Localio AR, Lawthers AG, Brennan TA, et al. Relation be- tween malpractice claims and adverse events due to negligence: results of the Harvard Medical Practice Study III. N Engl J Med 1991;325:245-51. 40. Hickson GB, Clayton EW, Githens PB, Sloan FA. Factors that prompted families to f ile medical malpractice claims following perinatal injuries. JAMA 1992;267:1359-63. 41. Mello MM, Brennan TA. Deterrence of medical errors: theory and evidence for malpractice reform. Tex Law Rev 2002;80:1595-637. 42. 10 U.S.C. § 1089(f ) (2011). 43. Figley P. In defense of Feres: an unfairly maligned opinion. Am Univ Law Rev 2010;60:393-471. 44. Wounded Warrior Act, Pub. L. No. 110-181, div. A, tit. XVI, January 28, 2008, 122 Stat. 430, 485 (2008). 45. Gallagher TH, Waterman AD, Garbutt JM, et al. US and Canadian physicians‘ attitudes and experiences regarding disclosing errors to patients. Arch Intern Med 2006;166:160511. 46. Mello MM, Studdert DM, Kachalia AB, Brennan TA. ―Health courts‖ and accountability for patient safety. Milbank Q 2006;84:459-92. Copyright © 2011 Massachusetts Medical Society
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* Eligibility Service members with <20 years‘ service who are found unfit for further military service and whose disability rating is ≤20% Service members who have been determined to be unfit to perform their duties because of their disability and have either ≥20 years‘ service or a disability rating of ≥30% Disabled veterans with a disability rating of 10 to 100% Benefit
One-time disability severance payment based on disability rating and years of service Monthly disability payments that increase with severity of disability Tax-free monthly disability payments that increase with severity of disability, inability to maintain employ- ment, and existence of spouse and dependents Additional monthly compensation
DOD disability retired pay*
VA disability compensation*
Special monthly compensation for
Disabled veterans who have lost the use of certain
serious disabilities Aid and attendance allowance Housebound allowance To families of deceased service members Death gratuity
organs or extremities Severely disabled veterans in need of regular aid and assistance Severely disabled veterans who are housebound
Additional monthly compensation based on determination of need Additional $2,993 per month
Dependency compensation
Monthly payment of at least $1,154, with increases for dependent children and spousal hardship. Typically, persons cannot concurrently receive both Department of Defense (DOD) and Veterans Affairs (VA) disability payments for disabilities that were not sustained in a combat zone. However, veterans with 20 or more years of service and a VA disability rating of 50% or more can receive both benefits simultaneously.
and
indemnity
A recipient can be designated by a service member for all or a portion of this gratuity, with remaining amounts paid to spouse, children, or parents Eligible spouses, children, and sometimes parents
$100,000 lump-sum payment
Third, by law, VA disability payments for lost income compensate veterans only for the ―aver- age impairments of earning capacity resulting from such injuries in civil occupations‖ (Table 1). The system has been criticized for failing to ascertain how well the disabilityrating scheme correlates with a person‘s ability to work or whether compensation levels (based on disability rating) accurately reflect average lost income. For some service members, the gap between disability payments and actual lost income can be large. Consider a military surgeon who has a catastrophic reaction to a drug that was negligently administered at a military hospital and resulted in cognitive deficits that prevent her from practicing medicine. A civil lawsuit would probably provide annual compensation in the hundreds of thousands of dollars primarily on the basis of lost earning potential. However, assuming she is found to be 100% disabled and has served for a period of less than 20 years, her military disability payments would be only $2,673 per month, with supplemental benefits if she had dependents, had lost a limb or her vision, was permanently housebound, or required regular assistance. Because the recovery available from the military does not approach that available in the tort system, the double-recovery rationale underlying the Feres rule is weak. Furthermore, the judicial system does not apply this rationale consistently. The availability of other sources of compensation, such as private health insurance, does not prevent civilians from filing tort claims. Rather, many states simply require that the value of such benefits be deducted from malpractice awards. Critics of the Feres doctrine also find the military-discipline rationale unpersuasive. Few medical malpractice claims implicate strategic military decisions in such a way that judicial involvement would threaten the smooth functioning of military operations. Even arguments that pertain to the military‘s decisions concerning al- location of personnel or other resources are weak because medical malpractice claims by veterans and dependents of service members raise this same concern yet are permitted. Finally, the Feres rule creates perverse results. Although an injured service member cannot sue his physician, family members who receive care from the same military doctor can. For example, when substandard prenatal care injures an active service member and her newborn, the infant may sue but the service member may not. The argument that only one of these suits would jeopardize military discipline and discretion is difficult to sustain.
