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48–232 PDF 2009

CARMELO RODRIGUEZ MILITARY MEDICAL 

ACCOUNTABILITY ACT OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON

H.R. 1478 

MARCH 24, 2009 

Serial No. 111–7 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

STEVE COHEN, Tennessee, Chairman 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

BRAD SHERMAN, California 

DANIEL MAFFEI, New York 

ZOE LOFGREN, California 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JOHN CONYERS, JR., Michigan 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

HOWARD COBLE, North Carolina 

STEVE KING, Iowa 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

MARCH 24, 2009 

Page 

THE BILL 

H.R. 1478, the ‘‘Carmelo Rodriguez Military Medical Accountability Act of 

2009’’ ..................................................................................................................... 3 

OPENING STATEMENTS 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................................................... 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on Commercial and Administrative Law .................................................................................................. 7 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on Commercial and Administrative Law .................................. 68 

WITNESSES 

The Honorable Maurice D. Hinchey, a Representative in Congress from the 

State of New York 

Oral Testimony ..................................................................................................... 84 

Prepared Statement ............................................................................................. 88 

Mr. Stephen A. Saltzburg, Professor, The George Washington University Law 

School, Washington, DC 

Oral Testimony ..................................................................................................... 96 

Prepared Statement ............................................................................................. 98 

Ms. Ivette Rodriguez, Wurtsboro, NY 

Oral Testimony ..................................................................................................... 116 

Prepared Statement ............................................................................................. 118 

John D. Altenburg, Jr., Esq., Major General (Retired), United States Army, 

Greenberg Traurig, LLP 

Oral Testimony ..................................................................................................... 122 

Prepared Statement ............................................................................................. 124 

Eugene R. Fidell, Esq., Yale Law School, National Institute of Military Justice, Washington, DC 

Oral Testimony ..................................................................................................... 146 

Prepared Statement ............................................................................................. 148 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted for the hearing by the Honorable Trent Franks, a Representative in Congress from the State of Arizona, and Ranking Member, 

Subcommittee on Commercial and Administrative Law .................................. 9 

Material submitted for the hearing by the Honorable John Conyers, Jr., 

a Representative in Congress from the State of Michigan, Chairman, Committee on the Judiciary, and Member, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 69 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 171

Response to Post-Hearing Questions from Stephen A. Saltzburg, Professor, 

The George Washington University Law School, Washington, DC ................. 172 

Response to Post-Hearing Questions from John D. Altenburg, Jr., Esq., Major 

General (Retired), United States Army, Greenberg Traurig, LLP ................... 174 

Response to Post-Hearing Questions from Eugene R. Fidell, Esq., Yale Law 

School, National Institute of Military Justice, Washington, DC ...................... 232 

Letter from Stephen A. Saltzburg, Professor, The George Washington University Law School, Washington, DC ....................................................................... 235 

Letter from Adele Connell, Ph.D., Colonel, United States Army ........................ 236 

Letter from Alexis Witt ........................................................................................... 242 

Letter from L. Richard Fried, Jr., Esq., Cronin, Fried, Sekiya, Kekina & 

Fairbanks .............................................................................................................. 248 

Letter from Barb Cragnotti, VERPA Chair/Legislative Coordinator .................. 249 

(1) 

CARMELO RODRIGUEZ MILITARY MEDICAL 

ACCOUNTABILITY ACT OF 2009 

TUESDAY, MARCH 24, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:24 p.m., in room 

2141, Rayburn House Office Building, the Honorable Steve Cohen 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Cohen, Conyers, Maffei, Scott, Franks, 

Jordan, and King. 

Staff present: Matthew Wiener, Majority Counsel; Adam Russell, 

Majority Professional Staff Member; and Zachary Somers, Minority 

Counsel. 

Mr. COHEN. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law will now 

come to order. Without objection, the Chair will be authorized to 

declare a recess of the hearing. I will now recognize myself for a 

short statement. 

The Federal Tort Claims Act makes the Federal Government liable for injuries or death caused by the negligence of its employees; 

however, Congress excluded a couple exceptions in the act. One excludes any claim arising out of the combatant activities of the military or naval forces or the Coast Guard during time of war. In a 

1950 case called Feres v. United States, the U.S. Supreme Court 

created another exception: that service members can never sue 

under the act whenever their injuries are incidents of service. That 

hole that has come to be known as the Feres Doctrine. 

The Court has reasoned that Congress must have intended to exclude suits by service members even though it provided no such exclusion in the actual language of the act. The Court has offered 

several reasons for its conclusion, the main one being that Congress must have believed that tort lawsuits by service members 

would interfere with military discipline and put civilian courts in 

the business of second guessing military decision-making. 

The Feres Doctrine has been subject to strong criticism within 

the Court itself. Justices who have been as diverse in their approaches to statutory interpretations as Justices Stevens and 

Scalia have condemned it. Nevertheless, the Court has stood by it 

for almost 60 years and will likely continue to do so. 

2 

Several bills have been introduced over the years that would 

have harshly overturned Feres and allowed service members to 

bring medical malpractice claims. One such bill passed the House 

during the late 1980’s. 

Enter Maurice, Representative Maurice Hinchey, who will testify 

before us today. He has returned to the issue this Congress by introducing H.R. 1478, the ‘‘Carmelo Rodriguez Military Medical Accountability Act of 2009.’’ H.R. 1478 would allow service members 

injured or killed as a result of military medical malpractice to bring 

suit under the Federal Tort Claims Act with one important exception: they would not be allowed to bring suits ‘‘arising out of the 

combatant activity of the armed forces during times of armed conflict.’’ 

Today’s hearing will examine H.R. 1478 and whether there is 

adequate justification for continuing to deny our active duty service 

members legal redress under the Federal Tort Claims Act when 

they are killed or injured as a result of medical malpractice. Accordingly, I look forward to receiving today’s testimony. 

[The bill, H.R. 1478, follows:] 

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Mr. COHEN. I now recognize my colleague, Mr. Franks, the distinguished Ranking Member of the Subcommittee, for his opening 

remarks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. And let me begin, 

sir, by emphasizing that I sincerely embrace the concern expressed 

by this legislation for service members who have suffered because 

of medical malpractice. As you may know, sir, I am a member of 

the Armed Services Committee, and I believe that one of my greatest responsibilities as a Member of Congress is the needs and the 

interests of those men and women who put their lives on the line 

for the sake of this country, and that is a very deep commitment 

on my part. 

In order to maintain a well-disciplined, motivated military, it is 

essential that service members understand that they are being 

treated fairly in all aspects, including fair compensation for servicerelated injuries. The question this legislation raises, however, is 

whether removing the Feres bar to medical malpractice would further military discipline, morale, and fair compensation. And Mr. 

Chairman, it is my sincere opinion that it would not. 

Rather, this bill would superimpose on the military’s uniform nofault compensation system a privileged class of claimants within 

the armed forces itself. H.R. 1478 would create the anomaly of offering a tort remedy with the possibility of substantial compensation to a member who loses a limb through a medical mistake 

while denying the same compensation to one who loses the limb in 

combat. 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. 

What is more, Mr. Chairman, because the Federal Tort Claims 

Act bases liability on state law, recovery will depend upon 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 and justice needed to preserve military morale. 

One of the chief benefits of the existing statutory compensation 

structure, along with the doctrine, is that comparable injuries are 

treated uniformly. This uniformity promotes military discipline, 

morale, unity, and commitment. While it is sometimes argued that 

the Feres Doctrine is unfair to service members who are the victims 

of medical malpractice, the Feres Doctrine is an adjunct to the military disability compensation package that is available to service 

members. 

If we believe that the current system is inadequate or is producing unfair results, we should work to correct that system. We 

should not take the expedient of turning select military claims over 

to trial lawyers and the tort system. In short, if the current nofault military compensation program needs to be improved, if additional funding or other reform is needed, then we should improve 

that program. There is not excuse for providing our troops less 

compensation than they deserve. 

8 

And I want you to know, just outside the bounds of my written 

comment here, I would be one that would be very open to increasing that compensation to those soldiers who put themselves in such 

harm’s way. 

However, if the current system is not working properly, repealing 

the Feres Doctrine is not the solution. This country can provide our 

service members with the meaningful benefits that they need without making the brave men and women that serve resort to litigation. Thus, our focus should not be on allowing medical malpractice 

litigation, but on improving the overall military compensation system for all of this country’s service members. 

So before closing, I just want to note that I am disappointed that 

we did not hold this hearing at a time when the Departments of 

Justice and Defense were available to give their views on this legislation, and I would ask unanimous consent to enter into the record 

testimony from those departments from the 1991 and 2000 hearings on legislation to modify the Feres Doctrine. 

And with that Madam—I mean, Mr. Chairman—with that, Mr. 

Chairman, I would yield back and thank you, sir. 

Mr. COHEN. I thank the gentleman for his statement. We will accept the testimony, as dated as it may be, as part of the record, 

although I believe we did invite them to testify and—— 

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Mr. FRANKS [continuing]. You did invite them to testify? They 

weren’t available? Okay. They weren’t available. 

Mr. COHEN. I now recognize Mr. Conyers, a distinguished Member of the Subcommittee, and the Chairman of the Committee on 

the Judiciary. 

Mr. CONYERS. Thank you, Chairman Cohen. I think this is important. 

I don’t know what some lawyers have against other lawyers. I 

mean, this has—it has always been incredible to me, some of the 

people that criticize lawyers. You know, when you want a lawyer, 

you want a good, tough, aggressive lawyer, but when somebody else 

wants one you say, ‘‘Oh, gosh. Here we go with the litigation 

again.’’ 

