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[House Report 111-466]
[From the U.S. Government Publishing Office]

111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-466

======================================================================

 
     CARMELO RODRIGUEZ MILITARY MEDICAL ACCOUNTABILITY ACT OF 2009

                                _______
                                

 April 26, 2010.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1478]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 1478) to amend chapter 171 of title 28, United States 
Code, to allow members of the Armed Forces to sue the United 
States for damages for certain injuries caused by improper 
medical care, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................    10
Committee Consideration..........................................    11
Committee Votes..................................................    11
Committee Oversight Findings.....................................    14
New Budget Authority and Tax Expenditures........................    14
Congressional Budget Office Cost Estimate........................    14
Performance Goals and Objectives.................................    17
Constitutional Authority Statement...............................    17
Advisory on Earmarks.............................................    17
Section-by-Section Analysis......................................    17
Changes in Existing Law Made by the Bill, as Reported............    18
Dissenting Views.................................................    20

                             The Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Carmelo Rodriguez Military Medical 
Accountability Act of 2009''.

SEC. 2. ALLOWANCE OF CLAIMS BY MEMBERS OF THE ARMED FORCES AGAINST THE 
                    UNITED STATES FOR CERTAIN INJURIES CAUSED BY 
                    IMPROPER MEDICAL CARE.

  (a) In General.--Chapter 171 of title 28, United States Code, is 
amended by adding at the end the following:

``Sec. 2681. Certain claims by members of the Armed Forces of the 
                    United States

  ``(a) A claim may be brought against the United States under this 
chapter for damages relating to the personal injury or death of a 
member of the Armed Forces of the United States arising out of a 
negligent or wrongful act or omission in the performance of medical, 
dental, or related health care functions (including clinical studies 
and investigations) that is provided by a person acting within the 
scope of the office or employment of that person by or at the direction 
of the Government of the United States, whether inside or outside the 
United States.
  ``(b) A claim under this section shall not be reduced by the amount 
of any benefit received under subchapter III (relating to 
Servicemembers' Group Life Insurance) of chapter 19 of title 38.
  ``(c) This section does not apply to any claim arising out of the 
combatant activities of the Armed Forces during time of armed conflict.
  ``(d) For purposes of claims brought under this section--
          ``(1) subsections (j) and (k) of section 2680 do not apply; 
        and
          ``(2) in the case of an act or omission occurring outside the 
        United States, the `law of the place where the act or omission 
        occurred' shall be deemed to be the law of the place of 
        domicile of the plaintiff.
  ``(e) As used in this section, the term `a negligent or wrongful act 
or omission in the performance of medical, dental, or related health 
care functions (including clinical studies and investigations)' has the 
same meaning given that term for purposes of section 1089(e) of title 
10.''.
  (b) Technical and Conforming Amendment.--The table of sections for 
chapter 171 of title 28, United States Code, is amended by adding at 
the end the following:

``2681. Certain claims by members of the Armed Forces of the United 
States.''.

  (c) Effective Date.--The amendments made by this section shall apply 
with respect to a claim arising on or after January 1, 1997, and any 
period of limitation that applies to such a claim arising before the 
date of enactment of this Act shall begin to run on the date of that 
enactment.

                          Purpose and Summary

    H.R. 1478 would amend the Federal Tort Claims Act 
(FTCA),\1\ by adding a new section 2681 to chapter 171 of title 
28 of the United States Code, to allow service members to sue 
for damages when they are harmed by medical malpractice 
committed by government-employed or -directed healthcare 
providers. This will ensure accountability in the military 
medical system, extending to active-duty military service 
members and their families rights that civilians currently 
possess.
---------------------------------------------------------------------------
    \1\28 U.S.C. Sec. Sec. 1346(b)(1), 2671-2680.
---------------------------------------------------------------------------
    Section 2681 would not apply to ``any claim arising out of 
the combatant activities of the Armed Forces during time of 
armed conflict.''\2\ Under current law, the FTCA already 
prohibits claims ``arising out of the combatant activities . . 
. during time of war.''\3\ But this exclusion has been 
interpreted to apply only to combatant activities undertaken 
pursuant to a formal declaration of war.\4\ The exclusion 
provided under proposed section 2681 is intended to encompass a 
broader range of combat activity, so that a formal declaration 
of war is not a prerequisite.
---------------------------------------------------------------------------
    \2\Id. (amendment to FTCA adding 28 U.S.C. Sec. 2681(c)).
    \3\28 U.S.C. Sec. 2680(j).
    \4\See H.R. 1478, the Carmelo Rodriguez Military Medical 
Accountability Act of 2009: Hearing Before the Subcomm. on Com. and 
Admin. Law of the H. Comm. on the Judiciary, 111th Cong. 114, 172-73 
(2009) (hereinafter ``2009 Subcommittee Hearings'') (written statement 
and answers to questions for record of Stephen A. Saltzburg).
---------------------------------------------------------------------------

                Background and Need for the Legislation

                        FEDERAL TORT CLAIMS ACT

    The doctrine of sovereign immunity holds that the 
government may not be sued without its consent. The Federal 
Tort Claims Act (FTCA) waives the sovereign immunity of the 
United States, in part, by rendering the United States liable 
for damages in Federal court--and Federal court only--``for 
injury or loss of property, or personal injury or death caused 
by the negligent or wrongful act or omission of any employee of 
the Government while acting within the scope of his office or 
employment, under circumstances where the United States, if a 
private person, would be liable to the claimant in accordance 
with the law of the place where the act or omission 
occurred.''\5\
---------------------------------------------------------------------------
    \5\28 U.S.C. Sec. 1346(b)(1). This is the section of title 28 
U.S.C. that confers exclusive jurisdiction on the Federal courts to 
hear suits arising in tort against the United States, subject further 
to the FTCA. The FTCA itself provides that the ``United States shall be 
liable, respecting . . . tort claims, in the same manner and to the 
same extent as a private individual under like circumstances. . . .'' 
28 U.S.C. Sec. 2674.
---------------------------------------------------------------------------
    State law provides the substantive rule of decision in FTCA 
suits, with some notable exceptions. For example, the FTCA bars 
the award of punitive damages or pre-judgment interest.\6\ 
However, in wrongful death cases, the FTCA authorizes the 
substitution of compensatory damage awards in circumstances 
where State law provides only for punitive damages.\7\
---------------------------------------------------------------------------
    \6\28 U.S.C. Sec. 2674; 2009 Subcommittee Hearings at 235 (letter 
from Stephen A. Saltzburg).
    \7\28 U.S.C. Sec. 2674.
---------------------------------------------------------------------------
    The FTCA includes over a dozen exceptions that preserve the 
government's sovereign immunity in specified circumstances. One 
of particular relevance to H.R. 1478 covers ``[a]ny claim 
arising out of the combatant activities of the military or 
naval forces, or the Coast Guard, during time of war.''\8\ 
Other exceptions relevant to H.R. 1478 include: ``[a]ny claim 
based upon an act or omission of an employee of the Government, 
exercising due care, in the execution of a statute or 
regulation . . . , or based upon the exercise or performance or 
the failure to exercise or perform a discretionary function or 
duty on the part of a Federal agency or an employee of the 
Government'';\9\ ``[a]ny claim arising out of assault, battery, 
false imprisonment, false arrest, malicious prosecution, abuse 
of process, libel, slander, misrepresentation, deceit, or 
interference with contract rights''\10\; and ``[a]ny claim 
arising in a foreign country.''\11\
---------------------------------------------------------------------------
    \8\Id. Sec. 2680(j).
    \9\Id. Sec. 2680(a).
    \10\Id. Sec. 2680(h).
    \11\Id. Sec. 2680(k).
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         THE FERES DOCTRINE: A JUDICIALLY RECOGNIZED EXCLUSION

