Joyce Atkinson says it began when a woman she had never seen before, or since, came into her Army hospital room. The stranger, dressed in white like a nurse but without a nametag, slipped a note into Atkinson`s hand and left.
Atkinson, then a 28-year-old enlisted soldier, remembered she was terribly ill at the time. After swelling to nearly 300 pounds and suffering high fevers, she had delivered a stillborn child and a chaplain had given her last rites, she said.
”When I read the note, it said: `Make sure you see an attorney. Don`t let them get away with this,` ” said Atkinson, who now lives in suburban Philadelphia with her other two children.
That stay at Tripler Army Medical Center in Honolulu has evolved into a serious challenge of a 1950 Supreme Court decision that prevents uniformed military service members from suing the federal government.
Atkinson followed her mysterious visitor`s advice, and on Nov. 14 the 9th Circuit Court of Appeals in California ruled that her case was legitimate.
If Atkinson continues to prevail, 2 million uniformed members of the U.S. military could for the first time be allowed to sue the government for medical malpractice, just as civilians do now.
”It drives a significant wedge into a government doctrine that limits military liability,” said Rep. Dan Glickman (D., Kan.), one of several congressmen who have been pushing legislation that would similarly allow service members to sue for malpractice.
”There are no other cases that have gotten this far successfully,”
Glickman said.
The change could cost the federal treasury $25 million annually in malpractice settlements and judgments, the Congressional Budget Office has estimated.
Money is the least of the penalties, the Pentagon warns. Allowing soldiers to take their cases to a civilian court cuts at the heart of the discipline and order necessary to keep a fighting force fit, the Defense Department contends.
But even if Atkinson`s case is overturned somewhere along the judicial path, the Pentagon can expect Congress again to attack its 35-year immunity from service members` malpractice suits.
Legislation to allow military malpractice suits easily passed the Democratic-controlled House in 1985, but stalled in the Republican-led Senate. With the Democrats retaking control of the Senate, advocates of the change are optimistic of legislative, if not judicial, change.
”The fact that the 9th Circuit moved is no reason for us not to move,”
said Rep. Barney Frank, (D., Mass.), sponsor of the legislative change.
Until 1946, no one had a clear-cut right to sue the federal government. But that year, Congress passed the Federal Tort Claims Act, which said the government should be liable ”in the same manner and to the same extent as a private individual under like circumstances.”
The military was not specifically mentioned, nor was it specifically exempted.
But in 1950, in what has become known as the Feres Doctrine, the Supreme Court ruled that the Federal Tort Claims Act did not apply to service members. The Feres Doctrine is named after a soldier who died in a barracks fire in Pine Camp, N.Y. His widow sued, claiming that the barracks heating system was known to be faulty and that routine safety precautions were ignored.
Besides the military`s unique need for order and discipline, the Supreme Court decided it would be unfair to decide service members` lawsuits differently in different states and that the Pentagon already had medical and pension systems to take care of victims of wrongful acts.
Now Atkinson`s lawsuit gives the courts a clear-cut opportunity to show if they`ve shifted their interpretation of the law.
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The Pentagon already is paying out millions of dollars a year on medical malpractice claims brought by military dependents and retirees who do have the right to sue.
The Pentagon paid $41.3 million in such medical malpractice suits in 1984, according to Defense Department health authorities. Of the 854 lawsuits filed that year, about one-fourth came from alleged malpractice in gynecology or obstetrics.
The average size of its medical malpractice awards and settlements in 1984 was $124,862, the Pentagon said.
The government has not admitted malpractice in Atkinson`s case, but it has paid $75,000 to the estate of her dead baby after she filed a claim seeking reimbursement for the child`s anticipated future earnings.
In her lawsuit, Atkinson is asking for $500,000 to compensate for her own mental and physical suffering because doctors failed to recognize and treat a condition called pre-eclampsia, a common and potentially life-threatening pregnancy complication.
The condition is dangerous to both mother and fetus because of the possibility of high blood pressure, kidney failure, stroke and premature birth, said her attorneys, Richard Fried of Honolulu and Alan Haley of Nevada City, Calif.
After repeatedly seeking help at the hospital, Atkinson said, she was sent home and went to sleep. ”When I woke up I couldn`t move from my shoulders on down. It was like numb. My stomach was hard. My body started turning a different color.”
”They were going to (bring) all my family to Hawaii at government expense because they didn`t know what else to do. The baby was still in my body, I think, for two days. The priest read me my last rites,” she said.
Although the Feres Doctrine has been repeatedly reaffirmed–three times by the Supreme Court in the last nine years–Atkinson`s attorneys argued, and the appeals court agreed, that the U.S. Supreme Court seems to have shifted its position subtly.
As in the past, the government`s lawyers argued that ”there is an absolute bar to suits by members of the United States military . . . for alleged malpractice committed by military doctors.”
But the three-judge panel of the 9th Circuit Court of Appeals wrote: ”We first note that pregnant servicewomen did not serve on active duty in 1950, when Feres was decided. Thus, the Supreme Court . . . could not have had in mind the unique facts involved in Atkinson`s case.”
And the court concluded that ”there is simply no connection between Atkinson`s medical treatment and the decisional or disciplinary interest protected by the Feres Doctrine.”
Fried put it more directly: ”What in the world does a gal who is pregnant who loses her baby have to do with national security?”