Now, there are some things that aren’t understood here about 

this matter. Nobody in the service can be sued—nobody—whether 

you lost a limb or anything else. So that has absolutely nothing to 

do with the measure that Mr. Hinchey—Maurice Hinchey—brings 

before us today. 

And the Defense Department didn’t want to come before us. That 

is why they aren’t here. 

Now, I am going to do something I rarely do: quote Justice 

Scalia. I mean, this is a—I can’t ever remember doing this before. 

But everybody gets something right sometimes. Broken clocks are 

right at least once a day—twice a day. Thanks. 

Here is Justice Scalia: ‘‘As it did almost 4 decades ago in Feres, 

the Court today provides several reasons why Congress might have 

been wise to exempt from the Federal Tort Claims Act certain 

claims brought by servicemen. The problem now, as then, is that 

Congress not only failed to provide such exemption, but quite plainly excluded it. We have not been asked by respondent here to overrule Feres, but I can perceive no reason to accept petitioners’ invitation to extend it as the Court does today.’’ 

I ask unanimous consent to put the full opinion into the record, 

and I yield back the balance of my time. 

Mr. COHEN. Without objection, the second clock—broken clock— 

will be put into the record. 

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Mr. COHEN. I thank the gentleman for his statement. Without 

objection, other Members’ statements will be included in the record. 

I am now pleased to introduce the witnesses for our first panel. 

The witness, singular, is Representative Maurice Hinchey. Congressman Hinchey represents New York’s 22nd congressional district, which spans eight counties from the Hudson Valley to the 

Finger Lakes Region. A ninth-term Member of Congress, Mr. Hinchey is a Member of the House Appropriations Committee, the 

House of Natural Resources Committee, and the Bicameral Joint 

Economic Committee. 

Prior to his election to Congress, Mr. Hinchey served 18 years at 

the New York State Assembly. He was the first Democrat elected 

to the state legislature from Ulster County since 1912, and only the 

second since the Civil War. Mr. Hinchey is the sponsor of H.R. 

1478. 

Thank you for participating at today’s hearing, and although I 

am sure you know the procedure I will go over it with you for the 

benefit of the other witnesses. Without objection, your written 

statement and the others will be placed into the record, and we 

would ask that you limit your oral remarks to 5 minutes. 

We have a lighting system, and at 4 minutes the yellow light 

comes on which says you have a minute left. You will have a green 

light on that starts, yellow says 1 minute left, then at the end of 

that minute a red light comes on, in which case your testimony 

should have concluded. 

After each witness has presented his or her testimony, Subcommittees Members will be permitted to ask questions subject to 

the same 5-minute limit. 

Mr. Hinchey will start his testimony, but his testimony will 

begin, at his request and with the agreement of the minority, with 

a testimony that Mr. Hinchey has through a short video. And before the video I recognize Mr. Hinchey to precede the video, which 

we have. 

Mr. Hinchey, you are recognized. 

TESTIMONY OF THE HONORABLE MAURICE D. HINCHEY, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 

YORK 

Mr. HINCHEY. Chairman Cohen, I thank you very much, sir. 

Also, Ranking Member Franks, I thank you very much. 

And Chairman Conyers, Chairman of the Judiciary Committee, 

I very much appreciate you being here. 

All of the other very distinguished Members of this Subcommittee, I thank you for the attention that you are giving to discuss the Carmelo Rodriguez Military Medical Accountability Act of 

2009. The focus of this hearing is about equal protection under the 

law. The question before you is whether or not we, as Members of 

the Congress, believe that members of our Nation’s military are deserving of the same rights as you and I and the rest of our country. 

In our country, if you or a member of your family goes to a doctor 

or medical professional for treatment and that professional is negligent in their job, you have the legal right to hold that health care 

provider accountable, through the judicial system. For example, if 

you had a planned surgery to amputate your left leg and the doctor 

85 

involved was negligent, and that surgery removed your right leg, 

you would have a method of recourse. That recourse is available for 

all of our citizens, including those in Federal prison; but that is not 

the case for members of the military. 

I thank you very much for the opportunity to display this video, 

and if we could see it now, I think it would be very interesting. 

Mr. COHEN. Thank you—— 

Mr. HINCHEY. This is a story about one Marine who served his 

country with honor. One Marine, one family. What happened to 

them has happened before. 

[Begin video clip.] 

VOICE. You are looking at Carmelo Rodriguez dancing with his 

niece—by all accounts, this 29-year-old loved life, his family, and 

the Marine Corps. In August, a part-time actor—here he is with actress Katie Holmes in the scene from the TV series, ‘‘Dawson’s 

Creek.’’ And this is Sergeant Rodriguez with his Marine buddies in 

Iraq in 2005, a fit, gung-ho platoon leader. 

VOICE. It is not fair. 

VOICE. This was Sergeant Rodriguez when I met him: that once 

buff physique whittled down to less than 80 pounds in 18 months 

by stage four melanoma, surrounded by family, his 7-year-old son 

holding his hand. It was the sergeant’s idea we meet. 

When Sergeant Rodriguez was in Iraq, military doctors, he says, 

misdiagnosed his skin cancer. They called it a wart. 

Eight minutes after I met Sergeant Carmelo Rodriguez, as we 

were preparing for an interview, he died. At his family’s insistence 

we stayed. With his body in the next room, we sat down with his 

relatives. 

Why—for such a painful moment for your family? 

VOICE. His wish is to have this known, because he don’t want no 

other soldier to fight for his country and go through what he had 

to go through, and be neglected. 

VOICE. He said, ‘‘Don’t let this just be it. Don’t let this be it. 

Fight.’’ So that is what we are doing. 

VOICE. Their fight is over what is known as the Feres Doctrine, 

a 1950 Supreme Court ruling that bars active duty military personnel and their families from suing the Federal Government for 

injuries incidental to their service. In other words, unlike every 

other U.S. citizen, people in the military can not sue the Federal 

Government for medical malpractice. 

You use the word ‘‘neglected.’’ Explain. 

VOICE. When he enlisted in 1997, his initial medical checkup, or, 

I mean, physical, the doctor documented that he had melanoma but 

never told him, or never had anybody follow up on it. And that was 

back in 1997. If we would have known that in 1997, he would still 

be with us. 

VOICE. Here is that medical report. The doctor notes skin as ‘‘abnormal.’’ In further details, he describes it as melanoma on the 

right buttocks. There is not recommendation for further treatment. 

Eight years pass. Sergeant Rodriguez is in Iraq. 

VOICE. It is a birthmark. It is about that big and about that— 

it has a raise—like that and pussing. Who does that? How does 

that happen? I just don’t understand it. It is not right. It is not 

right. 

86 

Twenty-nine years old, you know, and all his life was good. 

Never into drugs; never into partying; never—served his country 

faithful; served the Lord faithfully. And he held out positive, because he is a soldier. He is a warrior. He is a Marine. He fought 

for his country and also for his family. 

VOICE. According to a veterans group that tracks soldiers who 

are misdiagnosed, there are hundreds of cases across the country. 

Twenty-five-year-old Air Force Staff Sergeant Dean Patrick Witt 

was one of them. Witt’s family says his appendicitis was repeatedly 

misdiagnosed. After emergency surgery, Witt ended up brain-dead. 

He later died. 

Military law expert Eugene Fidell. 

You talk to military families who believe they have a malpractice 

case against the military, and you tell them what? 

Mr. FIDELL. It is very, very difficult when I get these calls. And 

I get these calls repeatedly over the course of the year; I probably 

get one every 2 months. These people have to be made to understand that the law simply doesn’t permit them to bring a lawsuit. 

They can bring a lawsuit, but their lawsuit will be a complete 

waste of time. 

VOICE. We showed Attorney Fidell a copy of Sergeant Rodriguez’s 

medical records, military emails. Sergeant Rodriguez’s commanding 

officer, Lieutenant Colonel B.W. Barnhill, quotes a military nurse 

who called Rodriguez’s case, ‘‘a major screw-up. He should have 

been immediately seen and the wart removed, and we may not 

have gotten to where we are now.’’ 

VOICE. Well, he is in Iraq and the doctor says, ‘‘Have someone 

look at it when you get it back to the states in 5 months.’’ If a 

member of my family had a comparable condition myself and somebody said, ‘‘I am sorry. No one can see you for 5 months,’’ I would 

fire the doctor. He didn’t have that option. No, he didn’t. I hope 

Members of Congress are watching this show, because the law has 

got to change—— 

[End video clip.] 

Mr. COHEN. You are recognized, Mr. Hinchey. 

Mr. HINCHEY. Thank you very much, Chairman Cohen. I very 

much appreciate it. 

As we have just seen and heard, in 1950, nearly 60 years ago, 

the U.S. Supreme Court ruled, in Feres v. United States, that military members and their families have no right or ability to sue the 

military for negligent medical care given to them during their service. The ruling, which has subsequently been referred to as the 

Feres Doctrine, has left families with no recourse for addressing the 

loss of a loved one due to obvious medical malpractice by military 

doctors or other medical personnel. 

Sadly, the Rodriguez family is all too familiar with this situation. 

Sergeant Carmelo Rodriguez was a young, strong Marine. He was 

dedicated to his country and his family. He served admirably as a 

platoon leader in Iraq. After being repeatedly misdiagnosed by 

military doctors, Sergeant Rodriguez’s cancer spread throughout 

his body and weakened him to the point that he went from being 

an athlete, strong at 190 pounds, to a man weighing less than 80 

pounds. 