    Since the 1950 Supreme Court decision in Feres v. United 
States,\12\ the FTCA has been interpreted generally to preclude 
all suits by members of the military against the United States 
for injuries sustained incident to their service. Feres 
involved injuries suffered by three active-duty servicemen as a 
result of the negligence of other servicemen. Two of the claims 
alleged medical malpractice arising from the negligence of Army 
doctors. The Court concluded that none of the claims were 
actionable, holding that the FTCA does not render the 
government liable ``for injuries to servicemen where the 
injuries arise out of or in the course of activity incident to 
service.''\13\ This expansive limitation on FTCA liability has 
come to be known as the ``Feres doctrine.''\14\
---------------------------------------------------------------------------
    \12\340 U.S. 135 (1950).
    \13\Id. at 146.
    \14\See generally Jonathan Turley, Pax Militaris: The Feres 
Doctrine and the Retention of Sovereign Immunity in the Military System 
of Governance, 71 Geo. Wash. L. Rev. 1 (2003).
---------------------------------------------------------------------------
    The Feres Court enunciated three reasons in support of its 
conclusion that Congress intended to exclude claims arising 
from actions incident to military service:
    First, the FTCA imposes government liability only ``under 
circumstances where the United States, if a private person, 
would be liable to the claimant in accordance with the law of 
the place where the act or omission occurred.''\15\ There is no 
``parallel'' private liability when it comes to the military, 
``for no private individual has power to conscript or mobilize 
a private army.''\16\
---------------------------------------------------------------------------
    \15\28 U.S.C. Sec. 1346(b)(1).
    \16\Feres, 340 U.S. at 141-42.
---------------------------------------------------------------------------
    Second, the Court noted that liability under the FTCA 
depends on where the service member was injured. Hence, a 
service member injured in one State might recover under the 
FTCA, but a service member injured in another State might 
not.\17\ Congress could not have intended to subject the 
``relationship between the Government and members of its armed 
forces,'' which is ``distinctively Federal in character,'' to 
geographically diverse liability standards.\18\
---------------------------------------------------------------------------
    \17\Id. at 142.
    \18\Id. at 143.
---------------------------------------------------------------------------
    Third, the Court found persuasive that service members 
injured or killed incident to their service are entitled to 
various benefits under the Veterans' Benefits Act (VBA)\19\ on 
a no-fault basis--that is, without regard to whether the 
government was at fault. ``If Congress had contemplated that . 
. . [the FTCA] would be held to apply in cases of this kind, it 
is difficult to see why it should have omitted any provision to 
adjust these two types of remedy to each other.''\20\
---------------------------------------------------------------------------
    \19\72 Stat. 1118 (1958) (as amended at 38 U.S.C. Sec. 301 et 
seq.).
    \20\Feres, 340 U.S. at 144. In subsequent decisions, the Court 
presumed that Congress intended the VBA to provide the ```the sole 
remedy for service-connected injuries.''' Johnson v. United States, 481 
U.S. 681, 690 (1987) (quoting Hatzlachh Supply Co. v. United States, 
444 U.S. 460, 464 (1980)).
---------------------------------------------------------------------------
    The Supreme Court has consistently reaffirmed Feres.\21\ 
Over time, the Feres doctrine has evolved to include other 
rationales as a basis for denying service members relief under 
the FTCA. The Court has dropped the parallel-private-liability 
rationale,\22\ but adopted another: Suits by service members 
might unduly interfere with ``military discipline and 
effectiveness''\23\ and require courts to ``second-guess 
military decision[making].''\24\ The Court has characterized 
this post-hoc rationale for the Feres doctrine as the strongest 
of the three surviving rationales.\25\ In its most recent 
decision on the subject, Johnson v. United States,\26\ the 
Court applied these rationales and extended the Feres doctrine 
to bar suits by service members arising from the negligent 
actions of civilian government employees.
---------------------------------------------------------------------------
    \21\For a summary of the cases, see Henry Cohen, Federal Tort 
Claims Act: Current Legislative and Judicial Issues, CRS Rpt. No. 95-
717, at 4-9 (2008); Deirdre G. Brou, Alternatives to the Judicially 
Promulgated Feres Doctrine, 192 Mil. L. Rev. 1 (2007).
    \22\See United States v. Muniz, 374 U.S. 150, 159 (1963).
    \23\United States v. Shearer, 473 U.S. 52, 59 (1985); see also 
Johnson, 481 U.S. at 690. The Court has explained the ``military 
discipline'' rationale as follows: ``[T]o accomplish its mission the 
military must foster instinctive obedience, unity, commitment, and 
esprit de corps. . . . [A] suit based upon service-related activity 
necessarily implicates the military judgments and decisions that are 
inextricably intertwined with the conduct of the military mission. 
Moreover, military discipline involves not only obedience to orders, 
but . . . duty and loyalty to one's service and to one's country. Suits 
brought by service members against the Government for service-related 
injuries could undermine the commitment essential to effective service 
and thus have the potential to disrupt military discipline in the 
broadest sense of the word.'' Id. at 691 (modification in original) 
(internal quotations and citations omitted).
    \24\Shearer, 473 U.S. at 57. See also, 481 U.S. at 699 (Scalia, J., 
joined by Brennan, Marshall, and Stevens, JJ., dissenting).
    \25\See, e.g., United States v. Shearer, 473 U.S. 52, 57 (1985); 
Chappell v. Wallace, 462 U.S. 296, 299 (1983); see also Johnson, 481 
U.S. at 698 (Scalia, J., joined by Brennan, Marshal, and Stevens, JJ., 
dissenting) (noting that the Court has ``repeatedly cited the later-
conceived-of `military discipline' rationale as the `best 
explanation''' for Feres). In a case decided just 2 years before 
Johnson, the Court described the two other rationales supporting Feres 
as ``no longer controlling.'' Shearer, 473 U.S. at 58 n.4. But in 
Johnson the Court recited those two other rationales without suggesting 
that they were no longer controlling. See 481 U.S. at 688-692.
    \26\481 U.S. 681 (1987).
---------------------------------------------------------------------------
    Four Justices dissented in Johnson, contending that Feres 
was ``clearly wrong.''\27\ Writing for the dissenters, Justice 
Scalia argued that Congress ``quite plainly excluded'' the 
service-member exception recognized in Feres.\28\ In 
particular, Justice Scalia wrote, the FTCA's express exclusion 
of ```[a]ny claim arising out of the combatant activities of 
the military . . . during time of war' . . . demonstrat[es] 
that Congress specifically considered, and provided what it 
thought needful for, the special requirements of the 
military.''\29\ Justice Scalia criticized the Court for 
``supplement[ing]--i.e., revis[ing]--that congressional 
disposition''\30\ and relying on its own belief as to what 
Congress must have intended.
---------------------------------------------------------------------------
    \27\Id. at 703 (Scalia, J., joined by Brennan, Marshall, and 
Stevens, JJ., dissenting).
    \28\Id. at 692.
    \29\Id. at 693.
    \30\Id.
---------------------------------------------------------------------------
    The Johnson dissenters further stated that none of the 
``three disembodied estimations of what Congress must (despite 
what it enacted) have intended'' reflect Congress's expressed 
intent.\31\ The dissent offered the following critique of those 
rationales.
---------------------------------------------------------------------------
    \31\Johnson, 481 U.S. at 699 (Scalia, J., joined by Brennan, 
Marshall, and Stevens, JJ., dissenting) (emphasis in original).
---------------------------------------------------------------------------
    (1) Need for Uniformity. The dissenters stated three 
reasons why this rationale could not support the Feres 
doctrine. First, Congress addressed the areas in which it 
deemed uniformity to be important by exempting certain 
activities from liability (e.g., the ``regulation of the 
monetary system''\32\). In the case of the military, Congress 
exempted only claims arising from combatant and overseas 
military activities.\33\ Second, the Court itself has undercut 
the uniformity rationale by permitting civilians to sue under 
the FTCA when they are injured by military personnel.\34\ 
Third, it is ``difficult to explain why uniformity . . . is 
indispensable for the military, but not for the many other 
Federal departments and agencies that can be sued under the 
FTCA for the negligent performance of their unique national 
functions,'' including, for example, the administration of the 
Federal prison system.\35\
---------------------------------------------------------------------------
    \32\28 U.S.C. Sec. 2680(I).
    \33\Johnson, 481 U.S. at 693-94 (Scalia, J., joined by Brennan, 
Marshal, and Stevens, JJ., dissenting).
    \34\Id. at 696.
    \35\Id.
---------------------------------------------------------------------------
    (2) Availability of Veterans' Benefits. The dissenters 
rejected this rationale as inconsistent with the Court's prior 
FTCA case law. Twice the Court had allowed certain injured 
service members to recover damages under the FTCA even though 
they were entitled to veterans benefits under the VBA--in one 
case a serviceman hit by an Army truck while off duty,\36\ and 
in the other a veteran who suffered malpractice at a veterans 
hospital.\37\ The Court had noted in one of those two cases 
that ``nothing in the Tort Claims Act or the veterans' laws . . 
. provides for exclusiveness of remedy,'' and the Court refused 
to ``call either remedy . . . exclusive . . . when Congress has 
not done so.''\38\ The Court had ``noted further that Congress 
had included three exclusivity provisions in the FTCA, . . . 
but had said nothing about servicemen plaintiffs.''\39\ The VBA 
the dissenters stated, ``is not, as Feres assumed, identical to 
Federal and State workers' compensation statutes in which 
exclusivity provisions almost invariably appear.\40\ The VBA 
provides less generous and more easily terminable benefits.\41\
---------------------------------------------------------------------------
    \36\See Brooks v. United States, 337 U.S. 49 (1949).
    \37\See United States v. Brown, 348 U.S. 110 (1954). The Court made 
clear in Brown that Brooks survived Feres. See id. at 113; see also 
Johnson, 481 U.S. at 698 (Scalia, J., joined by Brennan, Marshall, and 
Stevens, JJ., dissenting).
    \38\Id. at 697 (quoting Brooks, 337 U.S. at 53) (modifications in 
original).
    \39\Id. (citing Brooks, 337 U.S. at 53).
    \40\Id. at 698.
    \41\Id.
---------------------------------------------------------------------------
    (3) Military Discipline. While the dissenters agreed that 
there may be times when FTCA suits involving the military 
``will adversely affect military discipline . . . the effect 
upon military discipline is [not] so certain, or so certainly 
substantial,'' to justify recognizing a blanket exemption for 
conduct incident to military service.\42\ It is by no means 
clear that Congress considered FTCA suits by service members to 
be inconsistent with military discipline. Congress may have 
``recognized that the likely effect of Feres suits upon 
military discipline is not as clear as'' the Court has assumed; 
or ``perhaps Congress assumed that the FTCA's explicit 
exclusions would bar those suits most threatening to military 
discipline'' (e.g., ``claims based on combat command decisions, 
28 U.S.C. Sec. 2680(j)''; ``claims based upon performance of 
`discretionary' functions, Sec. 2680(a)''; and ``claims arising 
in foreign countries, Sec. 2680(k)''); or ``perhaps . . . 
Congress thought that barring recovery by servicemen might'' 
lower morale and thereby ``adversely affect military 
discipline.''\43\
---------------------------------------------------------------------------
    \42\Id. at 699.
    \43\Id. at 699-700 (emphasis in original).
---------------------------------------------------------------------------

