Hall v. United States

• Decision Date: 22 December 1981
• Docket Number: Civ. A. No. 81-2142.
• Citation: 528 F. Supp. 963
• Parties: Glenna HALL, Administratrix Ad Prosequendum and General Administratrix for the Estate of Velda Hall, deceased, and Glenna Hall, individually, Plaintiff, v. The UNITED STATES of America, The State of New Jersey, Dr. James V. Ortman, Dr. John F. Ledlie, Dr. George R. McWhorter, Dr. John Doe One, Dr. John Doe Two, John Doe Three and John Doe Four, jointly, severally and in the alternative, Defendants.
• Court: U.S. District Court — District of New Jersey

528 F. Supp. 963

Glenna HALL, Administratrix Ad Prosequendum and General Administratrix for the Estate of Velda Hall, deceased, and Glenna Hall, individually, Plaintiff, v. The UNITED STATES of America, The State of New Jersey, Dr. James V. Ortman, Dr. John F. Ledlie, Dr. George R. McWhorter, Dr. John Doe One, Dr. John Doe Two, John Doe Three and John Doe Four, jointly, severally and in the alternative, Defendants.

Civ. A. No. 81-2142.

United States District Court, D. New Jersey.

December 22, 1981.

Barry J. Hockfield, Hockfield & Levine, Cherry Hill, N. J., for plaintiff.

U. S. Atty. William W. Robertson by G. Donald Haneke, Asst. U. S. Atty., Trenton, N. J., for Defendants The United States of America, Dr. James V. Ortman, Dr. John F. Ledlie, Dr. George R. McWhorter, Dr. John Doe One, Dr. John Doe Two, John Doe Three and John Doe Four.

OPINION

GERRY, District Judge.

Plaintiff Glenna Hall, individually and as Administratrix Ad Prosequendum of her daughter's estate, seeks monetary damages against the United States and several military physicians and/or other medical personnel for medical malpractice. Plaintiff charges that the physicians' negligence in decedent's pre-induction examination and subsequent treatment of the decedent during basic combat training, resulted in her death. The plaintiff asserts jurisdiction under the Federal Tort Claims Act, 28 U.S.C. § 1346 (FTCA). Plaintiff also names as a party defendant, and seeks monetary damages against, the State of New Jersey, as maintainer and operator of the Army National Guard unit in which the decedent Velda Hall enlisted. In Counts 3, 4, 7 and 8 of the complaint, the plaintiff charges the state with negligence in and a breach of warranty as to provision of medical care to enlistee Hall.

On motion of defendant State of New Jersey on September 18, 1981, this court, in an oral opinion, dismissed the complaint as to the State defendant on the ground that the Eleventh Amendment to the United States Constitution deprives the court of jurisdiction over suits for damages against a state. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Now the federal defendants also move for dismissal of the complaint.

On or about June 27, 1980, Velda Hall enlisted in the New Jersey Army National Guard. Three weeks later, Ms. Hall reported to the Armed Forces Examination and Entrance Section in Philadelphia for a medical examination to ascertain her fitness for military training. On the basis of that examination, military physicians, named here as individual defendants, pronounced decedent physically and mentally fit for military service. The Army immediately transported Ms. Hall to Fort McClellan, Alabama, to begin a six month regimen of combat training.

About three weeks into that training, on August 9, 1980, Ms. Hall was admitted to Fort McClellan's Noble Army Hospital, suffering from a high fever. Three days later, Ms. Hall died, apparently of a sort of pneumonia.¹

Plaintiff alleges that military doctors in Philadelphia negligently examined and certified the decedent as medically fit for active military service. Plaintiff further alleges that military physicians at Fort McClellan failed properly to diagnose and treat Ms. Hall, such negligence proximately causing her death.

Plaintiff seeks monetary damages against both the physicians as individuals and against the United States for decedent's pain and suffering and for the pecuniary loss to her estate. While she claims jurisdiction solely under the FTCA, plaintiff also alleges a breach of warranty to provide decent medical care inherent in the enlistment contract. In that vein, plaintiff urges that as consideration for Velda Hall's enlistment, the United States warranted to provide quality medical care and treatment for the decedent, and that the Government breached the warranty in its provision of negligent treatment to Ms. Hall.