87 

He left behind a loving family, including a 7-year-old son. The 

death of Sergeant Rodriguez is an extraordinary tragedy that has 

left his family with nowhere to turn. As a result of a misguided law 

and subsequent U.S. Supreme Court ruling, the Rodriguez family 

and many other military families in similar situations have no way 

of holding the military responsible for the negligence of military 

medical personnel. And I might say that this kind of negligence is 

less likely to occur if that responsibility were put into place. 

Joining the military should not mean that one has to give up his 

or her right to hold medical providers accountable. The Carmelo 

Rodriguez Military Medical Accountability Act of 2009 will finally 

bring accountability into the military medical system and afford 

our service members and their families the same rights that the 

rest of us have when it comes to medical malpractice. 

This bill would legislatively reverse the Feres Doctrine; it would 

only apply to military personnel who were injured by medical negligence by military medical personnel. Importantly, this legislation 

prohibits any claim arising out of the combatant activities of the 

armed forces during times of armed conflict, which means military 

medical personnel working in combat would continue to be exempt. 

In addition, this legislation would require the payment of any 

claims to be reduced by the value of other Federal benefits received 

as a result of the injury. In addition to providing the Rodriguez 

family and other military families with a way to hold the military 

accountable for the wrongful death and injuries of loved ones, this 

bill helps ensure that the military, like any other health care institution, takes steps to improve care so that no one else ever has to 

go through what the Rodriguez family has endured. 

Sergeant Rodriguez’s situation speaks directly to the fact that 

our military, including the military’s health care system, has been 

spread far too thin by our ongoing military operations. Our military 

is facing shortfalls of doctors, nurses, and other health care staff 

across the board. It is incumbent upon the military to ensure that 

it has doctors who know how to diagnose non-combat injuries and 

disease, such as skin cancer, rather than just having doctors who 

are trained to treat combat wounds. 

In the opinion of the Subcommittee, how could it be possible that 

of all Americans, members of all the military and their families are 

left no recourse in the face of such medical negligence? Unfortunately, the Rodriguez family is not in any way alone. In California, 

the wife and two small children of Staff Sergeant Dean Witt want 

to know why the military can’t be held accountable when he died 

after routine appendicitis surgery. 

Christine Lemp, whose husband, James, died after receiving 

questionable medical care for a stomach virus in Missouri deserves 

to know why there is no recourse to holding the military accountable for his death. Eight National Guardsmen and their families in 

the New York City area deserve answers in the face of the medical 

negligence that occurred after their exposure to depleted uranium. 

This country and this Congress have affirmed their support for 

the men, women, and families of the United States military, and 

now this lasting injustice must be fixed. This bill isn’t about members of the military being compensated fairly for medical negligence; it is about holding our military accountable for its actions 

88 

and for its responsibility to its members, thereby making them 

more accountable. 

As a veteran and Member of Congress, I believe we must match 

the dedication and sacrifice of our soldiers with the adequate 

health care they deserve and a fair avenue of recourse in the case 

that they do not receive that health care which they do deserve. I 

am hopeful that this Subcommittee will agree and work with us to 

advance this important legislation, and I deeply express my gratitude and appreciation to you for the attention that you are paying 

to this issue. 

I thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Hinchey follows:] 

PREPARED STATEMENT OF THE HONORABLE MAURICE D. HINCHEY, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF NEW YORK


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Mr. COHEN. Thank you, Mr. Hinchey. I appreciate your testimony and the video, which is compelling. 

Let me ask you a question. You distinguish medical malpractice 

claims that might be based on injuries in combat. Why do you 

think that is an equitable portion of the law? Why should they be 

distinguished? 

Mr. HINCHEY. Well, the situation in combat is very difficult and 

very dangerous, and the medical attention that has to be given 

there has to be immediate, and it has to be in ways that are designed to save the life of that person. And it is a very dramatic and 

very, very strong action that has to be taken on behalf of those who 

are injured or wounded, whatever the circumstances might be. So 

I don’t think it is the same situation. 

What we are talking about here is in the context of military personnel who become injured in the same way that anyone can become injured: some form of disease, some form of other circumstances that are going to impede upon their health and may 

impede upon that health so adversely that it is going to result in 

their death. So it is a very strong, different set of circumstances, 

neither of which are held accountable now. 

What we are saying in this legislation is that there is one aspect 

of these situations where accountability must be ensured to make 

certain that people who have the kind of skin cancer that Mr. 

Rodriguez had, or the kind of appendicitis that other military personnel have had received proper and appropriate attention. It 

needs it quickly and it needs it responsibly, and it needs to be 

taken care of because it is a relatively easy thing to do. But if an 

injury is not—if it is not attended to quickly and responsibly—it 

can, as we have seen in these two instances and numerous other 

examples, how it can cause the death of the military personnel who 

are ignored as a result of these set of circumstances and this Feres 

Doctrine. 

Mr. COHEN. So you believe that a medic operating in a combat 

environment, with weapons, rockets possibly coming in, weapons 

fire, et cetera, might have a different basis of making a decision 

than the luxury of his office—his or her office? 

Mr. HINCHEY. Well, obviously the people who are in military circumstance and who are injured, who are wounded, who suffer in 

some way or another physically, need to get the proper attention 

and they need to get it quickly. But the circumstances there you 

are dealing with are very, very difficult, and very, very dangerous 

for the people who are wounded and for the people who are providing the medical care and attention. 

So I think it is just a different set of circumstances that has to 

be dealt with in a different way; not as simply as this set of circumstances here, which involve the kind of simple medical problems and the resulting medical malpractice, which causes their increasingly serious injury, and in the cases that we have seen, eventually their death. 

Mr. COHEN. What is your response to the argument about military discipline? 

Mr. HINCHEY. Military discipline? 

Mr. COHEN. Yes, sir. 

94 

Mr. HINCHEY. Military discipline, of course, is very important. 

Military discipline—if military discipline would occur in the proper 

way, then the discipline that you would expect from professional 

medical personnel would have been applied to the Rodriguez condition, and the medical malpractice that we see that resulted in his 

death would never have occurred. So that kind of responsibility is 

very, very important, and that is what we are trying to do, basically, in the context of this proposed legislation: make certain that 

people who are engaged in their objects of responsibility in the context of their military obligations, whatever they may be, including 

military health care responsibilities, deal with them in ways that 

are responsible, in the best possible way, to help and assist the 

military personnel, to ensure that they are getting the right kind 

of attention. 

Mr. COHEN. Thank you, sir. I have no further questions. 

Mr. Franks, do you have questions, or any Member of the panel 

have questions? 

If there are no questions of—— 

Mr. King, I am sorry. Mr. King, from Iowa, is recognized. 

Mr. KING. Thank you, Mr. Chairman. 

I want to thank the Congressman Hinchey for his testimony, and 

it is obvious you have done a lot of work on this, and the very clear 

and concise way that you have delivered it tells me that. I just 

have a couple of questions that I am curious about, and that is, will 

service members under your bill, would they be able to recover noneconomic damages? 

Mr. HINCHEY. We are not talking about economic damages; we 

are talking about the responsibility of providing health care in the 

appropriate way, just the same way that civilians who receive incompetent heath care have the right, and in many cases simply the 

obligation, to ensure that these responsibilities are taken care of in 

the appropriate way. 

Mr. KING. Let me phrase it another way. We commonly refer to 

those as punitive damages, and so non-economic is more a term we 

use inside this Committee, but what about punitive damages, and 

I am thinking of the lady with the $7 million cup of coffee spilled 

in her lap, but that is, of course, the extreme of the extreme. 

Mr. HINCHEY. Would you say that again? I couldn’t hear that. 

Mr. KING. I am talking about punitive damages, and I would use 

that as a definition outside of the legal term we use here called 

non-economic, but the punishment that might be delivered out— 

one thing is to make a patient whole and recover their actual real 

loss and their loss of income, but it is another to send a message 

by granting a significant award to a claimant, and that is the noneconomic component, or the punitive. Under your bill, would it 

allow for that kind of award too, that goes beyond the loss itself? 

Mr. HINCHEY. Well, that would be up to the judicial process. It 

would be up to the court to make those kinds of decisions. What 

we are trying to do here is to say that the Feres Doctrine, which 

prevents military personnel from having the ability to go to court 

to get those kinds of decisions put into place based upon a clear, 

accurate analysis of the set of circumstances, that that Feres Doctrine is doing an awful lot of harm to military personnel. So that 

95 

kind of decision is going to be made by the courts through the judicial process. 

We want to open the court and open that judicial process for 

these military personnel. 

Mr. KING. I take that that there is not, then, a limiting provision 

in the bill at this point, that might limit it to actual losses rather 

than the punitive damages that go beyond that. That is a point of 

information I appreciate. 

And then, as you have studied this and worked on this, have you 

been able to determine that the increase in the medical malpractice 

liability suits in the civilian world, have they served to increase the 

quality of medical care or has there been more accountability that 

is measurable and quantifiable? 

Mr. HINCHEY. I think the responsibility for medical malpractice 

has done a significant amount of good work to upgrade the quality 

of health care in a variety of ways, including the likelihood that 

medical personnel—medical responsible people—who are not capable of delivering the right kind of health care will soon find that 

they would have to find something else to do. They wouldn’t be doctors any longer. They wouldn’t be other forms of health care personnel any longer. So I think that that is one of the things that 

is very important here: We want to have good, competent, highlyqualified personnel dealing with the normal set of circumstances to 

which military personnel might be involved with. 