            SUPPORT FOR AND OPPOSITION TO THE FERES DOCTRINE

    Support for the Feres doctrine is largely confined to the 
Department of Defense, some retired high-ranking military 
officers (among them retired Major General John Altenburg, Jr., 
who testified at the Subcommittee hearing), and what appears to 
be a minority of Members of Congress.\44\ The George W. Bush 
Administration supported the Feres doctrine. The Obama 
Administration has not taken a public position on the issue.
---------------------------------------------------------------------------
    \44\The last time a bill came before the House that would have 
narrowed the Feres doctrine, H.R. 1054, 100th Cong. (1987), it passed 
by a vote of 312 to 61. Compare 2009 Subcommittee Hearings at 178 
(answers to questions for record of John D. Altenburg, Jr.) (contending 
that the ``longevity [of Feres] reflects an essential principle of 
fundamental agreement among the generations of Americans as to the 
rightness of the Feres doctrine'') with Johnson, 481 U.S. at 702-03 
(1987) (Scalia, J., joined by Brennan, Marshall, and Stevens, JJ., 
dissenting) (rejecting argument that Congress's failure to overturn 
Feres reflects Congressional acquiescence).
---------------------------------------------------------------------------
    Supporters of the Feres doctrine defend it on two grounds. 
The first and predominant ground is identical to the principal 
rationale that sustains Feres in the Supreme Court's case law: 
that barring suit is necessary to maintain ``good order and 
discipline in the military.''\45\ Supporters claim that 
lawsuits based on challenges by one service member to the 
conduct of another service member will erode the key features 
of military discipline--``cohesiveness, obedience, discipline, 
putting the interest of the service ahead of the interest of 
the individual, and an inherent, unencumbered and unfettered 
trust and confidence up and down the chain of command.''\46\ 
``This degree of trust and confidence,'' explained a Department 
of Defense spokesperson who testified before the Senate 
Judiciary Committee, ``cannot exist in an adversarial legal 
environment.''\47\ A retired general similarly testified that 
the introduction of litigation into the military would harm 
``unit cohesiveness'' and with it ``combat effectiveness.''\48\ 
And at our Subcommittee hearing, retired Major General 
Altenburg warned about the potential adverse consequences of 
subjecting sensitive military ``decisionmaking'' to scrutiny by 
civilian courts.\49\
---------------------------------------------------------------------------
    \45\The Feres Doctrine: An Examination of this Military Exception 
to the Federal Tort Claims Act: Hearing Before the S. Comm. on the 
Judiciary, 107th Cong. 4 (2002) (statement of Christopher E. Weaver, 
Rear Admiral and Commandant, Naval District of Washington); see also 
id. at 2 (statement of Paul Harris, Deputy Associate Attorney General, 
Department of Justice).
    \46\Id. at 4 (statement of Christopher Weaver, Rear Admiral and 
Commandant, Naval District of Washington).
    \47\Id.
    \48\Id. at 9. (statement of Nolan Sklute, Major General (Retired), 
Former Judge Advocate General, U.S. Air Force).
    \49\2009 Subcommittee Hearings at 123, 140-41 (testimony and 
written statement of John D. Altenburg, Jr.).
---------------------------------------------------------------------------
    The second ground advanced by supporters of the Feres 
doctrine is that an alternative, no-fault compensation scheme 
(of which the VBA is the main component) already exists to 
compensate service members who are injured or killed as a 
result of medical malpractice while serving. Although most 
supporters of Feres concede that the benefits available under 
this scheme are not as generous as tort-law remedies--and 
perhaps should be made more generous--they maintain that, 
unlike the tort system, the current scheme is at least even-
handed and predictable in its distribution of benefits.\50\
---------------------------------------------------------------------------
    \50\See, e.g., id. at 138-40 (written statement of John D. 
Altenburg, Jr.); The Feres Doctrine: An Examination of this Military 
Exception to the Federal Tort Claims Act: Hearing before the S. Comm. 
on the Judiciary, 107th Cong. 5 (2002) (statement of Christopher 
Weaver, Rear Admiral and Commandant, Naval District of Washington).
---------------------------------------------------------------------------
    Criticism of the Feres doctrine by lower courts and legal 
commentators has been, according to Justice Scalia, 
``widespread, almost universal.''\51\ Opponents include 
veterans' advocacy groups,\52\ many lawyers who have worked in 
the military justice system\53\ (including some active duty 
military lawyers\54\), the National Institute of Military 
Justice's Commission on the Fiftieth Anniversary of the Uniform 
Code of Military Justice (known as the Cox Commission),\55\ and 
the American Bar Association (ABA). In 2008, the ABA issued an 
unopposed resolution calling on Congress to repeal the Feres 
doctrine altogether.\56\
---------------------------------------------------------------------------
    \51\Johnson, 481 U.S. at 700 (1987) (Scalia, J., joined by Brennan, 
Marshal, and Stevens, JJ., dissenting) (citation omitted).
    \52\See, e.g., 2009 Subcommittee Hearings at 102 (letter from 
Veterans Equal Rights Protection Advocacy, Inc.).
    \53\See id. at 14, 55 (testimony and written statement of Eugene R. 
Fidell).
    \54\See, e.g., Deirdre G. Brou, Alternatives to the Judicially 
Promulgated Feres Doctrine, 192 Mil. L. Rev. 1 (2007).
    \55\See Walter T. Cox, III., et al., Report of the Commission on 
the 50th Anniversary of the Uniform Code of Military Justice Sec. IV.C 
(May 2001), available at http://www.wcl.american.edu/nimj/documents/
cox--comm--report2.pdf?rd=1.
    \56\See American Bar Association Res. 10(b) (Aug. 11-12, 2008).
---------------------------------------------------------------------------
    Opponents emphasize two related points. First, that Feres 
unfairly discriminates against service members by treating them 
less favorably than other citizens injured or killed as a 
result of government negligence. Second, that Feres leaves 
service members harmed by the negligence of the military 
inadequately compensated for economic damages and, contrary to 
well-established tort law principles, entirely uncompensated 
for non-economic damages (e.g., pain and suffering).\57\
---------------------------------------------------------------------------
    \57\See, e.g., 2009 Subcommittee Hearings at 146-47, 233 (testimony 
and answers to questions for record of Eugene R. Fidell); The Feres 
Doctrine: An Examination of this Military Exception to the Federal Tort 
Claims Act: Hearing before the S. Comm. on the Judiciary, 107th Cong. 1 
(2002) (statement of Senator Arlen Specter); American Bar Association 
Res. 10(b) (Aug. 11-12, 2008); Deirdre G. Brou, Alternatives to the 
Judicially Promulgated Feres Doctrine, 192 Mil. L. Rev. 1, 49-50 
(2007).
---------------------------------------------------------------------------
    Opponents say neither of the two rationales advanced to 
support Feres are persuasive. They reject the military-
discipline rationale for much the same reasons as the 
dissenters in Johnson did. They emphasize that the FTCA's 
existing exceptions already ban the types of claims that are 
most likely to threaten military discipline.\58\ At the 
Subcommittee hearing, attorney and legal scholar Eugene Fidell 
also responded to the military-discipline rationale by noting 
that several statutes already permit service members to bring 
suits in Federal district courts challenging certain personnel 
actions by the military.\59\
---------------------------------------------------------------------------
    \58\See, e.g., 2009 Subcommittee Hearings at 97, 172 (testimony and 
answers to questions for the record of Stephen A. Saltzburg).
    \59\Id. at 232 (answers to questions for the record of Eugene R. 
Fidell).
---------------------------------------------------------------------------
    As for the argument that the existing no-fault compensation 
scheme under the VBA should provide the exclusive remedy for 
service-related harms, Feres doctrine opponents say that the 
benefits available under this scheme are inadequate to redress 
most torts.\60\ Key limitations include its failure to account 
for future increases in pay when calculating benefits and, more 
importantly, its failure to provide any compensation for the 
types of non-economic harms regularly awarded in tort 
suits.\61\
---------------------------------------------------------------------------
    \60\Deirdre G. Brou, Alternatives to the Judicially Promulgated 
Feres Doctrine, 192 Mil. L. Rev. 1, 48 (2007).
    \61\See, e.g., 2009 Subcommittee Hearings at 146-47, 233 (testimony 
and answers to questions for the record of Eugene R. Fidell).
---------------------------------------------------------------------------