Defendant moves to dismiss the complaint under F.R.C.P. 12(b)(6), for failure to state a cognizable claim. It argues that the individual military doctors enjoy statutory immunity from suit for tortious medical care. 10 U.S.C. § 1089 (1976). (The Gonzalez Bill.) By its terms, in the Government's view, 10 U.S.C. § 1089 provides that the exclusive remedy, if any, for malpractice by a Government physician, is an action against the United States under the FTCA. Moreover, overwhelming authority, according to defendant, precludes an action by a serviceman or woman under the FTCA for negligence against another member of the armed forces, for injuries arising out of or incident to military service. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Therefore, defendant argues, plaintiff's only avenue of relief lies within the scheme of legislatively provided veterans benefits and/or service related disability programs established by Congress.²

In response to plaintiff's theory of breach of warranty, defendant maintains that mere denomination of the claim as "contractual" does not alter the claim's tortious essence. Such nomenclature cannot, in defendant's view, circumvent the conjuncture of immunities for individual doctors and the Government afforded by statutory and decisional law. Alternatively, assuming that plaintiff's claim does sound in contract, defendant urges that the Court of Claims enjoys exclusive jurisdiction to hear the matter.

I. Claims Against the Individual Military Medical Personnel.

The Gonzalez Bill, 10 U.S.C. § 1089, effectively grants immunity to the individual defendants for negligent medical malpractice. The statute reads in pertinent part:

Defense of certain suits arising out of medical malpractice

(a) The remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of the armed forces, the Department of Defense, or the Central Intelligence Agency in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties or employment therein or therefor shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) whose act or omission gave rise to such action or proceeding.

10 U.S.C. § 1089(a) (1976). Indeed, Congress enacted 10 U.S.C. § 1089 intentionally to eliminate the need for personal malpractice insurance for all government medical personnel. S.Rep.No. 94-1264, 94th Cong., 2d Sess., reprinted in (1976) U.S.Code Cong. & Ad.News 4443. See Hernandez v. Koch, 443 F.Supp. 347, 349 (D.D.C.1977). Thus, plaintiff's sole recourse here lies in an action against the United States under the FTCA, 28 U.S.C. § 1346.

II. Claims Against the United States Under the Federal Tort Claims Act.

In Feres v. United States, the Supreme Court consolidated three claims sounding in tort by servicemen, or their estate executors, under the FTCA. In Feres v. United States,³ decedent had perished in a fire in a barracks in Camp Pine, New York, while on active duty. In Jefferson v. United States,⁴ plaintiff serviceman sued Army doctors for leaving behind an 18" by 30" towel in his stomach during an abdominal operation. In Griggs v. United States,⁵ decedent's executrix alleged that the victim died as a consequence of negligent medical care by defendant Army surgeons. In each of the three cases, said the Court, the "common fact" was that claimant, while on active duty, sustained injury due to the negligence of others in the armed forces.⁶

While admitting that the FTCA by its terms did not preclude these suits,⁷ the Court interpreted the statute to bar tort claims by a serviceperson against other military personnel for injuries sustained "incident to service."

In the Feres Court's view, three factors counseled against interpreting the Act as it read, and in favor of finding a broad prescription of suits by injured military personnel against other military personnel. First, the FTCA constituted the Government's waiver of sovereign immunity only under circumstances from which would arise private liability. 340 U.S. at 141, 71 S.Ct. at 156; 28 U.S.C. § 2674. The Court, however, could find no liability of a private individual remotely analogous to the liability asserted against the United States in a military context.

We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. ... Nor is there any liability "under like circumstances" (quoting the statute) for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. ... The FTCA's effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.

340 U.S. at 141-42, 71 S.Ct. at 157.

Second, the Court emphasized the irrationality of subjecting the "distinctly federal" relationship between the Government and its soldiers to the varying tort laws of each state, as would be required by the FTCA's rule that the law of the place of the injury governs the claim. 28 U.S.C. § 1346(b). To make the legal recourse of servicepersons depend upon their location — over which they exercise no control — would violate that "distinctly federal" character of the military relationship. 340 U.S. at 142-43, 71 S.Ct. at 157.

Finally, the Feres Court noted the existence of a comprehensive legislative scheme of benefits for service related injuries as a factor persuasive of eliminating the FTCA as a remedy...