Mr. KING. Thank you. And then, Mr. Hinchey, I thank you. And 

to restate my question maybe more precisely would be: Is there 

quantifiable data out there with studies that have been done that 

would support the judgment that you have delivered to the Committee here, that would support the argument that we have higher 

quality health care, adequate access to health care, and more accountability because of the litigation on malpractice? 

Mr. HINCHEY. Oh, I think that is very clear, yes. There is an 

awful lot of history of this situation, and I think that it is very 

clear in just a routine examination of that history, it is quite obvious that accountability upgrades quality. 

Mr. KING. Let me offer an alternative scenario, and I don’t have 

the data on either side, so this is our conversation here. And that 

is, I am thinking about what goes on in the mind of someone who 

wants to enter the medical profession, and let us say often it is two 

or three generations of doctors, and if they are seeing high—and 

this is the civilian world, not speaking of this case at all—but 

often, they will look at the cost of the medical malpractice insurance, the litigation that is there—many doctors are sued—and so, 

are there fewer doctors because of the litigation in the civilian 

world, and is that part of the studies that you might be able to 

produce for this Committee? And then, would that translate itself 

into fewer doctors in the military world as well? And I take your 

point about doctors that have skills within the area where they 

need to be; not just battlefield doctors, but doctors that can diagnose melanoma. 

Mr. HINCHEY. I don’t think there are fewer doctors, no. I think 

that that has not had an impact on the number of doctors that are 

available. I think it has an impact, however, on the quality of medical personnel. And I think it has an impact on the focus of attenVerDate Aug 31 2005 16:18 Jun 02, 2009 Jkt 000000 PO 00000 Frm 00099 Fmt 6633 Sfmt 6601 H:\WORK\COMM\032409\48232.000 HJUD1 PsN: 48232
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tion of medical personnel, just as it does and should for any particular profession or any particular activity. Whatever we are 

doing—— 

Mr. KING. I think we are getting—— 

Mr. HINCHEY. Whatever we are doing, we should be doing it as 

well as we can. 

Mr. KING. I see that we have bypassed the yellow light and gone 

to the red one appropriately, and I would thank the gentleman and 

yield back the balance of my time. 

Mr. COHEN. Thank you, sir. Are there other Members who would 

like to ask the representative a question? 

If not, I thank Mr. Hinchey for his testimony, and he may be excused. 

Mr. HINCHEY. Chairman Cohen, I thank you. 

Mr. COHEN. And I thank you for your service to our country in 

the military as well as here in Congress. 

Will the second panel now be seated? 

Our first witness is Stephen Saltzburg, who is testifying on behalf of the American Bar Association. Professor Saltzburg joined 

the George Washington School of Law in 1990. Before that he 

taught at the University of Virginia School of Law and was named 

the first incumbent of the class of 1962 endowed chair. In 1996, 

Professor Saltzburg founded and directed the master’s program of 

litigation and dispute resolution at George Washington Law School. 

In 2004 he was named University Professor, the highest title a 

university can confer upon a faculty member. Professor Saltzburg 

has served as a special master in two class action cases in the D.C. 

District Court and continues to serve as the mediator for the D.C. 

Court of Appeals. 

He has mediated on a variety of disputes involving public agencies and private litigants, served as a special sole arbitrator, panel 

chair, and panel member of domestic arbitrations, and served as an 

arbitrator for the International Chamber of Commerce. Professor 

Saltzburg is the author of numerous books and articles on evidence, procedure, and litigation. 

I now recognize Mr. Saltzburg for his testimony. 

Turn yourself on. 

TESTIMONY OF STEPHEN A. SALTZBURG, PROFESSOR, THE 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, DC 

Mr. SALTZBURG. Sorry. Mr. Chairman, Ranking Member Franks, 

Members of the Committee, it is an honor for me to be here today, 

and it is a special honor to be part of this panel. Gene Fidell and 

I have served together for many years on the National Institute of 

Military Justice, which we founded in 1991. To be with the sister 

of Carmelo Rodriguez is a particular honor, and General Altenburg 

is someone I have admired for many years. 

You have my written statement, and I don’t intend to read any 

portion of it. I would much rather answer questions if you have 

them. But there are a few points I did want to make, and they are 

these: that the American Bar Association has long urged Congress 

to amend Feres, starting with medical malpractice. And if Congress 

doesn’t do it, it will never change, because as the Subcommittee I 

97 

am sure is aware, the basic Supreme Court approach to statutes 

is, once it interprets a statute, if it gets it wrong it expects Congress to say so and to amend the statute. 

Unlike a constitutional ruling, where Congress can’t change it except by proposing a constitutional amendment, the Court will often 

reverse itself in the nonconstitutional case. This won’t happen with 

Feres, and that is why we have had this doctrine for going on—almost 60 years. Now, a question was asked during the first panel, 

what about the effect on military discipline? And there are reasons 

why, I think, people could debate—reasonable people—could debate 

the ABA broader proposal that would say, ‘‘Let us do away with 

Feres completely and apply the Federal Tort Claims Act exception, 

and just use the exceptions and just get rid of this doctrine.’’ 

But when it comes to medical malpractice cases, 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. The kinds of military treatment and military 

interventions that are the subject of the bill simply are far removed 

from battlefield decisions, command decisions, the kind of decisions 

that General Altenburg was called upon to make throughout his career. 

There are questions about—Justice Scalia raised these—there 

are questions about whether or not it is a good thing to have state 

laws, which get incorporated in the Federal Tort Claims Act, providing different standards for military members. But as Justice 

Scalia said, it is a lot better to have non-uniform relief that is 

available than to have relief uniformly unavailable. 

I think that, as the film that we all saw just a little while ago 

points out, that there is a crying need for military members simply 

to be able to be compensated when their health or their life is 

taken, ruined, as a result of medical malpractice. The American 

Bar Association House of Delegates supported a broader resolution, 

but has long supported the reform of Feres to deal with medical 

malpractice. 

If the Subcommittee has any questions, I would be more than 

pleased to answer them. 

[The prepared statement of Mr. Saltzburg follows:] 

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PREPARED STATEMENT OF STEPHEN A. SALTZBURG


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Mr. COHEN. Thank you, Mr. Saltzburg. We probably will have 

questions, but we will do that after we complete the panel testimony. 

Our second witness is Ivette Rodriguez. Ms. Rodriguez is a stayat-home mother from Wurtsboro, New York. Her brother, Sergeant 

Carmelo Rodriguez, was a decorated Marine and platoon leader 

who died of a misdiagnosed skin cancer, obviously the subject of 

the video we saw. 

Ms. Rodriguez, thank you so much for coming and sharing your 

story with us today. 

TESTIMONY OF IVETTE RODRIGUEZ, WURTSBORO, NY 

Ms. RODRIGUEZ. Thank you. Chairman Cohen, Representative 

Franks, and distinguished Members of the Committee, thank you 

for the opportunity to appear before you today to discuss my brother’s service to this country, the events that led to his death, and 

the bill Congressman Hinchey introduced, which is named after 

him, the Carmelo Rodriguez Military Medical Accountability Act of 

2009. 

I am not someone with a big, fancy job, or political connections. 

I am just a loving sister and a mother of two, soon to be three, who 

lost her brother to a horrific case of medical negligence. I speak not 

just for my whole family, who miss my brother dearly, including 

his young son, Carmelo Rodriguez, IV, but I speak for the countless 

other military families who have been forced to confront similar situations. 

On November 16, 2007, when Carmelo passed away, I lost not 

only my brother but my best friend and an American hero. Carmelo 

was a decorated Marine and a platoon leader who proudly served 

his country in Iraq. Before, during, and after my brother’s service 

in Iraq, his cancer was repeatedly and extraordinarily 

misdiagnosed as a wart or a birthmark. 

In 1997, when Carmelo enrolled in the Marines, a physical performed by U.S. military staff concluded that Carmelo Rodriquez 

had melanoma present on his right buttocks. However, no action 

was taken. 

In March of 2000, Carmelo marked ‘‘no’’ on a medical history report question about cancer; he was not aware of his melanoma. 

During March of 2005, while Carmelo was deployed in Iraq, he saw 

another military doctor for a growth or sore on his buttock. He was 

told to keep it clean and visit the doctor again when he got back 

to the United States, which would be 5 months later. 

In November of 2005, Carmelo saw that same doctor back in the 

United States and was directed to dermatology to have the socalled birthmark removed for cosmetic purposes. The next year and 

several months later, in April of 2006, while several referrals were 

lost in the system, Carmelo’s so-called birthmark was bleeding and 

pussing all the time. 

Finally, out of frustration and concern for his own health, he 

took action and made an appointment to see a dermatologist without a referral. A week after his next appointment, he was told he 

had stage three malignant melanoma. 

117 

Carmelo had three surgeries, received radiation and chemotherapy, but it was too late. The cancer had spread to his lymph 

nodes, his liver, kidney, stomach, and throughout his body. 

The doctors told him that if it had been caught earlier, it would 

have made a big difference. It probably would have saved his life. 

My brother was a young, strong man. His body was reduced from 

190 pounds to under 80 pounds. At the age of 29, he died of skin 

cancer that should have been caught much, much earlier by the 

military he so ably served and was counting on. 

Carmelo wanted his story to be heard even if his life couldn’t be 

saved. He wanted to ensure that what happened to him would not 

happen to another servecemember. On November 16, 2007, with 

CBS news reporter Byron Pitts at our family’s home, my brother 

passed away. 