 THE FERES DOCTRINE AS APPLIED TO MILITARY PERSONNEL CLAIMS OF MEDICAL 
                              MALPRACTICE

    Lower courts have consistently interpreted Feres to bar 
FTCA claims by service members--including reservists and 
members of the national guard\62\--arising from medical 
malpractice by government (usually military) healthcare 
providers.\63\ Generally, no significance has been attached to 
whether the service member was on- or off-duty when harmed.\64\ 
Only claims arising from post-discharge medical care--usually 
at veterans' hospitals--have escaped the Feres bar.\65\
---------------------------------------------------------------------------
    \62\See, e.g., Gremlich v. U.S. Dep't of Army, Civ. A. No. 89-8292, 
1990 WL 204245, at 3-4 (E.D. Pa. Dec. 11, 1990), and cases cited 
therein.
    \63\See, e.g., Brown v. United States, 415 Fed. App. 411, 413-14 
(2006); France v. United States, 225 F.3d 658 (table), 2000 WL 1033020 
(6th Cir. July 18, 2000); Sloan v. United States, 208 F.3d 218 (table), 
2000 WL 307264 (8th Cir. Mar. 27, 2000); Matthew v. United States, 452 
F. Supp. 2d 433, 439 (S.D.N.Y. 2006). Courts have split as to the 
ability of service members to sue under the FTCA under some types of 
military status--for example, those on a ``temporary disability retired 
list'' (TDRL). See, e.g., Bradley v. United States, 161 F.3d 777, 782 
(4th Cir. 1998).
    \64\See, e.g., Borden v. Veterans Admin., 41 F.3d 763, 763-64 (1st 
Cir.1994) (holding that Feres barred suit arising from malpractice 
suffered by active-duty member of armed services while ``off duty'').
    \65\See United States v. Brown, 348 U.S. 110 (1954). The line 
between pre- and post-discharge acts of malpractice is easily drawn in 
most cases. But see Brown, 451 Fed. App. at 415-16 (addressing 
allegations of both pre- and post-discharge negligence by military 
doctors). A few cases deal with pre-induction malpractice. See, e.g., 
Bowers v. United States, 904 F.2d 450, 452 (8th Cir. 1990) (suit to 
redress malpractice during pre-induction physical held barred by 
Feres).
---------------------------------------------------------------------------
    The preclusive effect of Feres on medical malpractice 
claims has drawn especially strong criticism. The reasons 
include: (1) the relative prevalence of medical malpractice at 
medical facilities operated by the Department of Defense;\66\ 
(2) the status of military medical care (at least outside the 
combat context) as an activity largely ``collateral'' to the 
military's core functions;\67\ (3) the apparent unfairness of 
allowing the dependants of service members to sue under the 
FTCA when they receive negligent medical care by military 
healthcare providers, but denying service members themselves 
the same right;\68\ and (4) the absence of any compelling 
military justification to preclude FTCA suits involving 
malpractice.\69\
---------------------------------------------------------------------------
    \66\See, e.g., Jonathan Turley, The Feres Doctrine: What Soldiers 
Really Need Are Lawyers, USA Today, Aug. 18, 2007; see also Jonathan 
Turley, Pax Militaris: The Feres Doctrine and the Retention of 
Sovereign Immunity in the Military System of Governance, 71 Geo. Wash. 
L. Rev. 1, 43-47 (2003). The case of Carmelo Rodriguez, after whom H.R. 
1478 is named, was addressed at the hearing. See, e.g., Byron Pitts, 
Case Sheds Light on Military Law, CBS News, May 19, 2008, http://
www.cbsnews.com/stories/2008/05/19/eveningnews/main4109454.shtml. For 
other disturbing examples appearing in the hearing record, see 2009 
Subcommittee Hearings at 236-41 (letter from Adele Connell, Colonel, 
United States Army, dated March 24, 2009) (documenting a botched 
operation at Walter Reed Army Medical Center that resulted in removal 
of the wrong breast); id. at 242-43 (letter from Alexis Witt, wife of 
SSGT Dean Patrick Witt, dated March 23, 2009) (describing a routine 
appendix removal at Travis Air Force base that, because of medical 
malpractice, resulted in the patient being deprived of oxygen for over 
15 minutes and ultimately rendered him brain dead).
    \67\Jonathan Turley, Pax Militaris: The Feres Doctrine and the 
Retention of Sovereign Immunity in the Military System of Governance, 
71 Geo. Wash. L. Rev. 1, 43-47 (2003).
    \68\See, e.g., 2009 Subcommittee Hearings at 152, 233 (written 
statement and answers to questions for record of Eugene R. Fidell).
    \69\See, e.g., id. at 100-04 (written statement of Stephen 
Saltzburg).
---------------------------------------------------------------------------
    With respect to the last point, supporters of legislation 
like H.R. 1478 emphasize that whatever the persuasiveness of 
the military-discipline argument as a general matter, it has no 
application in the context of medical malpractice--with the 
possible exception of where the malpractice arises from combat-
related medical care. H.R. 1478 recognizes this exception by 
including an express provision in the bill making such combat-
related claims non-actionable.\70\ During the legislative 
hearing on H.R. 1478, Professor Stephen Saltzburg testified on 
behalf of the ABA that ``no one seriously makes an argument 
that military discipline is somehow going to be adversely 
affected if Feres is modified by the Congress so that military 
members can bring the same kind of malpractice claims as 
ordinary civilians can.''\71\ Mr. Fidell testified similarly at 
an earlier congressional hearing that ``issues of malpractice . 
. . have nothing whatever to do with military discipline or any 
notions of command or unit cohesion.''\72\ Mr. Fidell added in 
his response to questions for the record following the 
Subcommittee's hearing that military physicians are already 
subject to oversight by State medical licensing 
authorities.\73\
---------------------------------------------------------------------------
    \70\See, e.g., id. at 102 (written statement of Stephen Saltzburg).
    \71\Id. at 97 (testimony of Stephen A. Saltzburg).
    \72\The Feres Doctrine: An Examination of this Military Exception 
to the Federal Tort Claims Act: Hearing before the S. Comm. on the 
Judiciary, 107th Cong. 15 (2002) (statement of Eugene R. Fidell).
    \73\See 2009 Subcommittee Hearings at 233 (answers to questions for 
record of Eugene R. Fidell).
---------------------------------------------------------------------------
    Nonetheless, supporters of the Feres doctrine generally 
oppose any exception for medical malpractice claims. At the 
Subcommittee hearing, retired Major General Altenburg explained 
that his opposition to legislation like H.R. 1478 rests largely 
on his belief that it would be unfair to provide FTCA remedies 
for service members harmed as a result of medical malpractice, 
while denying them to service members harmed during combat (and 
in the performance of other military related activities).\74\ 
He called this disparate treatment a form of ``discriminatory 
favoritism.''\75\ Mr. Fidell countered that
---------------------------------------------------------------------------
    \74\Id. at 123 (testimony of John D. Altenburg, Jr.).
    \75\Id. at 139 (written statement of John D. Altenburg, Jr.).

        [t]he risk of injury and death in combat is clearly 
        something military personnel know to expect. . . . But 
        medical malpractice is not part of the mission; it is 
        something that happens (unfortunately) in civilian 
        life, and when it does, our system of tort law permits 
        recovery. . . . To the extent that there is nothing 
        peculiarly military to medical malpractice, the better 
        analogy is to the treatment afforded to all Americans, 
        rather than the quite different treatment the law 
        provides to serving personnel for combat-related 
        injuries. . . . The fact that we do not afford a damage 
        remedy for death or injury . . . at the hands of the 
        enemy is not a reason to deny such a remedy to GIs who 
        have no effective choice of medical providers.\76\
---------------------------------------------------------------------------
    \76\Id. at 234 (answers to questions for record of Eugene R. 
Fidell).
---------------------------------------------------------------------------

