Plaintiff Joseph Ocello served in training with the United States Marine Corps from April 15, 1982 to June 12, 1982. During that period, plaintiff suffered numerous fainting spells and consequently was treated by Drs. Egan, Brownlow, Gardner, Howell, Burton, Poston, and Harper (the individual defendants) -- all employees of the U.S. Navy or Marine Corps. The individual defendants failed to find or diagnose a brain tumor existing at that time. The tumor was found at a later date and was surgically removed. As a consequence of the tumor and the surgery, plaintiff suffered severe neurological damage and is permanently disabled. If the individual defendants had located the tumor, it could have been removed with little damage to plaintiff's health.
Plaintiff sought Veterans Benefits for his disability but was denied recovery, ultimately by the Board of Veterans Appeals. Subsequently, plaintiff filed this action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, against the United States, the U.S. Marine Corps, the U.S. Navy, and the individual defendants.
A. Defendant United States
The government contends that plaintiff's claims are barred by Feres v. United States, which held that the Federal Tort Claims Act does not permit suits for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. 135, 146, 71 S. Ct. 153, 95 L. Ed. 152 (1950).
Courts have routinely held that claims for medical malpractice occurring during plaintiff's military service and committed by military physicians are claims "incident to service in the armed forces" under Feres. The Third Circuit has recently but reluctantly reaffirmed that the Feres doctrine applies to claims for medical malpractice against military physicians. See Loughney v. United States, 839 F.2d 186, 187 & n.2 (3d Cir. 1988).
Plaintiff, acknowledging the validity of this general rule, contends that Feres is inapplicable to this case because the Veterans Administration denied his claim for disability benefits. The Supreme Court considered the existence of a scheme of statutory disability benefits as an "independent" rationale supporting the Feres restriction on Federal Torts Claims Act suits. See United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 2068, 95 L. Ed. 2d 648 (1987) (citing Feres, 340 U.S. at 140). However, the unavailability of disability benefits in this particular case does not lift the Feres bar. In Loughney, the Third Circuit rejected a parallel argument with respect to a different rationale for Feres -- that negligence suits against military personnel would undermine military order and discipline. The court held that whether or not a particular suit would undermine discipline is irrelevant to a determination of Feres ' application -- "It is simply the military status of the claimant that is dispositive." 839 F.2d at 188. Similarly, a case-by-case determination as to the availability of alternative statutory remedies is inappropriate. Cf. Hall v. United States, 528 F. Supp. 963, 965 n.2 (D.N.J. 1981) (applying Feres despite an indication that plaintiff had been denied statutory relief), aff'd, 688 F.2d 821 (3d Cir. 1982).
Plaintiff argues that the United States, by denying plaintiff's application for disability benefits, admitted that plaintiff's injuries were not related to his military service. By virtue of this admission, contends plaintiff, Feres is inapplicable. Plaintiff's contention, though understandable under these frustrating circumstances, fails. Plaintiff's Federal Tort Claims Act claims, alleging that his injuries were caused by malpractice, are plainly barred by Feres. See, e.g., Loughney, 839 F.2d at 187. The conclusion of the Board of Veterans Appeals that, in fact, plaintiff's injuries were not aggravated by any event occurring during the service -- including the individual defendants' treatment -- is not inconsistent with this application of Feres.
The court grants the motion of the defendant United States for dismissal of plaintiff's complaint.
B. Defendants U.S. Marine Corps and U.S. Navy
The Federal Torts Claims Act provides a limited waiver of immunity for tort claims against the United States as a defendant. 28 U.S.C. § 1346(b). Congress has expressly indicated that this waiver does not permit suits against federal agencies. See 28 U.S.C. § 2679(a).
The court grants the motions of defendants U.S. Marine Corps and U.S. Navy to dismiss plaintiff's complaint.
C. Individual defendants
The Gonzalez Act, 10 U.S.C. § 1089(a), provides immunity to armed forces medical personnel for alleged medical malpractice committed within the scope of their duties or employment -- plaintiff's exclusive remedy for such a claim is against the United States under the Federal Tort Claims Act. Furthermore, dismissal under this provision is required even if Feres bars plaintiff's statutory claims against the United States. See, e.g., Loughney v. United States, 839 F.2d 186, 187 & n.1 (3d Cir. 1988); Hall v. United States, 528 F. Supp. 963, 965 (D.N.J. 1981), aff'd, 688 F.2d 821 (3d Cir. 1982).
The court grants the individual defendants' motion to dismiss plaintiff's complaint.
The court, following binding precedent, dismisses plaintiff's complaint as to all defendants.
Judicial voices more powerful than that of this court have expressed their dissatisfaction with the Feres doctrine. See, e.g., United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 2071-76, 95 L. Ed. 2d 648 (1987) (Scalia, J., dissenting, with Brennan, Marshall, and Stevens, JJ.); Loughney v. United States, 839 F.2d 186, 187 n.2 (3d Cir. 1988) (citing Peluso v. United States, 474 F.2d 605, 606 (3d Cir. 1973)). The court, while concurring with these critics, finds that this matter raises a different but related concern.
Federal statutory law precludes this court from reviewing the decision of the Board of Veterans Appeals. 38 U.S.C. § 211(a). However, nothing prevents the court from commenting on the Board's treatment of plaintiff's claim for disability benefits.
The Board was required to determine whether plaintiff's injuries were contracted in the line of military duty or whether a previous injury was aggravated in the line of military duty. 38 U.S.C. § 331. The bulk of the Board's opinion denying plaintiff's claims discusses whether plaintiff's tumor arose during his brief stint in the service or whether the tumor was aggravated by the rigors of plaintiff's training activities. The only portion of the decision relating in any way to plaintiff's malpractice claim is as follows:
We have considered the contention that more extensive studies should have been carried out in service. Nevertheless, we are required to render a decision based on the available evidence. A reasonable doubt that can be resolved in favor of the veteran has not been shown in this case.
The Board concluded its discussion by stating:
The Board does not believe that there is medical complexity or controversy involved in this case such as to require the opinion of an independent medical expert outside the Veterans Administration. We also do not believe that other development is needed at this time in order to effectuate a fair and proper decision.