When he enlisted in the Marine Corps he swore an oath to live 

his life according to military standard, to follow orders without 

question. He did this willingly and without reservation. He proudly 

took this oath assuming that the military would care for his 

wellbeing. Those who were tasked by the military to provide that 

care were expected to provide the basic standard care. 

When the medical personnel failed to provide the basic care that 

would have saved my brother, they hid behind the military. Now 

that the military failed to live up to their oath, they hid behind a 

nearly 60-year-old precedent called the Feres Doctrine. 

Sadly, my family’s story is shared by many others. My question 

for the military is: Why, after such a critical failure in health care, 

did it take the military 16 months to finish this report, which I just 

got last night, on the investigation of the circumstances that led to 

my brother’s death? I received this report late last night, the night 

before this Committee’s hearing, which was not enough time to 

fully read it. 

Why would this not have been done sooner to perhaps save the 

lives of others who currently may be misdiagnosed right now? My 

question for Congress is: How could it be possible that of all Americans, members of the military and their families are left no recourse in the case of such medical negligence? 

I am grateful to Congressman Hinchey for his support. He has 

never wavered in his commitment to my brother, our family, and 

all service men and women. What service men and women and 

their families want and deserve is equal protection under the law. 

Thank you. 

[The prepared statement of Ms. Rodriguez follows:] 

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PREPARED STATEMENT OF IVETTE RODRIGUEZ


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Mr. COHEN. Thank you, Ms. Rodriguez. I appreciate your testimony. 

Our third witness is Mr. John Altenburg—Major John Altenburg, 

excuse me. Major General, excuse me for the third time. 

Major General Altenburg is a counsel at Greenberg Traurig, otherwise known as Diane Blagman’s firm, and focuses his practice on 

contract litigation and international law. The scope of his practice 

includes corporate and governmental representation, both domestic 

and international, including multilateral development bank and 

Federal agency debarment proceedings. 

General Altenburg served 28 years as a lawyer in the Army, 

where he represented the Army before Congress, numerous state 

and local governments, and in court in the United States and Germany. He advised, counseled, and negotiated all levels within the 

Army, the Department of Defense, the Department of Justice, frequently on matters of great interest to Members of Congress and 

the national media. 

Major General Altenburg, you are recognized. 

TESTIMONY OF JOHN D. ALTENBURG, JR., ESQ., MAJOR GENERAL (RETIRED), UNITED STATES ARMY, GREENBERG 

TRAURIG, LLP 

General ALTENBURG. Chairman Cohen, Representative Franks, 

other distinguished representatives, I thank you for inviting me to 

appear today. I appear solely by your invitation to provide my personal views regarding House of Representatives bill 1478, the 

Carmelo Rodriguez Military Medical Accountability Act of 2009. 

I have submitted a written statement and would like to supplement that with just a few comments. My knowledge of this tragic 

case is solely through media reports. I regret deeply that our Nation has lost such a talented and committed military man. Besides 

his outstanding performance as a Marine leader, I think he was 

the kind of man who was loved by all who met him. From what 

I can tell, his human qualities actually exceeded his extraordinary 

military values. 

I convey my deepest sympathy and condolences to the Rodriguez 

family. No Marine, sailor, soldier, or airman should ever go 

through the medical tragedy suffered by Staff Sergeant Rodriguez 

and his family, but I believe changing the law to permit more lawsuits is not a way to increase the accountability of military medicine. Further, I believe changing the law to permit more lawsuits 

is not in the best interest of our service members and the families 

who support them. 

The government, and especially the military, has programs and 

procedures in place to enforce medical standards and to improve 

military medical care—programs such as peer reviews, 

credentialing actions, quality assurance programs, reports to state 

licensing agencies, command investigations including I.G. inquiries 

and UCMJ actions. Lawsuits are contentious, and they take years 

to conclude, but lawsuits are not designed to prevent medical errors. 

The military’s internal systems and programs act more quickly. 

Congress, in fact, has oversight of these programs and systems and 

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ensures that quality assurance and other programs work effectively. 

The proposed bill creates a narrow category of persons in the 

military who will be favored over all others injured in the line of 

duty. This bill’s unfairness is starkly apparent when you consider 

the following example: two Marines, same unit, same hometown, 

deploy to Afghanistan leaving their families behind. 

During deployment, one Marine is medically evacuated to a hospital in Germany for severe stomach pains. They are properly diagnosed as a burst appendix, but a military doctor breaches the 

standard of care by failing to administer antibiotics properly. The 

Marine develops an infection and he dies. His family is outraged, 

and they are able to bring—under this bill, if it passes—a wrongful 

death action against the government to recover lost economic compensation and mental and physical pain and suffering. 

About the same time, though, tragic news arrives that the other 

Marine family in the same town has lost their loved one following 

an engagement in battle. A command investigation concludes that 

this Marine was killed, accidentally, by a fellow squad member in 

a fire fight. This Marine’s death is a result of negligence that may 

have been prevented. 

Like their neighbors who lost the Marine to medical negligence, 

this Marine family suffers damages. The family is grief-stricken; 

they are angered. They want to sue and hold the military accountable, but they cannot sue because their loved one died in combat. 

Unlike the first family, this family is told they are limited to the 

benefits provided by the Navy and the VA even though their loved 

one died on the battlefield and not in a hospital bed. Both Marines 

died in service, in line of duty, and both families suffer similar 

monetary hardships. But because of the proposed bill, one family 

could sue and the other can not. 

Whether the injury or death was caused by medical error, driver 

error, mechanic error, or otherwise, service members and their 

families suffer real emotional, physical, and monetary damage. Our 

brave service members and their families should not be forced to 

the courtrooms for needed benefits. If our compensation benefits 

are inadequate, then less increase the benefits to service members 

and their families, including consideration of pain and suffering. 

Also, consider how this bill could adversely affect military decision-making. This bill proposes to permit active duty military personnel to sue for any, ‘‘medical care and other purposes.’’ Virtually 

any military decision or action, based on a medical assessment, 

could be challenged as causing personal injury: flight status boards, 

medical evaluation boards, annual physicals, administrative separation proceedings, even medical determinations affecting medical 

profiles, duty limitations, airborne operations, special operations 

units, schools, and all manner of everyday military decision-making 

may be affected. 

Resources would be diverted from treatment of troops to preparing expert reports, submitting to interviews and depositions, 

and attending judicial and claims proceedings. Creating a special 

right to sue is not what will improve medical care and benefits. A 

service man won’t be forced to sue his country if the benefits are 

appropriate in the first place. A grateful Nation should take care 

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of all service members and all their families fairly, without subjecting them to litigation and the associated turmoil. 

Congress can act now to improve benefits for all those injured 

and killed, regardless of the cause. Such congressional action will 

be a most fitting legacy of Staff Sergeant Carmelo Rodriguez. 

Thank you for permitting me to print my views. I stand ready 

to address your questions. 

[The prepared statement of General Altenburg follows:] 

PREPARED STATEMENT OF JOHN D. ALTENBURG, JR. 


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Mr. COHEN. Thank you, General Altenburg. I appreciate your 

testimony. 

Our fourth witness is Eugene R. Fidell? 

Mr. FIDELL. Fidell. 

Mr. COHEN [continuing]. Fidell. Professor Fidell began teaching 

at Yale in 1993 as a visiting lecturer in law and was appointed the 

Florence Rogatz visiting lecturer in law in 2008, president of the 

National Institute of Military Justice and the counsel at Feldsman 

Tucker Leifer Fidell, in Washington, DC 

Professor Fidell is a coauthor of ‘‘Military Justice: Cases and Materials.’’ A fellow of the American Bar Foundation, a life member 

of the American Law Institute, and a member of the ABA Task 

Force on Treatment of Enemy Combatants and the board of directors of the International Society of Military Law and the Law of 

War. He has also taught at Harvard Law School and the Washington College of Law at American University. 

Mr. Fidell, you are recognized. We appreciate your testimony. 

TESTIMONY OF EUGENE R. FIDELL, ESQ., YALE LAW SCHOOL, 

NATIONAL INSTITUTE OF MILITARY JUSTICE, WASHINGTON, 

DC 

Mr. FIDELL. Thank you, Mr. Chairman, Mr. Ranking Member. 

I would like to begin with a word about the military medical providers. I think we can all be very proud of the overall quality of 

medical care that our military personnel receive. Many years ago 

I was a beneficiary of that medical care for the 3 years, 7 months, 

and 8 days that I served on active duty. 

I still vividly recall the dedicated providers who attended to my 

needs, which happily were modest. They were wonderful, caring 

human beings, excellent clinicians. 

The current generation of military medical personnel also deserves thanks, particularly given the stresses imposed by the heartbreaking cases they have had to deal with as a result of military 

operations in Iran—in Iraq and Afghanistan. Nonetheless, no system for delivering health care is perfect, and excellent as it is, the 

military health care system is not an exception. 

I agree emphatically with my friend, General Altenburg, that 

there are other modalities, mechanisms for ensuring the highest 

level of medical attention in the military. He has identified them 

properly. They have to do with peer review, credentialing issues, 

even disciplinary action under the UCMJ, on rare occasion. 

Personally, I don’t think that is why we are here. I think, although, you know, its impact on the quality of medical care is 

something that would be nice, what we are really talking about is 

compensation to people who have been injured. 

To clarify a question that came up in the colloquy between Representative King and Representative Hinchey, this is not about punitive damages, as I understand it. Punitive damages are not provided for under the Federal Tort Claims Act; nobody expects that. 

So that should not play a role in the Subcommittee’s or the full 

Committee’s consideration of these issues. 