                                Hearings

    The Subcommittee on Commercial and Administrative Law held 
a legislative hearing on H.R. 1478 on March 24, 2009.\77\ 
Testimony was received from the following five witnesses: 
retired Major General John D. Altenburg, Jr., a former Deputy 
Judge Advocate General of the United States Army and of counsel 
at Greenberg Traurig, LLP; Eugene R. Fidell, the Florence 
Rogatz Visiting Lecturer at Yale Law School, the President of 
the National Institute of Military Justice, and of counsel to 
the law firm of Feldesman Tucker Leifer Fidell LLP; Ivette 
Rodriguez, the sister of Carmelo Rodriguez, the deceased Marine 
sergeant after whom H.R. 1478 is named; and Stephen A. 
Saltzburg, the Wallace and Beverley Woodbury Professor of Law 
at the University of Virginia Law School, a member of the House 
of Delegates of the American Bar Association, and the co-chair 
of the ABA's Military Justice Committee of the Criminal Justice 
Section. Professor Saltzburg testified on behalf of the ABA. 
The sponsor of H.R. 1478, Representative Maurice Hinchey (D-
NY), testified on a separate panel.
---------------------------------------------------------------------------
    \77\H.R. 1478, the Carmelo Rodriguez Military Medical 
Accountability Act of 2009: Hearing Before the Subcomm. on Com. and 
Admin. Law of the H. Comm. on the Judiciary, 111th Cong. (2009).
---------------------------------------------------------------------------
    Since the 1980's, there have been four Congressional 
hearings\78\ and several bills introduced regarding the Feres 
doctrine.\79\ In 1987, legislation similar to H.R. 1478 passed 
the House by vote of 312-61.\80\
---------------------------------------------------------------------------
    \78\See The Feres Doctrine: An Examination of this Military 
Exception to the Federal Tort Claims Act: Hearing before the S. Comm. 
on the Judiciary, 107th Cong. (2002); Claims for Negligent Medical Care 
Provided Members of the Armed Forces: Hearing Before the Subcomm. on 
Admin. Law and Gov't Rel. of the H. Comm. on the Judiciary, 102nd Cong. 
(1991); Medical Malpractice Suits for Armed Services Personnel: 
Hearings Before the Subcomm. on Courts and Admin. Practice of the S. 
Comm. on the Judiciary, 100th Cong. (1988); Military Medical 
Malpractice: Hearing Before the Subcomm. on Admin. Law and Gov't Rel. 
of the H. Comm. on the Judiciary, 99th Cong. (1985).
    \79\See Carmelo Rodriguez Military Medical Accountability Act of 
2008, H.R. 6093, 110th Cong. (2008); H.R. 2684, 107th Cong. (2001); 
H.R. 1054, 100th Cong. (1987).
    \80\H.R. 1054, 100th Cong. (1987).
---------------------------------------------------------------------------

                        Committee Consideration

    On May 19, 2009, the Subcommittee on Commercial and 
Administrative Law met in open session and ordered the bill 
H.R. 1478 favorably reported, as amended, by a rollcall vote. 
On October 7, 2009, the Committee met in open session and 
ordered the bill H.R. 1478 favorably reported as amended by the 
Subcommittee, by a rollcall vote of 14 to 12, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1478:
    1. An amendment offered by Mr. King to limit attorney's 
fees to 15% of any judgement rendered, and 10% of any 
settlement. Defeated 18 to 13.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................                              X
Ms. Baldwin.....................................................
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................                              X
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             13              18
----------------------------------------------------------------------------------------------------------------

    2. An amendment offered by Mr. Franks to strike the 
proposed section 2681 and insert a GAO study on the currently 
available benefits for service members injured or killed as a 
result of medical malpractice, the medical malpractice claims 
against the Department of Defense in the last 5 years brought 
under the FTCA, and the current procedures to evaluate and 
discipline medical providers whose care falls below the minimum 
standard of care. Defeated 16 to 11.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................                              X
Ms. Baldwin.....................................................
Mr. Gonzalez....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei......................................................                              X
Mr. Smith, Ranking Member.......................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Issa........................................................              X
Mr. Forbes......................................................
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................
Mr. Rooney......................................................              X
Mr. Harper......................................................              X
                                                                 -----------------------------------------------
    Total.......................................................             11              16
----------------------------------------------------------------------------------------------------------------

    3. On reporting the bill as amended, approved 14 to 12.

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman......................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Ms. Baldwin.....................................................
Mr. Gonzalez....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
Mr. Maffei......................................................              X
Mr. Smith, Ranking Member.......................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Issa........................................................                              X
Mr. Forbes......................................................
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................                              X
Mr. Chaffetz....................................................
Mr. Rooney......................................................                              X
Mr. Harper......................................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             14              12
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1478, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 20, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1478, the Carmelo 
Rodriguez Military Medical Accountability Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Schmit, who can be reached at 226-2840.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.

Enclosure.

cc:
        Honorable Lamar S. Smith.
        Ranking Member

H.R. 1478--Carmelo Rodriguez Military Medical Accountability Act of 
        2009

                                SUMMARY

    H.R. 1478 would amend the Federal Tort Claims Act (FTCA) to 
allow members of the Armed Forces to bring suit against the 
Federal Government for damages related to malpractice by 
government medical personnel. CBO estimates that enacting H.R. 
1478 would increase direct spending from the Judgment Fund by 
$2.7 billion over the 2010-2019 period. Enacting H.R. 1478 
would not affect revenues and would have an insignificant 
effect on spending subject to appropriation.
    Pursuant to section 311 of the Concurrent Resolution on the 
Budget for Fiscal Year 2009 (S. Con. Res. 70), CBO estimates 
H.R. 1478 would increase projected deficits by more than $5 
billion in at least one of the four consecutive 10-year periods 
starting in 2020.
    H.R. 1478 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of State, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 1478 is shown in the 
following table. The costs of this legislation fall primarily 
within budget function 800 (general government).

                                                         By Fiscal Year, in Millions of Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               2010   2011   2012   2013   2014   2015   2016   2017   2018   2019  2010-2014  2010-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING

Estimated Budget Authority                                       90    290    430    430    360    260    200    190    200    220     1,600      2,670

Estimated Outlays                                                90    290    430    430    360    260    200    190    200    220     1,600      2,670
--------------------------------------------------------------------------------------------------------------------------------------------------------

                           BASIS OF ESTIMATE

    H.R. 1478 would amend the FTCA to allow members of the 
Armed Forces to bring suit against the Federal Government for 
damages related to malpractice by government medical personnel. 
Servicemembers are currently blocked from pursuing such claims 
as a result of a 1950 Supreme Court decision (Feres v. United 
States). This amendment to the FTCA would apply retroactively 
to claims arising on or after January 1, 1997. CBO estimates 
that enacting H.R. 1478 would increase direct spending from the 
Judgment Fund (a permanent indefinite appropriation) by $2.7 
billion over the 2010-2019 period. This estimate assumes that 
H.R. 1478 will be enacted early in fiscal year 2010.
    While Feres v. United States effectively blocks 
servicemembers from filing malpractice claims against the 
Department of Defense (DoD) for care received during the course 
of active duty, others who use military health facilities and 
physicians (primarily dependents, military retirees, and 
survivors) are not prohibited from doing so. Using claims data 
from those other populations, and adjusting for the fact that 
active-duty members utilize DoD health facilities for a larger 
portion of their overall health care, CBO estimates that H.R. 
1478 would increase the number of medical malpractice claims 
against DoD by about 750 per year. Based on those same data, we 
estimate that about one-third, or 250 claims, would result in 
monetary settlements or awards.
    Because H.R. 1478 would allow servicemembers to file 
malpractice claims for care received while on active duty on or 
after January 1, 1997, CBO expects there would be a surge of 
claims in the first several years after enactment. However, CBO 
assumes the probability that former members would file and 
pursue malpractice claims decreases proportionately with the 
amount of time between the medical care they received and the 
enactment date of this bill. Some claims would probably be 
settled by the government soon after they are filed, while CBO 
estimates others would take up to five years after the claims 
are filed before payments from the Judgment Fund would occur. 
This lag accounts for the time needed for litigation, and is 
based on an analysis of DoD data on malpractice claims for 
dependents and retirees. In total, CBO estimates that awards 
for 4,100 medical malpractice claims against DoD would be paid 
over the 2010-2019 period if H.R. 1478 is enacted. Of those, 
about half would be for incidents that occurred prior to fiscal 
year 2010.
    Using data compiled by DoD on payments related to 
malpractice claims by military retirees and dependents, CBO 
estimates the average monetary award would be about $450,000 
for payments that occur in 2010. While our analysis of the data 
indicate that most of the monetary settlements and awards would 
be substantially less than this, a small number of cases would 
result in settlements and awards in the millions of dollars 
each. Going forward, CBO estimates that average award amounts 
would increase by about 7 percent each year, based on an 
analysis of the growth of average medical malpractice payments 
since 1986.
    The FTCA does allow Federal agencies to settle cases with 
monetary values less than $2,500. In those instances, the 
amounts would be paid from discretionary funds, although in the 
case of H.R. 1478, CBO estimates those amounts would total less 
than $500,000 annually.

                      IMPACT ON LONG-TERM DEFICITS

    Pursuant to section 311 of the Concurrent Resolution on the 
Budget for Fiscal Year 2009 (S. Con. Res. 70), CBO estimates 
H.R. 1478 would increase projected deficits by more than $5 
billion in at least one of the four consecutive 10-year periods 
starting in 2020.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 1478 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would not affect the budgets of 
State, local, or tribal governments.
    Estimate prepared by: Federal Costs: Matthew Schmit. Impact 
on State, Local, and Tribal Governments: Burke Doherty. Impact 
on the Private Sector: Elizabeth Bass.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1478 amends the Federal Tort Claims Act to modify the 
government's sovereign immunity, allowing service members to 
sue the United States for damages when they are harmed by 
medical malpractice committed by government-employed or -
directed healthcare providers, with an exception for claims 
arising out of combatant activities in times of armed conflict.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds authority for 
this legislation in article I, section 8, clause 16 of the 
Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1478 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9 of rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.

