Kendrick v. U.S., s. 88-1350

• Decision Date: 26 July 1989
• Docket Number: 88-3891,Nos. 88-1350,s. 88-1350
• Citation: 877 F.2d 1201
• Parties: Gary W. KENDRICK; Shane Kendrick, a minor child, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. (Two Cases)
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1201

877 F.2d 1201

Gary W. KENDRICK; Shane Kendrick, a minor child Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. (Two Cases)

Nos. 88-1350, 88-3891.

United States Court of Appeals Fourth Circuit.

Argued March 7, 1989.

Decided June 16, 1989.

Rehearing and Rehearing In Banc Denied July 26, 1989.

Russell H. Putnam, Jr. (William Frederick Austin, P.A., Columbia, S.C., Chuck Richard Pardue, Kilpatrick & Pardue, Augusta, Ga., on brief), for plaintiffs-appellants.

Raymond Emery Clark, Asst. U.S. Atty., Columbia, S.C., (Vinton D. Lide, U.S. Atty. on brief), for defendant-appellee.

Before CHAPMAN and WILKINSON, Circuit Judges, and DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.

CHAPMAN, Circuit Judge:

This case presents the question of whether the doctrine established in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), bars an action brought under the Federal Tort Claims Act by an individual on the Army's Temporary Disability Retired List alleging medical malpractice. The appellant alleges that attending military physicians negligently continued to prescribe Dilantin, a potentially toxic drug, for a seizure disorder without adequately monitoring the level of such medication in his blood. A toxic level of Dilantin, the appellant contends, was the proximate cause of permanent brain damage. The district court held that the claim was barred under Feres and granted the government's motion for summary judgment. We affirm.

I.

This is a medical malpractice and loss of consortium case brought, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680, by the plaintiff and his minor son. After their administrative claim was denied by the United States Army Claims Service, the appellants/plaintiffs, Gary Kendrick ("Kendrick") and his son Shane Kendrick, filed suit in the United States District Court for the District of South Carolina in December 1987. This appeal is taken from the district court's granting of defendant's summary judgment motion upon finding that the action was barred because the alleged medical malpractice arose "out of or ... in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159.

On March 12, 1985, Kendrick, a sergeant on active duty in the United States Army, was injured in a motor vehicle accident. He was treated at Bassett Army Community Hospital, Fort Wainwright, Alaska, for a possible seizure disorder which was thought to have contributed to the accident. Attending military physicians prescribed Dilantin (100 milligrams three times per day) to control the seizure episodes. Kendrick continued Dilantin treatment until November 1985.

A Physical Evaluation Board considered Kendrick's medical condition in May 1985, and recommended that he be placed on the Army's Temporary Disability Retired List ("TDRL") because he was physically unfit for duty. On July 31, 1985, because of his continuing health problems Kendrick was placed on the TDRL, pursuant to 10 U.S.C. Sec. 1202. In September 1985, Kendrick alleges he began to experience memory loss, difficulty in walking, and other symptoms consistent with Dilantin toxicity. In early November 1985, Kendrick was medically evaluated at Moncrief Army Hospital, Fort Jackson, South Carolina. He continued to receive Dilantin treatment at the prescribed dosage until November 6, 1985. On November 27, 1985, he was referred to Don C. Abbott, M.D., who diagnosed temporary trunkal cerebellar ataxia probably secondary to Dilantin toxicity. Subsequent evaluations in March 1986 and February 1987 showed continued cerebellar dysfunction. In March 1987, Kendrick was evaluated by an informal Physical Evaluation Board at Fort Gordon, Georgia, and following formal review in April 1987, he was given permanent retirement status on June 5, 1987, with a fifty percent disability rating. The permanent disability rating took into account the probable relation between Kendrick's cerebellar disturbance and the Dilantin toxicity.