What we are talking about, I believe, is pain and suffering types 

of damages, the hardcore civil damages in our society. I think it is 

quite critical that, as the Committee catches its breath and sorts 

147 

all this out, it bears fully in mind that we are in an all-volunteer 

environment, and have been for several decades now. 

I think legislators as well as people with responsibility in the executive branch have to take account of the potential impact of the 

legal environment on things like recruitment and retention. And 

we must make sure that people who come into the service, or are 

candidates for coming into the service, or are already in the service, have the assurance that they will be treated fairly. 

My view is, that in the year 2009, expectations in our society are 

that medical malpractice, the failure to observe the applicable 

standard of care ordinarily is compensated through at least pain 

and suffering type compensation. I haven’t seen a proposal that 

would expand the normal benefits system established either for the 

Department of Veterans’ Affairs, or for the active duty force 

through the military services that would in any way approach the 

kinds of pain and suffering compensation that all of us in this room 

would be entitled to if, God forbid, we were the victim of medical 

malpractice. 

I think that is what this is about. I do think it is something 

where Congress, after so many years, has a responsibility to grasp 

the nettle and, in my opinion, do the right thing, which is to pass 

either this measure or something very much like it. Is it perfect? 

No. Does it resolve all the inequities? No. 

We all strive for fairness, and being only human we will never 

achieve perfect fairness; nobody disagrees with that. But this is a 

step forward, and I hope that it will be favorably considered. 

[The prepared statement of Mr. Fidell follows:] 

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Mr. COHEN. Thank you, Mr. Fidell. 

We have now concluded our witnesses, and at this time we will 

have opportunities to ask questions of any member of the panel. 

Again, we are limited to 5 minutes, and I will begin. 

General Altenburg, you mentioned that you thought that there 

are distinctions in injuries in the military, that a person who might 

lose his leg, or her leg, in—or die in this military hospital, as you 

mentioned, in Germany, for some reason—stomach, I think, was 

your example—that they would get compensation, yet somebody 

who was killed through some negligence in the field would not. Is 

that true, I recall that correctly? 

General ALTENBURG. Well, what I said is, under the proposed 

legislation, the person who is injured by medical malpractice in the 

hospital in Germany could sue for compensation, and the soldier 

who died because of the negligence of a fellow Marine on the battlefield could not sue. Under the current law, both would be compensated and both families would be compensated, but they 

wouldn’t have the right to sue if they were killed on the battlefield. 

Under the proposed legislation, what changes is, the person who 

dies in the hospital due to medical malpractice, would be able—or 

alleged medical malpractice—would be able to sue. That is what is 

different. 

Mr. COHEN. Right. Do you see a distinction, though, in the circumstances upon which the physician who was operating in a similar capacity as a civilian doc would if he was operating on you or 

me or anybody else in a hospital and be subject to tort liability, and 

a soldier who was operating under combat? Aren’t there pretty 

clear distinctions in the judgment that might be rendered because 

of the extraneous existing circumstances? 

General ALTENBURG. Mr. Chairman, are we talking about the 

medical doctor in the military in Germany or in a combat zone? 

Mr. COHEN. The medical doctor in Germany, as distinguished 

from either a Corpsman in the combat zone or, in your circumstance, I think it was just a soldier who did something—I think 

in your testimony he got shot or something. 

General ALTENBURG. In my experience, a doctor—a major in the 

Army operating on a service man in Landstuhl Hospital Medical 

Center in Germany is under very similar conditions as a doctor in 

any hospital in the United States. 

Mr. COHEN. Okay. So why should they be treated differently for 

medical malpractice? Why should the—not they, but the victim be 

treated differently? Because they are in the military? 

General ALTENBURG. In the military they can’t sue. 

Mr. COHEN. Right. I know that. Why do you think that is correct? 

General ALTENBURG. Because they are compensated. If I go to 

a—if I am a civilian and I go to the hospital and a doctor malpractices on me, if I don’t sue them nothing happens; I don’t get 

anything. In the military, we have set up what some would argue 

is a fairly elaborate compensation system, and many, myself included, would argue it should be even better in the 21st century, 

but the fact is there is a compensation package that includes payments for children until they are 18, or 23 if they go to college, a 

$100,000 death benefit. 

155 

There are numerous pieces to this package that the Congress has 

developed over the years to justify not allowing them to sue and 

to preclude the lawsuits. It has been compared to workman’s compensation. And something that I have not heard anybody say in the 

discussion about Feres is that in those few places in the civilian 

sector where an employer provides medical care—not contracted 

out, but provides medical care, and I personally worked in a factory 

in Detroit where that was the case in the 1960’s; there was a hospital at the River Rouge Plant, and if I was treated there and I was 

malpracticed on, I couldn’t sue. I had to use workman’s compensation. It never happened, thankfully, but even in the civilian sector, 

if your medical care is provided by the employer, you have workman’s compensation; you cannot sue the doctor for malpractice. 

That is what we have done to our—for ourselves in the military. 

Mr. COHEN. Mr. Fidell, do you see a distinction there, and is the 

damages that a soldier would get now different from the damages 

he could—or she could—recover under this bill? 

Mr. FIDELL. Absolutely. I think there is a serious distinction. And 

by the way, one peculiarity that the Committee might want to be 

aware of is, the military retirement programs, for example, for people who are injured—benefits administered by the military are a 

function of your pay grade, so that a general, for example, who is 

the victim of malpractice and is injured—not killed, but injured— 

as a result of malpractice is going to achieve a higher form of compensation than the lance corporal. That is not a compensation 

scheme; it is something else. And that, I think, would rub many 

people the wrong way if they ever focused on it. 

Mr. COHEN. Thank you, sir. 

Ranking Member Franks? 

Mr. FRANKS. Thank you, Mr. Chairman. And Mr. Chairman, I 

was, as all of us, very, very moved by the video and by Ms. 

Rodriguez’s testimony. 

You know, there is a verse that says, ‘‘Greater love hath no man 

than this, that a man lay down his life for his friend.’’ And that 

is certainly what your brother did, and there is no more noble 

thing that a human being can do in this life than to try to put 

themselves in harm’s way for the sake of others and to promote the 

cause of human dignity and freedom. And I just don’t know how 

to express that enough, but I salute your brother with all of my 

heart. 

One of the challenges about having a military mechanism is that, 

you know, it is unique in just about every significant measure. 

Sometimes a general is compelled to deliberately put his soldiers 

in harm’s way for the sake of, perhaps, protecting a larger number 

of soldiers or protecting the country that they defend. And, you 

know, it is a unique situation. 

We don’t have to do that in the corporate world; we don’t have 

to order some of our workers to go out and face fire, and knowing 

that many of them will definitely be killed. That is an extremely 

difficult situation, and there is no way, I think, that any of us have 

the wisdom to be able to extricate every significant issue that 

arises in a situation like that. 

But I found myself identifying tremendously with General Altenburg’s remarks because he seemed, being a general, having been in 

156 

that situation, seems to understand some of the unique circumstances that apply here. And I do think that the example of a 

soldier in a battlefield situation that maybe died because of negligence on the part of his commanding officers—and I think that 

could be a circumstance that would occur—or even medical personnel, there is an issue there that I think is a conundrum that 

is very compelling in this particular legislation. 

And as a member of the Armed Services Committee, I believe 

that what is really wrong here with this system is that the compensation mechanism is out of whack. And I think that when someone like your brother, Ms. Rodriguez, does what they have done 

and faces that kind of what was negligence, that we should have 

written in these compensation schedules something to deal with 

that situation. And I would be certainly favorable in the Armed 

Services Committee to supporting to such a legislation. 

But I am convinced that to—I am convinced that the tort situation that we face in our civilian life right now has not garnered us 

better medical care; it has only created more confusion, and I 

think, actually, perhaps in some cases, reduced the quality of medical care. That is an opinion, and it is not in evidence. But I hope 

that we can address this situation with our compensation package, 

and then I hope that somehow that this legislation, if nothing else, 

leads us to a greater discussion along those lines. 

So with that, I think there are two issues here. One is the accountability of those who made the error, and of course the compensation that is mentioned. 

So, General, let me ask you, are there mechanisms now that are 

currently—within the military system—that hold physicians that 

commit medical malpractice accountable? Are there systems there 

to address that? And if you would consider any ways to improve 

that, what would they be? 

General ALTENBURG. Yes, sir. I will be happy to answer that 

question, although I am 7 years out of the military. I will do my 

best to recount what I recall from that time. Also, before someone 

counters, you know, any experience that my benefit me at this 

table or because I attained the rank of major general,—I spent 5 

years as an enlisted soldier, so I have that perspective of military 

medicine and military service, also, and I think, perhaps, that informs me in my opinions in this regard as much as anything. 

There are extensive—and I mention them all in my oral statement—review mechanisms and programs to ensure that military 

medicine is held accountable: reporting to state agencies, and the 

like. Ironically, because the Congress has oversight and requires us 

to report on any alleged medical malpractice in every military hospital, we know more about medical malpractice in our hospitals 

than we, as a country, know about medical malpractice in any 

other hospital, because most hospitals aren’t required to produce 

that information. But we are, in the military, because of congressional oversight. I am implying that as a good thing, not a bad 

thing. 

In addition, there are specific provisions of Title 10—if I were a 

professor I would cite them, but I am not, and I don’t remember 

them—but there are specific sections of Title 10 that require some 

of these programs. And over the years, especially since I have been 

157 

retired, I am aware, they have become even more stringent and 

more aggressive in their pursuit of ensuring that doctors are held 

accountable. Military doctors who commit malpractice, you know, 

are reported to the state agencies; they are in the same national 

database that tracks all medical malpractice. 

