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December 22, 1981

Glenna HALL, Administratrix Ad Prosequendum and General Administratrix for the Estate of Velda Hall, deceased, and Glenna Hall, individually, Plaintiff,
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

The opinion of the court was delivered by: GERRY

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. *fn1"

 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. *fn2"

 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 ...

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