Kendrick's complaint alleges that various military physicians negligently continued to prescribe Dilantin without adequately monitoring the level of medication in his blood. Kendrick further avers that this failure to monitor the level of Dilantin led to a dangerous state of toxicity, resulting in permanent brain damage. According to Kendrick, the alleged acts of medical malpractice occurred between August 1, 1985, when he contends symptoms of toxicity were first noticed, and November 1985, when he discontinued taking Dilantin. During this time he was on TDRL status. The government contends that the alleged unmonitored overdose of Dilantin and resultant toxicity began with medical treatment provided while Kendrick was on active duty, and the same course of treatment continued while he was in a TDRL status, and it therefore arises out of activity incident to service.

II.

The government's motion to dismiss this action pursuant to Rule 12(b)(1) or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure was based on the ground that plaintiff's claim is barred by the Feres doctrine. Feres and its progeny hold that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159. Since its inception, the Feres doctrine has been broadly and persuasively applied by federal courts and has now stood for nearly four decades without either legislative or significant judicial alteration. Indeed, the Supreme Court has consistently reaffirmed the Feres doctrine. See, e.g., United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977).

It is well established that receipt of medical care in military facilities by members of the military on active duty is "activity incident to service" and thus a lawsuit against the United States arising from medical treatment of a service member on active duty is barred under Feres. Rayner v. United States, 760 F.2d 1217 (11th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 149, 88 L.Ed.2d 123 (1985); Buckingham v. United States, 394 F.2d 483 (4th Cir.1968). The government maintains that the alleged unmonitored overdose of Dilantin began with medical treatment Kendrick was provided while on active duty, and the same course of treatment was continued after he was placed on the TDRL and was incident to his military service and thus barred by Feres.

Kendrick contends that when placed on the Army's TDRL he was "discharged, separated and retired" from active duty and relieved of military obligations, and any negligent treatment received while on TDRL was not "incident to service" nor barred by Feres. According to Kendrick, the injury occurred because of the failure to monitor while he was on the Army's TDRL and therefore should be considered separate and distinct from his initial injury and treatment.

The Temporary Disability Retired List was established under the authority of 10 U.S.C. Sec. 1202 and implemented pursuant to Chapter 7 of Army Regulation 635-40. TDRL status provides both the disabled service member and military authorities a season in which to assess the service member's physical condition and determine whether he should be retired from the military as a result of a physical disability. If permanent retirement is eventually required, the TDRL gives all concerned the time necessary for an accurate assessment of the appropriate percent of disability retirement pay to be extended to the injured service member.

Kendrick relies on Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), and United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), for the proposition that a service member, who is not on active duty nor subject to military control at the time of the injury, is not barred by Feres from bringing an FTCA suit against the government. A service member on the TDRL, Kendrick argues, is retired from active duty and sufficiently free from military control to avoid the Feres bar. In Brooks, ¹ supra, the Supreme Court permitted a soldier injured while on furlough to pursue a claim against the government under the FTCA. At the time of injury, the Feres court observed, Brooks was "under compulsion of no orders or duty and on no military mission." Feres, 340 U.S. at 146, 71 S.Ct. at 159. In Brown, supra, the Supreme Court held that Feres did not bar a suit brought by a veteran for medical malpractice against the United States for an injury he suffered in a Veterans Administration hospital as a result of treatment of his service-connected disability seven years after his discharge from the service.

We are unpersuaded that these two cases govern the case at bar. First, the focus of Feres is not upon when the injury occurs or when the claim becomes actionable, rather it is concerned with when and under what circumstances the negligent act occurs. Henning v. United States, 446 F.2d 774, 777 (3rd Cir.1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 676, 30 L.Ed.2d 664 (1972), citing Brown, 348 U.S. at 113, 75 S.Ct. at 143. The alleged negligent act of prescribing Dilantin without monitoring the patient's blood level commenced while Kendrick was on active duty under the care of military physicians. All of Kendrick's medical treatment arose out of an activity incident to service. Second, the Court in Brown placed great emphasis on Brown's "civilian status" as one of the distinguishing features between his claim and that of the plaintiffs in Feres. Unlike Brown, Kendrick was not a...