So in spite of this, and in spite of medical malpractice suits, 

there is malpractice every day in hospitals around the world. It 

happens. But I would tell you that the accountability procedures in 

the military are rigorous, and the Congress has direct access to 

those programs. 

Mr. FRANKS. Mr. Chairman, thank you very much. Might I just 

say, Mr. Chairman, that I do believe that the military and the 

American people have the responsibility to bind up the wounds of 

those who have borne the heat of the battle, and I thank the 

Rodriguez family for bearing the heat of the battle for human freedom. 

Mr. COHEN. Thank you, sir. 

Mr. Scott, from Virginia, is recognized, the distinguished Chairman of the Subcommittee on Crime, Terrorism, and Homeland Security. 

Mr. SCOTT. Thank you. Thank you very much, Mr. Chairman. 

While we are holding the physicians accountable, our focus in this 

hearing is really on the victim. We have heard a suggestion that 

this may discourage physicians from serving in the military. Is 

there any expectation that the physician would actually pay the 

cost of malpractice under the Tort Claims Act, Professor Fidell? 

Mr. FIDELL. The government winds up footing the bill. 

Mr. SCOTT. Is any physician—a Federal employee—when they 

are sued under these circumstances by civilians, not people in the 

military, barred under this Feres Act—Feres Doctrine—have physicians actually had to pay? 

Mr. FIDELL. No. I believe what happens, Congressman, is the 

Westfall Act, perhaps Steve Saltzburg could correct me on that, but 

I believe the Westfall Act basically substitutes the Federal Government for the individual employee or official whose conduct is at 

issue. 

Mr. SCOTT. So we don’t have to worry about the bill having an 

effect on physicians. Let me ask another question. I think, Mr. 

Fidell, you indicated that punitive damages are not allowed under 

the Federal Tort Claims Act. Is anybody—— 

Mr. FIDELL. That is my understanding. 

Mr. SCOTT. Does anybody—everybody agree with that? The 

record reflects that that—— 

Mr. SALTZBURG. I am not certain, Congressman, that that is true. 

Generally, state law provides the substantive law and the law on 

damages, and state laws that restrict damages restrict recoveries, 

I believe, under the Claims Act, as well, so that it is conceivable 

to me that in a given suit punitive damages could be available. I 

am not certain of that, either. 

Mr. SCOTT. Okay. Well, we will check that. It is my understanding that the Federal Tort Claims Act specifically excluded punitive damages. 

Mr. Altenburg, you indicated fairness to the victims. Could you 

explain why a soldier who was a victim of malpractice should have 

158 

less rights than a person convicted of crime, serving in prison, in 

terms of rights to compensation? The criminal would have—so long 

as this doctrine continues, the criminal would have more right to 

compensation than the soldier. Is that right? 

General ALTENBURG. Well, the criminal has the right to sue, and 

the soldier does not. 

Mr. SCOTT. Okay. 

General ALTENBURG. The difference, though, is that the soldier 

has a compensation package, which we could make even better, 

and we do that so that they won’t—— 

Mr. SCOTT. But the soldier will get the compensation whether he 

is a victim of malpractice or not. 

General ALTENBURG. He is compensated for any negligent act 

that harms him, whether it is the result of malpractice or some 

other type of negligence. 

Mr. SCOTT. You mean, he is entitled to medical treatment? 

General ALTENBURG. Correct. 

Mr. SCOTT. Okay. He does not get any compensation under the 

normal view of compensation in a negligence case for being the victim of malpractice? 

General ALTENBURG. I think that is probably true, but it is—— 

Mr. SCOTT. Whereas a prisoner would be able to receive compensation as a result of being a victim of malpractice. 

General ALTENBURG. A prisoner would be able to sue for compensation of some type. 

Mr. SCOTT. Okay. 

Mr. FIDELL. If I may, your colloquy raises a point that perhaps 

I could inject. There has been a lot of discussion about suing, heavy 

lawyering, and so forth. That is a separate conversation. However, 

I think it is quite important to bear in mind that the Federal Tort 

Claims Act has a mandatory administrative step that you have to 

exhaust before you can actually go into court. And most Federal 

Tort Claims Act claims are resolved administratively. 

Just so that we all have the same sheet music in front of us on 

that, the mere fact that you have a claim under the Federal Tort 

Claims Act does not mean that you and the government are condemned to appear before a Federal judge; in fact, you are going to 

be engaged for some period of time in a colloquy with the agency 

to try to resolve it amicably. And that is, in fact, what happens in, 

I believe, the vast majority of FTCA claims. 

Mr. SCOTT. Now, the law that you would recover under would be 

the state law, if it is—would it matter which state the prison was 

in, for example? One prisoner might get recovery under some circumstances and not in another? 

Mr. FIDELL. The FTCA is imperfect, and it does—as a reflection 

of our Federal system—local law. 

Mr. SCOTT. Now is there any reason why this—bill ought to be 

limited to medical malpractice—why a soldier off duty, sitting at a 

stoplight, gets rear-ended, why they couldn’t get compensation like 

every other automobile accident victim? 

Mr. SALTZBURG. Perhaps I could address that, Congressman. The 

American Bar Association’s position is that Feres ought to be rejected by Congress, that—Congress never ever adopted Feres. This 

is a judicial creation. In most other instances, when the courts read 

159 

a statute and put something in that Congress never included, Congress looks at it and isn’t very happy about it. But for 60 years, 

Congress has sat back and let the courts invent this doctrine and 

develop it. 

The testimony that I provided you indicates that there are a lot 

of people who have looked at the Federal Tort Claims Act and the 

exceptions that are there and said if you just applied the exceptions, you wouldn’t be interfering with military discipline or military decisions that are being made, but you would provide fundamental fairness to military personnel in a variety of settings, including all of those you have mentioned. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. COHEN. Thank you, Mr. Scott. 

Mr. Jordan, the gentleman from Ohio, is recognized—member of 

the great class of 2006. 

Mr. JORDAN. Thank you, Mr. Chairman. 

Ms. Rodriguez, let me, too, thank you and your family for being 

here. And we certainly feel terrible about the loss you have had to 

suffer, and we appreciate your brother’s service. While it is not the 

same as losing a family member, before politics I was assistant 

wrestling coach at Ohio State University, and we had a wonderful 

young man who wrestled for us, and unfortunately lost his—Major 

Ray Mendoza lost his life after doing three tours in Iraq. So we, 

again, appreciate the sacrifice of your brother. 

I want to go to this distinction that Congressman Hinchey is 

talking about where the difference in—kind of the example that the 

general brought up in his testimony, where the one individual is 

medical malpractice in the hospital versus the one from friendly 

fire. And I am always—Congressman Hinchey is confident that you 

can maintain this distinction, but I am always nervous about the 

slippery slope in a variety of areas. When politicians start down 

one road, it is not too long before we are moving to something else, 

and it is interesting—before this Committee I just came from going 

through a Stryker MEV, medical evacuation vehicle, they have out 

on the street here in front of Rayburn. 

And General, your thoughts on if we, in fact, pass this legislation, is it too far—is it not too big a step before the person providing treatment from a combat wound in that MEV, as they are 

moving that soldier from the combat area back to a safer place, if 

they do something wrong, if they don’t do exactly what needs to 

happen in that vehicle as they are treating that soldier, do you 

think that we can—we would ever see the day where that individual would, you know, be liable for some type of negligent treatment of the soldier resulting from, you know, treating them from 

a combat injury? Not friendly fire, per se, but, you know, legitimate—another combat injury. 

Your thoughts on that, because it always concerns me how we 

start down one road which seems to make sense, seems to be limited, seems to me we can maintain that distinction, but the unintended consequences of the slippery slope. 

General ALTENBURG. I think that is remotely possible. I don’t 

think it is quite the slippery slope that other issues could be. I 

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bat, and seems sincere about wanting to make sure that that is not 

a part of this. 

I think a potential that is latent in the proposed legislation is, 

how do you define combatant activities? What does that mean? I 

mean, Sergeant Rodriguez was diagnosed or misdiagnosed in a 

combat theater. Is that enough? It clearly wasn’t a combat wound. 

So you will get into all kinds of things like that—— 

Mr. JORDAN. That is sort of my point. The injury takes place in 

combat, but let us say they are back at the base hospital and, you 

know, the standard of care is such that it was definitely medical 

malpractice when they were trying to fix the wound and help this 

and treat this soldier. Do you think we run afoul there? Do you 

think there is a problem? 

General ALTENBURG. Well, obviously I support the Feres Doctrine 

because I think not to have it would truly create serious issues for 

the military in its day-in-and-day-out operations, and I don’t use 

the term ‘‘discipline’’ and ‘‘military order and discipline’’ as much 

as I think in terms of the mundane, really, day-in-and-day-out decisions that military leaders at all ranks, from sergeant first class all 

the way up to brigade commanders make and hospital commanders 

make in making this process. And I am concerned that ultimately 

combat readiness gets affected because of the types of decisions 

that are made. 

We take for granted, because we don’t know as much about what 

it is like on a day-in-and-day-out basis, and again, in my oral statement, which will be transcribed, I refer to all these different aspects of day-in-and-day-out military life that could be affected by 

lawyers who could allege medical malpractice. Whether they would 

be ultimately successful or not is really kind of beside the fact 

when you are looking systemically. The fact is, we would invest a 

lot of resources in trying to determine whether, in fact, it was medical malpractice and so forth. 

Mr. JORDAN. Right. Right. 

Mr. Saltzburg, I mean, your thoughts on the slippery slope? 