    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Carmelo Rodriguez Military Medical 
Accountability Act of 2009.''

    Sec. 2. Allowance of Claims by Members of the Armed Forces 
Against the United States for Certain Injuries Caused by 
Improper Medical Care. Section 2(a) of the bill amends chapter 
171 of title 28 of the United States Code by adding a new 
section 2681 (``Certain Claims by members of the Armed Forces 
of the United States'').

    Section 2681(a) authorizes suit against the United States 
under the FTCA for ``claims arising out of a negligent or 
wrongful act or omission in the performance of medical, dental, 
or related health care functions . . . that is provided by a 
person acting within the scope of the office or employment of 
that person or by or at the direction of the Government of the 
United States, whether inside or outside of the United 
States.''

    Section 2681(b) provides that any damages award in an FTCA 
suit covered by section 2681(a) ``shall not be reduced by the 
amount of any benefit received under subchapter III (relating 
to Servicemembers' Group Life Insurance) of chapter 19 of title 
38'' of the United States Code.

    Section 2681(c) provides that section 2681(a) does ``not 
apply to any claim arising out of the combatant activities of 
the Armed Forces during time of armed conflict.''

    Section 2681(d) provides that the exclusions in 28 U.S.C. 
Sec. 2680(j) and (k) do not apply to any FTCA claim brought 
under 28 U.S.C. Sec. 2681(a). Section 2680(j) excludes claims 
``arising out of the combatant activities of the military or 
naval forces, or the Coast Guard, during time of war''; section 
2680(k) excludes ``any claim arising in a foreign country.'' 
These exclusions are replaced, for actions under section 
2681(a), by the exclusion in section 2681(c).

    Section 2681(d) also provides that a claim arising from 
acts or omissions that occur outside of the United States is 
governed by the substantive ``law of the place of domicile of 
the plaintiff.''

    Section 2681(e) defines the phrase ``negligent or wrongful 
act or omission in the performance of medical, dental, or 
related healthcare functions'' (as used in 28 U.S.C. 2681(a)) 
to have the same meaning given to the term under 10 U.S.C. 
Sec. 1089(e). Section 1089 governs medical malpractice claims 
against military, defense, or intelligence personnel. The 
phrase appears in section 1089(e), which makes 28 U.S.C. 
Sec. 2680(h) inapplicable to claims under the FTCA. Section 
2680(h) is the exception to the FTCA for suits based on 
intentional torts, including assault and battery. By 
incorporating the phrase from section 1089(e) and referencing 
that section, section 2681(e) allows malpractice suits 
notwithstanding the intentional tort exception to the FTCA 
found in section 2680(h).

    Section 2(b) of the bill makes a technical and conforming 
amendment, adding section 2681 to the table of sections for 
chapter 171 of title 28 U.S.C.

    Section 2(c) of the bill provides that the amendments made 
by section 2(a) will apply to claims arising on or after 
January 1, 1997, and that any period of limitation on such a 
claim arising before the date of enactment shall begin to run 
on that date of enactment.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 28, UNITED STATES CODE

           *       *       *       *       *       *       *

PART VI--PARTICULAR PROCEEDINGS

           *       *       *       *       *       *       *

                   CHAPTER 171--TORT CLAIMS PROCEDURE

Sec.
2671.    Definitions.
     * * * * * * *
2681.    Certain claims by members of the Armed Forces of the United 
          States.

           *       *       *       *       *       *       *

Sec. 2681. Certain claims by members of the Armed Forces of the United 
                    States

  (a) A claim may be brought against the United States under 
this chapter for damages relating to the personal injury or 
death of a member of the Armed Forces of the United States 
arising out of a negligent or wrongful act or omission in the 
performance of medical, dental, or related health care 
functions (including clinical studies and investigations) that 
is provided by a person acting within the scope of the office 
or employment of that person by or at the direction of the 
Government of the United States, whether inside or outside the 
United States.
  (b) A claim under this section shall not be reduced by the 
amount of any benefit received under subchapter III (relating 
to Servicemembers' Group Life Insurance) of chapter 19 of title 
38.
  (c) This section does not apply to any claim arising out of 
the combatant activities of the Armed Forces during time of 
armed conflict.
  (d) For purposes of claims brought under this section--
          (1) subsections (j) and (k) of section 2680 do not 
        apply; and
          (2) in the case of an act or omission occurring 
        outside the United States, the ``law of the place where 
        the act or omission occurred'' shall be deemed to be 
        the law of the place of domicile of the plaintiff.
  (e) As used in this section, the term ``a negligent or 
wrongful act or omission in the performance of medical, dental, 
or related health care functions (including clinical studies 
and investigations)'' has the same meaning given that term for 
purposes of section 1089(e) of title 10.

           *       *       *       *       *       *       *

                            DISSENTING VIEWS

    It is unquestionable that Congress has a duty to ensure 
that the members of this country's armed forces receive the 
highest quality medical care possible. However, because H.R. 
1478 will not make any significant contribution towards 
improving the quality of military medicine and will undermine 
military morale and effectiveness, we must oppose this bill.
    The issue this bill presents is not whether service members 
should receive compensation for injuries resulting from medical 
malpractice. They already receive no-fault compensation through 
the Departments of Defense and Veterans Affairs. The issue also 
is not whether military medical personnel will be held 
accountable for medical malpractice. They already are held 
accountable up to and including the possibility of court 
martial. Rather, the issue this bill presents is whether any 
flaws in the current system for compensating service members 
for malpractice related injuries should be addressed by forcing 
the men and women of the armed services to resort to 
litigation. Litigation, however, is not the answer.
    First, there appears to be no correlation between medical 
malpractice damage awards in the civilian sector and 
improvements in the quality of care provided. In fact, the 
litigation-created malpractice crisis is one of the major 
problems facing the practice of medicine in this country. The 
major beneficiaries of the civilian malpractice crisis are not 
this nation's patients, but the trial lawyers who garner large 
contingency fees. The same results can be expected for the 
military medical system if this legislation is enacted.
    What is more, H.R. 1478 would create the anomaly of 
offering a tort remedy to a service member who is injured 
through a medical mistake, while denying the same compensation 
to one who is injured in combat. This could demean injuries 
suffered in combat by providing the soldier injured on the 
battlefield with administrative compensation, while allowing 
the soldier injured in a military hospital to seek a multi-
million dollar damage award in federal court. Such a result is 
fundamentally unfair to those injured in combat.
    Furthermore, under this legislation, recovery will depend 
on the local tort laws where the service member is stationed. 
Thus, a service member stationed in California will be subject 
to one set of rules, while one stationed in North Carolina will 
be subject to another. Selective compensation based on duty 
station falls short of the even-handed fairness needed to 
preserve military morale. One of the chief benefits of the 
existing statutory compensation system is that comparable 
injuries are treated uniformly throughout the military.
    This legislation, moreover, will inject tort litigation and 
defensive medicine into military medical readiness and health 
assessment determinations. Because of the nature of the 
military, the medical system interacts with the individual 
patient to a much greater extent than in the civilian world. 
Health screenings and assessments, limitations on duty, 
eligibility for deployment, annual physicals, fitness for duty 
determinations, specialized evaluations for pilots, indigenous 
disease vaccinations, biological defense countermeasures, 
mental health evaluations, and other interactions are the 
everyday work of the military medical system. And while these 
medical interactions are usually far removed from the 
battlefield, they are essential to effective military 
operations. Every such interaction would be a potential tort 
claim for which defenses would need to be planned and defensive 
medicine practiced, threatening to re-delegate military medical 
readiness from medical professionals and military commanders to 
civilian lawyers and judges.
    There are many more problems with this legislation, but the 
bottom-line is that if Congress believes that the current 
military compensation system is inadequate or is producing 
unfair results, we should work to correct that system. We 
should increase funding and make needed reforms. There is no 
excuse for providing our troops less compensation than they 
deserve. However, repealing the Feres doctrine for medical 
malpractice injuries is not the solution. This country can 
provide our service members with the meaningful benefits they 
need without making the brave men and women that serve resort 
to litigation. In short, our focus should not be on allowing 
litigation, but on improving the overall military disability 
compensation system for all of this country's service members.