RepealoftheferesDoctrine:AnImperfectSolution Some commentators, including veterans groups, advocate repealing the Feres doctrine and shifting to a civil liability system. In the past 5 years, the Supreme Court has declined
to hear at least four cases in which the Feres rule barred malpractice claims, most recently in 2011, suggesting that it is not likely to overturn its previous decision. Against this backdrop, opponents have attempted to repeal it legislatively. In 2009, Representative Maurice Hinchey (D-NY) introduced unsuccessful legislation to exclude from the Feres rule medical malpractice claims arising from care provided in noncombat settings. Previously, similar bills have passed the House but not the Senate. Even though the reasoning underlying the Feres doctrine is questionable, repealing it may not serve the best interests of service members. Concerns about inefficiency and limited governmental resources militate against providing access to both the tort system and the disability- compensation system, particularly since service members and veterans receive free care through the military health system, nor would it be desirable to make tort litigation the exclusive remedy. Overhead costs in the tort system are very high, and although tort suits theoretically provide more generous benefits than the military disability system, in practice it can be difficult to recover damages in lawsuits. Fairness demands that compensation systems for medical injuries be reasonably accessible to those injured through malpractice. However, the civil justice system is notoriously underutilized as a remedy for medical malpractice and can be onerous for those who do pursue claims. Only an estimated 2 to 3% of civilian patients injured by provider negligence sue. The need for attorney representation, as well as the difficulty in obtaining it faced by patients with modest or difficult- to-prove injuries, pose substantial barriers. Mal- practice litigation is typically highly adversarial, expensive, protracted, and emotionally fraught. Accessibility problems also plague the military‘s disability benefits scheme: the DOD and VA operate independent, byzantine systems of disability evaluation that use different procedures and rating scales. Each evaluation takes months to complete, and it can take years for an appeal to be addressed. However, these problems are more mutable than those of the tort system, which is decentralized and shaped by entrenched judicial rules and a contingent-fee system for plaintiff attorneys. Another issue is that to receive compensation, active service members currently need to prove only the degree of their disability, that their disability is service-related, and that they were not dishonorably discharged. In contrast, tort litigation requires proof that medical negligence caused the injury. Difficulties in providing such proof preclude compensation for many plaintiffs, prevent many others from bringing suit, and lead to inaccuracies and inequities in compensation awards. In the military context, the challenges of gathering evidence and establishing the legal standard of care in medical settings that differ radically from domestic, non crisis contexts would further complicate the process. Overall, access to the tort system would probably not result in improved injury compensation for most service members. Also, a tort remedy would probably not improve the problems related to quality in the military health system. Deterrence of medical negligence is commonly cited as a major objective of tort law, and the desire to hold their physician accountable is a key reason malpractice plaintiffs sue. However, there is little empirical evidence that civilian malpractice litigation provides incentives to improve the safety of care. Deterrence fails partially because most instances of substandard care do not result in claims, and because physicians‘ malpractice insurance premiums generally do not increase even if their risk profile changes owing to more claims being brought.
