Congress Addresses Issue

Stobridge also said it is a “long shot” that any reintroduction of a bill to abolish the Feres Doctrine would pass Congress this session, because the issue is controversial and other matters are claiming legislative attention.

Two years ago, the last time the bill was introduced, Hinchey told a House subcommittee that his bill would “bring accountability into the military-medical system” and afford troops and their families the same rights others have when it comes to medical malpractice.

He said the legislation would prohibit any claim arising out of the combatant activities of the armed forces during times of armed conflict, continuing to exempt military medical personnel working in combat. In addition, the legislation would require the payment of any claims to be reduced by the values of other federal benefits receives as a result of the injury.

John Altenburg, a retired major general who served 28 years as a lawyer in the Army, argued against the bill in his testimony, saying the military already had processes in place  to enforce medical standards and improve medical care in the military such as “as peer reviews, credentialing actions, quality-assurance programs, reports to state licensing agencies, command investigations including [Inspector General] inquiries and [Uniform Code of Military Justice] actions.”

He also pointed out that injured servicemembers already receive compensation, adding, “It has been compared to Workman’s Compensation,” he said. Altenburg suggested then that, rather than overturning the Feres Doctrine, Congress could enhance benefits to better address situations where better compensation may be warranted.

Still, Eugene R. Fidell, Esq., president of the National Institute of Military Justice, who supported Hinchey’s bill, pointed out that there were no congressional proposals to do that.

“Expectations in our society are that medical malpractice, the failure to observe the applicable standard of care, ordinarily is compensated through at least pain and suffering type compensation,” he said. “I haven’t seen a proposal that would expand the normal benefits system established either for the Department of Veterans’ Affairs, or for the active-duty force through the military services that would in any way approach the kinds of pain and suffering compensation that all of us in this room would be entitled to if, God forbid, we were the victim of medical malpractice.”

The Congressional Budget Office estimated if the bill had passed, it would have increased the number of medical-malpractice claims against DoD by about 750 per year, with about 250 claims resulting in monetary settlements or awards at a total cost of about $2.7 billion. 

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