                               BACKGROUND

    The Federal Tort Claims Act (FTCA)\1\ permits the 
government to be sued for injuries caused by the negligence of 
government employees, acting within the scope of their 
employment, to the same extent that a private individual would 
be liable for such negligence.\2\ For members of the armed 
services who are injured ``incident to service,'' however, the 
government's liability under the FTCA is subject to an 
exception carved out in Feres v. United States.\3\ In Feres, a 
unanimous Supreme Court held that ``the Government is not 
liable under the Federal Tort Claims Act for injuries to 
servicemen where the injuries arise out of or are in the course 
of activity incident to service.''\4\ This exception is known 
as the Feres doctrine.\5\ Although the FTCA contains no 
explicit exclusion for injuries sustained by military personnel 
incident to service, such an exclusion results from construing 
the FTCA ``to fit, so far as will comport with its words, into 
the entire statutory scheme of remedies against the Government 
to make a workable, consistent and equitable whole.''\6\
---------------------------------------------------------------------------
    \1\28 U.S.C. Sec. Sec. 1346(b), 2671-2680.
    \2\See 28 U.S.C. Sec. 1346(b). The doctrine of sovereign immunity 
protects the United States government from liability for the tortious 
acts of its agents or employees. Under this doctrine, the federal 
government is immune from liability unless it consents to be sued, 
United States v. Sherwood, 312 U.S. 584 (1941), and it may define the 
terms and conditions upon which it may be sued, Soriano v. United 
States, 352 U.S. 270 (1957).
    \3\340 U.S. 135 (1950).
    \4\Id. at 146.
    \5\In addition to the Feres doctrine, there are two other major 
exceptions under which the United States may not be held liable under 
the FTCA: the discretionary function exception, which immunizes the 
United States for acts or omissions of its employees that involve 
policy decisions, and the intentional tort exception, which precludes 
suits against the United States for assault, battery, and other 
intentional torts, unless they are committed by federal law enforcement 
or investigative officials.
    \6\340 U.S. at 139.
---------------------------------------------------------------------------
    In Feres and its progeny, the Supreme Court has provided 
four principal rationales for the doctrine:

        1) LThe existence and availability of a separate, 
        uniform, comprehensive, no-fault compensation scheme 
        for injured military personnel;

        2) LThe effect upon military order, discipline, and 
        effectiveness if service members were permitted to sue 
        the government and each other;

        3) LThe distinctly federal relationship between the 
        government and members of its armed services and the 
        corresponding unfairness of permitting service-
        connected claims to be determined by non-uniform local 
        law; and

        4) LThe absence of parallel private liability. Rather 
        than creating new causes of action, the FTCA was 
        designed to make the government liable to the same 
        extent as private individuals under like circumstances. 
        No cause of action had existed prior to the FTCA 
        permitting a serviceman to sue his superior officers 
        for negligence. Moreover, because private individuals 
        cannot maintain armies, the Court determined that there 
        were no ``like circumstances'' under which private 
        individuals could be deemed liable.

    The holding of Feres has been continually and persuasively 
applied by the courts and has now stood for 59 years without 
either legislative or judicial alteration.\7\ H.R. 1478 would 
narrow the Feres doctrine so that it would not apply to suits 
for ``damages relating to personal injury or death of a member 
of the Armed Forces of the United States arising out of a 
negligent or wrongful act or omission in the performance of 
medical, dental, or related health care functions (including 
clinical studies and investigations) [by a person working for 
or at the direction of the United States].''
---------------------------------------------------------------------------
    \7\See United States v. Johnson, 481 U.S. 681 (1987); United States 
v. Stanley, 483 U.S. 669 (1987); Chappell v. Wallace, 462 U.S. 296 
(1983); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 
(1977).
---------------------------------------------------------------------------

                               DISCUSSION

    Although it is sometimes argued that the Feres doctrine is 
unfair to service members who are the victims of medical 
malpractice, there are several sound reasons for maintaining 
the Feres bar, even in military medical malpractice cases:

         LEliminating the Feres Doctrine Will Erode 
        Uniformity. H.R. 1478 will create a privileged class of 
        claimants within the armed services whose right to 
        recover depends upon where they were injured and not on 
        the injury they suffered. Selective special 
        compensation falls short of the even-handed fairness 
        that must be exercised to preserve military morale. As 
        the Supreme Court has noted, ``to accomplish its 
        mission the military must foster instinctive obedience, 
        unity, commitment, and esprit de corps.''\8\ 
        Accordingly, the Court has held that,
---------------------------------------------------------------------------
    \8\Goldman v. Weinberger, 475 U.S. 503, 507 (1986).

              LEven if military negligence is not specifically 
        alleged in a tort action, a suit based upon service-
        related activity necessarily implicates the military 
        judgments and decisions that are inextricably 
        intertwined with the conduct of the military mission. 
        Moreover, military discipline involves not only 
        obedience to orders, but more generally duty and 
        loyalty to one's service and to one's country. Suits 
        brought by service members against the Government for 
        service-related injuries could undermine the commitment 
        essential to effective service and thus have the 
        potential to disrupt military discipline in the 
        broadest sense of the word.\9\
---------------------------------------------------------------------------
    \9\United States v. Johnson, 481 U.S. 681, 691 (1987).

           LMedical malpractice injuries versus combat 
        injuries. This bill would create a situation in which 
        service members who lose a limb through medical 
        malpractice will receive extra, and in some cases quite 
        substantial, tort compensation whereas service members 
        who lose a limb in combat will receive only 
        administrative compensation. This could demean injuries 
        suffered in combat by providing the soldier injured on 
        the battlefield with administrative compensation, while 
        the soldier injured in a military hospital could seek a 
---------------------------------------------------------------------------
        multi-million dollar damage award in federal court.

           LSoldiers will receive different 
        compensation depending upon where they are stationed. 
        Because the FTCA bases liability on state law, a marine 
        stationed in California might recover, but another 
        marine, subject to a different body of law in North 
        Carolina, might not. Both marines, however, would have 
        one thing in common: their duty stations are the result 
        of military orders, not their personal choice.

         LLitigation process will be disruptive to 
        military operations. Superimposing the adversarial 
        process of civil litigation onto the Armed Forces, even 
        in the limited area of medical malpractice, will have a 
        disruptive influence on military operations. The 
        litigative process itself assures this result: military 
        plaintiffs and witnesses will be summoned to attend 
        depositions and trials, they will have to take time 
        away from their regularly assigned duties to confer 
        with counsel and investigators, and they may have to be 
        recalled from distant posts. As the Ninth Circuit has 
        noted, ``it is the suit, not the recovery, that would 
        be disruptive of discipline and the orderly conduct of 
        military affairs.''\10\
---------------------------------------------------------------------------
    \10\Henniger v. United States, 473 F.2d 814, 815-16 (9th Cir. 
1973).

          LMoreover, allowing medical malpractice suits to be 
        filed by service members is likely to disrupt military 
        operations by injecting tort litigation and defensive 
        medicine into all matters of military medical readiness 
        and health assessment. Because of the nature of the 
        military enterprise, the medical system interacts with 
        the individual patient to a much greater extent than in 
        the civilian world. Health screenings and assessments, 
        limitations on duty, eligibility for deployment, annual 
        physicals, fitness for duty determinations, specialized 
        evaluations for certain members (such as pilots and 
        nuclear program personnel), indigenous disease 
        vaccinations, biological defense countermeasures, 
        protection from environmental exposures, mental health 
        evaluations, and other interactions are the everyday 
        work of the military medical system and, while usually 
        far removed from the battlefield, are essential to 
        effective military operations. Every such interaction 
        would be a potential tort claim for which defenses 
        would need to be planned and readied and defensive 
        medicine practiced, threatening to re-delegate military 
        medical readiness from medical professionals and 
---------------------------------------------------------------------------
        military commanders to civilian lawyers and judges.

         LThe military compensation program provides a 
        comprehensive, no-fault system. One of the primary 
        reasons that members of the armed services are not 
        permitted to sue under the FTCA for service related 
        injuries is because of the military's no-fault, 
        administrative compensation programs. The statutory 
        compensation scheme has three components:

           LFirst, service members serving on active 
        duty receive free medical care when injured or ill and 
        they receive unlimited sick leave with full pay and 
        allowances until well or released from active duty. 
        Survivors of service members are entitled to death 
        gratuity benefits, as well as subsidized life 
        insurance.

           LSecond, there is a comprehensive disability 
        retirement system for service members permanently 
        injured in the line of duty.

           LThird, the Veterans Administration provides 
        yet another system of medical care, disability, and 
        death benefits for service-disabled veterans and their 
        families.

         LRepeal of the Feres doctrine would destroy 
        the premise of the no-fault compensation system 
        currently applicable to all workers' compensation 
        programs, including military compensation programs. All 
        State and Federal workers' compensation laws provide a 
        no-fault compensation system as the exclusive remedy 
        for work-related injuries. Employees may not sue the 
        employer to seek larger recoveries, but employees will 
        be compensated even if there was no negligence or the 
        injured employee was negligent. Federal civilian 
        employees and all private sector employees are covered 
        by such no-fault workers' compensation systems; they 
        cannot sue their employer for injuries covered by 
        workers' compensation. The military disability 
        compensation system has the same premise, except that 
        military members are considered to be ``on duty'' 24-
        hours a day. Their no-fault compensation applies to 
        virtually all injuries at work or at home, and they may 
        not sue their employer (the United States) for any 
        injuries. This legislation would destroy that premise, 
        central to all employment-related compensation systems.