The deterrent effect may be further enervated in the military context. Even if the Feres rule were changed, another federal statute insulates individual military physicians from malpractice liability, minimizing the effect on individual providers; furthermore, the FTCA prohibits punitive damages awards. Lawsuits could theoretically send a deterrent signal to the military health care system, but FTCA judgments and settlements greater than $2,500 are paid from a general federal fund rather than from individual agency appropriations. As a result, the financial sanctions from tort awards would not be felt specifically by the DOD — the agency best situated to improve care. I m p r o v i n g t h e M i l i ta r y ‘ s R e s p o n s e t o M a l p r a c t i c e Rather than repealing the Feres doctrine, reform of the military‘s response to medical malpractice should focus on improving the military‘s current, administrative approach to medical injury compensation. Strengthening the military benefits scheme would better assist victims of malpractice and facilitate quality improvement within the military health system. Widespread dissatisfaction with the military disability system has spurred attempts in recent years to improve the system. In 2007, the Dole– Shalala Commission found that among military service members and veterans who had been wounded in Iraq or Afghanistan and required medical evacuation, fewer than 40% were satisfied with the current disability evaluation system and just over 40% felt that they fully understood it. The Institute of Medicine, expressing concerns that benefits did not reflect the average loss of earnings, recommended an analysis of the adequacy of benefits and the effectiveness and quality of the rating system, in addition to recommending that benefits be awarded for the effects of disability on quality of life. The 2007 report of the Veterans‘ Disability Benefits Commission recommended an immediate interim increase of up to 25% in disability compensation while a more systematic approach to calculating appropriate benefits was developed. Benefits have since risen, but at nowhere near the 25% increase recommended. Some of these concerns were addressed with the 2008 passage of the Wounded Warrior Act, 44 which requires that the DOD use VA guidelines when assessing disability, if possible, and that the agencies report on the feasibility of eventually merging their systems. This Act also authorized pilot programs to address inconsistent disability evaluations and systemic delays in processing benefit requests. Although not specific to compensation for medical injuries, these reforms should lower barriers to accessing compensation for service members with malpractice-related injuries. Unfortunately, the Wounded Warrior Act does not ensure that compensation levels capture the full impact of disability. It makes small inroads in plans for increasing compensation by, for example, discontinuing the practice of reducing VA disability compensation by the amount of disability severance when the injury is sustained in a combat zone. However, additional reforms are needed. First, compensation levels for lost earnings should reflect the service member‘s actual past and projected future losses, rather than approximating average lost earnings. Second, compensation should be available for other elements of economic loss, as well as for diminished quality of life. Third, increased compensation should be available for temporary, serious disabilities. Finally, a unified process of interagency claims should be implemented, as envisioned by the Wounded Warrior Act. These
reforms would enable service members to enjoy many of the benefits that the tort system provides without its burdens. Reforms are also needed to ensure that the disability claims system does more than provide compensation in individual cases. A more accessible system, by facilitating more frequent claims, would send stronger quality signals and provide greater incentives for improvement. Paying claims from agency-specific funds would reinforce this signal‘s strength. In addition, as is the case in the civilian sector, there is considerable room for improvement in transparency surrounding adverse events and in the extent to which data from the claims system are systematically studied and used to improve patient safety. In both military and civilian health care, cultural and practical barriers hinder full and honest disclosure of unanticipated outcomes to patients. The military‘s hierarchical structure may fortify some of these barriers. However, one major barrier in the civilian context — the threat of litigation — does not exist in the military, presenting an opportunity to move forward with a more open approach to medical errors. Greater transparency would alert patients to their right to seek disability compensation while facilitating learning about medical error. Administrative compensation systems for medical injuries can also contribute to improved patient safety by aggregating data that shed light on the causes of medical injuries. As a potentially centralized, administrative system of compensation, the military‘s disability benefits scheme is well positioned to analyze information about harmful medical injuries and thus effect systematic improvements in care. While these improvements may be occurring behind the scenes, increased transparency about lessons learned could result in greater accountability and a stronger impetus for improving quality of care. Disability claims databases are quite comprehensive, capturing permanent medical injuries regardless of the degree of error or fault, and would become even more comprehensive if temporary injuries were compensable. Conclusion Although the Feres doctrine is controversial in that it introduces a seemingly indefensible inequity between civilians and active-duty service members injured as a result of malpractice, eliminating the rule would replace one injustice with another. Few would consider the tort system a well-performing injury-compensation scheme or an effective force for improving health care quality. The problems with the military‘s administrative compensation scheme are myriad but are fairly tractable when compared with those of the tort system. Improving the levels, types, and accessibility of disability benefits, as well as making better use of claims data to improve military health care, would do a great deal to meet the needs of those who serve their country. Disclosure forms provided by the authors are available with the full text of this article at NEJM.org. We thank Elizabeth Abernathey for research assistance. From the Department of Medicine, University of Chicago Medical Center, Chicago (S.S.M.); and the Department of Health Policy and Management, Harvard School of Public Health, Bos- ton (L.M., M.M.M.).
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