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OCELLO v. UNITED STATES

May 18, 1988

Joseph Ocello, Plaintiff,
v.
United States of America, et al., Defendants



The opinion of the court was delivered by: SAROKIN

 In this medical malpractice action involving armed forces physicians, defendants move to dismiss plaintiff's complaint or for summary judgment.

 INTRODUCTION

 Membership in the armed forces gives rise to dangers not encountered in ordinary civilian life. There are numerous valid and practical reasons to immunize the government from liability for acts of those who are responsible for the safety and discipline of soldiers. Risks may be encountered because of the exigencies which exist in the world of the military. An officer should not be subject to liability to those who may be injured as the result of negligence in preparation for or participation in battle. The mere potential or existence of such suits might affect discipline.

 However, how or why that immunity should extend to malpractice claims against military doctors, simply because their patients are members of the military, escapes logic and common sense -- particularly if the doctor is a civilian employee. Absent battlefield conditions, there is no just reason why the government should be immune from liability for the acts of a government doctor when those acts would trigger liability if performed in private practice.

 Those who volunteer their services to the defense of our country make numerous sacrifices and place their lives at risk. They reasonably may be expected to waive their rights to complain in court of injuries sustained in training or battle, but it is difficult to comprehend why their rights to expect competent medical attention, and to recover if they do not, are surrendered at the base entrance.

 The precedent in this area is so clear, however, that this court has no choice but to follow it. The court notes that courts which have so ruled have taken some small comfort from the existence of procedures which allow for disability compensation in such instances. As will be discussed hereafter, even that minimal comfort does not appear to exist in this case. The New York Times recently reported charges that the Board of Veterans Appeals devotes 7.8 minutes to the average appeal. N.Y. Times, May 8, 1988, (1, at 21. Plaintiff's appeal in this case, as to the issue of medical malpractice, may not have even reached this minimal average.

 BACKGROUND

 For the purposes of this motion, the court accepts the following facts as true.

 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.

 DISCUSSION

 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 ...


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