          LMoreover, as the Department of Justice pointed out 
        in testimony before the Senate Judiciary Committee 
        during the 107th Congress:

              LWhile it is sometimes argued that the Feres 
        doctrine is unfair to service members who are the 
        victims of medical malpractice, as we have seen, the 
        Feres doctrine is an adjunct to a military disability 
        compensation package available to service members 
        which, on the whole, is far more generous, even-handed, 
        and fair than compensation available to private 
        citizens under analogous state workers' compensation 
        schemes. This is because service members, unlike their 
        civilian counterparts who suffer serious adverse 
        consequences from medical care, generally are eligible 
        for compensation whether or not those consequences are, 
        or can be proven to be, the result of substandard 
        medical care. While, in certain cases, the compensation 
        may be somewhat less than what might be available to a 
        successful plaintiff who endures a medical malpractice 
        lawsuit (just as workers' compensation systems 
        generally provide lower benefits for work-related 
        injuries than what might be available through tort 
        litigation), the fact is that all of these service 
        members are eligible for such compensation rather than 
        only a small handful who can show a causal link between 
        their condition and substandard medical care. The 
        arbitrariness and uncertainty associated with tort 
        litigation is eliminated. Accordingly, from the 
        perspective of all service members who suffer adverse 
        consequences from medical care, the existing system of 
        compensation is in many ways superior to what they 
        would receive if they were private citizens.\11\
---------------------------------------------------------------------------
    \11\The Feres Doctrine: An Examination of the Military Exception to 
the Federal Tort Claims Act: Hearing Before S. Comm. on the Judiciary, 
107th Cong. (2002) (statement of Paul Clinton Harris, Deputy Associate 
Attorney General).

         LLawsuits will not improve military medicine. 
        Some assert that allowing malpractice claims will 
        improve military medicine because of the threat of 
        suit. However, this proposition cannot withstand close 
        analysis. First, FTCA suits are permitted for 
        approximately 70 percent of the patient population at 
        military medical facilities (e.g., retirees and 
        dependents of active-duty personnel). It defies belief 
        to assert that allowing tort claims by the remaining 30 
        percent would achieve any beneficial effect upon the 
        quality of health care. Any argument that military 
        physicians provide better care to those who may sue for 
        malpractice is a gratuitous insult to military 
        physicians. Second, medical malpractice liability would 
        impose costs on the military medical system that would 
        take away from the funding otherwise available to be 
        put towards improved medical care. The Congressional 
        Budget Office has given this legislation a preliminary 
        score of $2.9 billion over the next 10 years--that is 
        $2.9 billion that could be better spent by putting that 
        money back into the military medical system to make 
---------------------------------------------------------------------------
        improvements for all patients.

         LMedical malpractice tort litigation has 
        raised the cost of health care in the civilian setting. 
        Superimposing tort litigation on the military medical 
        system will also impose excessive costs on military 
        health care. According to Princeton University 
        economist Uwe Reinhardt, a primary driver of American 
        health care costs are ``higher treatment costs 
        triggered by our uniquely American tort laws.''\12\ The 
        question this presents is whether service members would 
        be better served by being allowed to file tort suits 
        for malpractice claims or by increasing funding and 
        making other improvements to the current comprehensive, 
        no-fault system. It would seem that improving the 
        current compensation system provided by the Departments 
        of Defense and Veterans Affairs would be a better 
        answer than introducing litigation into the military 
        medical setting.
---------------------------------------------------------------------------
    \12\Uwe Reinhardt, Why Does U.S. Health Care Cost So Much? (Part 
I), N.Y. Times (November 14, 2008); see also, e.g., Editorial, Our View 
on `Defensive' Medicine: Lawyers' Bills Pile High, Driving Up Health 
Care Costs, USA Today, December 29, 2008 (``A study last month by the 
Massachusetts Medical Society found that 83% of its doctors practice 
defensive medicine at a cost of at least $1.4 billion a year. 
Nationally, the cost is $60 billion-plus, according to the Health and 
Human Services Department.'').

         LThe cost to taxpayers of H.R. 1478 will be in 
        the billions, with the trial bar being a principal 
        beneficiary. The Congressional Budget Office (CBO) has 
        given H.R. 1478 a preliminary score of $2.9 billion 
        over the next ten years. Additionally, the FTCA allows 
        plaintiffs' attorneys to charge contingency fees of up 
        to 25 percent of the amount awarded. As a result, based 
        on CBO's score, up to $725 million of these awards will 
---------------------------------------------------------------------------
        be going to the trial bar, not to service members.

         LH.R. 1478 has an unreasonable retroactive 
        effective date of January 1, 1997. Statutes of 
        limitations help avoid circumstances in which evidence 
        is incomplete, documents have disappeared and testimony 
        relies on faded memories. Allowing military medical 
        malpractice claims that date back to 1997 will clearly 
        put in play all of these circumstances that statutes of 
        limitations are designed to avoid. For instance, in 
        many of these cases the armed services have likely 
        already disposed of the medical records as part of 
        normal document retention policies. Even if the medical 
        records still exist, memories of the events and 
        circumstances surrounding the alleged malpractice will 
        often have faded.

                         REPUBLICAN AMENDMENTS

    Republican Members offered three amendments to H.R. 1478 at 
the Committee markup. The first two Republican amendments were 
rejected and the third was withdrawn:

         LKing Amendment. Mr. King offered an amendment 
        to adjust the current 25 percent cap on fees in 
        litigated Federal Tort Claims Act cases down to 15 
        percent and the current 20 percent cap on fees in 
        settled cases to 10 percent. The purpose of the 
        amendment was to maximize the recoveries that service 
        members would receive in medical malpractice cases 
        brought pursuant to H.R. 1478.

         LFranks Amendment. Mr. Franks offered an 
        amendment to require the General Accountability Office 
        (GAO) to conduct a study of several issues related to 
        medical malpractice by military medical personnel 
        before repealing the Feres doctrine for medical 
        malpractice claims. The Committee only held one 
        subcommittee hearing on this legislation prior to 
        markup and neither the Department of Defense nor the 
        Department of Justice testified at that hearing. Mr. 
        Franks' amendment would put a reasonable hold on H.R. 
        1478 so that GAO could conduct a study of the current 
        system to provide Congress with at least some of the 
        information needed to make an educated decision on 
        whether to repeal the Feres doctrine for medical 
        malpractice claims.

         LRooney Amendment. Mr. Rooney offered an 
        amendment to make clear that the exclusion for 
        ``combatant activities'' contained in the subcommittee 
        amendment to H.R. 1478 also includes training 
        activities. In many instances, the same factors that 
        weigh in favor of excluding combatant activities from 
        medical malpractice-related liability will also be 
        present for training activities. Mr. Rooney withdrew 
        his amendment with assurances that consideration for 
        his concerns regarding training activities would be 
        included in the bill before it reaches the floor.

                               CONCLUSION

    A recent article in Legal Times noted that H.R. 1478 is the 
first ``preview of the coming fight'' in Congress on behalf of 
the trial lawyers ``over proposals that would open new areas 
for civil litigation.''\13\ That article further surmises that 
the trial lawyers are ``testing whether they can translate 
their newfound political capital into legislative 
victories.''\14\ However, the trial lawyers' interests in 
creating more lawsuits and service members' interests in 
receiving the best medical benefits possible almost certainly 
do not merge when it comes to modifying the Feres doctrine. As 
General John D. Altenburg, the former Deputy Judge Advocate 
General of the Army, reasoned at the subcommittee hearing on 
H.R. 1478, ``creating a special right to sue is not what will 
improve medical benefits.''\15\ In other words, if military 
medical benefits and disability compensation are inadequate, 
allowing lawsuits is not the answer. Rather, Congress should be 
looking to improve the military medical benefits and 
compensation systems instead of turning matters over to the 
trial bar.
---------------------------------------------------------------------------
    \13\David Ingram, Plaintiffs Bar Pushes Capitol Hill Agenda, Legal 
Times, March 31, 2009.
    \14\Id.
    \15\H.R. 1478, the ``Carmelo Rodriguez Military Medical 
Accountability Act of 2009'': Hearing Before the Subcomm. on Commercial 
and Administrative Law of the H. Comm. on the Judiciary, 111th Cong. 
(2009) (statement of General John D. Altenburg, Jr. USA (Retired)).
---------------------------------------------------------------------------
    As General Altenburg stated in his written testimony from 
the subcommittee hearing on H.R. 1478,

        LCongress can better serve our service members and 
        their families by improving benefits, by eliminating 
        disparities and inequities, and by increasing 
        compensation to better approximate damage recoveries of 
        civil lawsuits. . . . Lawsuits are not the answer to 
        what is admittedly a problem. America's fighting men 
        and women and their families need meaningful and 
        responsible compensation benefits . . . that can be 
        timely delivered in a non-adversarial administrative 
        forum with appropriate checks and balances, without 
        making our brave service members resort to 
        litigation.\16\
---------------------------------------------------------------------------
    \16\Id.

                                   Lamar Smith.
                                   F. James Sensenbrenner, Jr.
                                   Elton Gallegly.
                                   Bob Goodlatte.
                                   Darrell E. Issa.
                                   Steve King.
                                   Trent Franks.
                                   Ted Poe.
                                   Tom Rooney.
                                   Gregg Harper.

                                  

```