Again, just from my limited time here in Congress, I see, you know, 

we had a government say, ‘‘Well, we are going to work on making 

sure Fannie and Freddie don’t fail,’’ and then, ‘‘Oh, that is where 

we will stop,’’ and then the next thing you know it is AIG, next 

thing you know it is $700 billion, and here we are. So, the tendency 

of government to start with very limited intentions and then quickly move in a broader context is, you know, the history is pretty 

strong that it does that, so your thoughts? 

Mr. SALTZBURG. I actually think that it is always a good idea to 

worry about slippery slopes, and particularly in this context, because look at the last 60 years. The Feres Doctrine started out in 

what looked like it was going to be a narrow doctrine and it has 

flipped the other way, as you say, so it now covers virtually everything that military personnel end up being involved with. I think 

the choice of ‘‘combat operations’’ was an important one because of 

its avoidance of the use of the term ‘‘war,’’ which causes even more 

confusion. 

I would agree with General Altenburg. I think if you ask, ‘‘What 

are the odds that this will result in a problem?’’ I think remote is 

161 

probably the right answer. But if somebody said nonexistent, they 

would be lying to you. 

Mr. JORDAN. Okay. 

Mr. COHEN. Thank you, Mr. Jordan. 

Mr. JORDAN. Thank you, Mr. Chairman. 

Mr. COHEN. You are very welcome. 

Mr. King, you are recognized. 

Mr. KING. Thank you, Mr. Chairman. 

I do thank all the witnesses, and I wish to associate myself with 

the remarks by Mr. Jordan and Mr. Franks as well, especially with 

regard to the service of your brother, Ms. Rodriguez. And these stories play themselves out by the thousands and thousands across 

the history of this country, and we enjoy this freedom partly because of that, and I know how difficult it is to come forward and 

testify. 

But I also have a couple of questions that recur to me, and one 

is unresolved as I asked staff, and the diagnosis in 1997—the melanoma diagnosis—I understand it is part of a medical record, and 

I am curious about when did your brother learn about that diagnosis from 1997? I understand it wasn’t—at least we don’t know 

that he was told that in 1997, because he marked on the form in 

2000 that he didn’t have—he marked ‘‘no’’ on the medical history 

question about cancer. So when did he learn? 

Ms. RODRIGUEZ. After he found out he had malignant melanoma 

stage three, I contacted Congressman Hinchey, and I wanted to get 

his medical records. He couldn’t get his medical records himself, I 

don’t know why, but we got them through Congressman Hinchey, 

and that is when he found out. We were looking through them and 

it was there; he never saw it before. 

Also, in 2003 he had another physical in Florida; it said the same 

exact thing, and he never was aware of it. 

Mr. KING. Okay. And were there lab reports from the 1997 and 

the 2003—— 

Ms. RODRIGUEZ. Yes. 

Mr. KING. So they took a test; they got the diagnosis. 

Ms. RODRIGUEZ. I am not sure if they took a test, but it was on 

a document, dated, with a checkmark in ‘‘right buttock melanoma.’’ 

Mr. KING. I am just going to ask that we search out that information, if there was tests. And I don’t want to be difficult with you, 

I just—I don’t disagree with what you said here at all, but as I 

bring up that subject—as I bring up that subject the—I know you 

have listened to General Altenburg’s testimony too, and I wonder 

if you have anything you would like to say into the record about 

your response to General Altenburg’s testimony. 

Ms. RODRIGUEZ. I do have a lot of—not only on his statement— 

I hear a lot of suing and families getting monies, and that is not 

why my family is here. We are here for the military to be accountable. 

Every day my brother is not here with us, and to know that 

someone is not accountable for what happened and is still continuing working and going about with his family, and going about 

their life, it hurts. And nothing is being done. 

There is a lot—we are not the only family; there are other families. 

162 

Mr. KING. Could I summarize in that, you have a strong sense 

of correcting an injustice? 

Ms. RODRIGUEZ. Just correcting it. That is what he wanted. He 

wanted this; he began this. 

Mr. KING. Thank you, Ms. Rodriguez. I appreciate it. 

I think the clock is ticking quickly, but I think we need to go 

back to Mr. Fidell, and when you spoke about the wrongful death 

compensation in civilian tort claims—the wrongful death compensation in civilian tort claims and—or, excuse me, in military 

claims, that are proportional to rank, and that, of course, is proportional, then, to the income-earning capability of that individual. 

Isn’t that also reflective in civilian courts? 

Mr. FIDELL [continuing]. Wrongful death. Not for wrongful death. 

What I was talking about was military retirement disability. 

Mr. KING. Okay. The right of retirement disability, and then you 

testified that you believe there would be people that would object 

to that formula, to that type of compensation? 

Mr. FIDELL. Yes, I think distinguishing on the basis of pay grade, 

when compensating people who are put on the permanent disability 

retired list, for example, would startle many Americans. 

Mr. KING. And then, but would you agree that that also is the 

system in the wrongful death circumstances in civilian tort 

claims—the income-earning capability of that individual is calculated in a similar manner? 

Mr. FIDELL. Yes, but pain and suffering is not. 

Mr. KING. I just thought it was important to make that clarification, and I also appreciate you making a clarification on my earlier 

inquiry of Mr. Hinchey. I would like to just offer the balance of the 

response to General Altenburg. 

General ALTENBURG. I am not familiar with the military retirement disability, that is to say, when the military considers you disabled and they pay something. But I am familiar, thoroughly, with 

VA disability retirement, and you are paid the same whether you 

are a four-star general or a PFC; it is based on the percentage of 

disability, period. 

Now, Mr. Fidell may be talking about the less often used retirement disability of the military system, but, I mean, I am a disabled 

veteran, and I know what I get, and I get the same thing that 

someone who has the same disability gets regardless of their rank 

or years of service. 

Mr. FIDELL. I am, in fact, talking about the people who are retired under Title 10 who are found not fit for duty. That is a different economic exercise from the programs administered by the 

Department of Veterans’ Affairs, and it is the active duty retirements that I thought the colloquy concerned. 

Mr. KING. I thank all the witnesses, and I think we have got 

clarification on at least three points here, and I appreciate that. 

And Mr. Chairman, I would yield back the balance of my time. 

Mr. COHEN. Thank you, Mr. King. 

I would now like to recognize the distinguished Member from the 

25th district of New York, Mr. Maffei. 

Mr. MAFFEI. Thank you, Mr. Chairman. 

I just want to—I will start with Mr. Fidell—I just wanted to 

ask—again, I am trying to figure out, would this situation have 

163 

been any different if Sergeant Rodriguez were a reservist or National Guardsman as opposed to regular, you know, regular military. 

Mr. FIDELL. Well, if the individual was on Title 10 status there 

would be no difference. In other words, a National Guardsman or 

Air National Guard, or a classic weekend warrior reservist, if the 

person was on extended active duty, the legal regime would be precisely the same as was involved in the particular case that has 

brought us all here today. 

Mr. MAFFEI. What would happen if this was a dependent of a 

military person and stationed someplace? They often do see military physicians—— 

Mr. FIDELL. Absolutely, and they have every right, under the 

Federal Tort Claims Act, to file a claim. It would be administratively examined in the first instance, and if they are unable to 

reach an agreement with the service, then they have the right to 

go into Federal district court. 

Mr. MAFFEI. Okay. 

Mrs. Rodriguez, I want to thank you for both your husband’s 

service and your service to our country and for being here today. 

I just want to ask you, Sergeant Rodriguez, I mean, he was a very 

good NCO, and what was his—clearly he must have known that 

the military was saying that this would have some sort of effect on 

discipline, et cetera. Did he share with you any of his thoughts on 

that, I mean, being such a loyal soldier? 

Ms. RODRIGUEZ. Did you say disciplinary? 

Mr. MAFFEI. No, no. The counter-argument, that he knew that a 

lot of officers were against this, and he was accustomed to obeying 

the orders of officers, why did he feel differently? Why did he disagree? Why did he feel that this is an example of a thing that he 

should have been able to seek restitution on? 

Ms. RODRIGUEZ. I don’t think he—he never sought out restitution. 

Mr. MAFFEI. Or just even the ability to sort of make light of it? 

Ms. RODRIGUEZ. Make light of it—— 

Mr. MAFFEI. I mean, what do you think he would think of this 

hearing? Let me ask you that. 

Ms. RODRIGUEZ. What would he think—— 

Mr. MAFFEI. Of this hearing, yes. 

Ms. RODRIGUEZ. Oh, he would think that this is wonderful. I 

mean, we have come here so quickly, and we are very grateful, 

and—— 

Mr. MAFFEI. Good. Thank you very much. 

General Altenburg, I am just curious as to, you know, how—I 

know we have sort of gone around this before, but given that a civilian, even a military dependent, how do we sort of—how do we 

explain kind of the double standard here? Let me ask you this, let 

me ask you this, because we have already covered that. Is there 

anything that you could think of that we could do that would, you 

know, help give our men and women in the service some sort of a 

sense that they can at least change the behavior of physicians— 

military physicians, or something like that—if something happens, 

so that even if they can’t, you know, sue in the traditional sense, 

that they could make sure it doesn’t happen again? 

164 

General ALTENBURG. Well, I think if military members knew how 

many procedures there are and how many programs there are to 

review military medicine, then they ought to understand that there 

is a way of holding people accountable. Quite frankly, the privacy 

interests of doctors is what precludes more knowledge being out 

there among the forces of knowing exactly what happened to somebody. 

If you report someone to the national database or they can’t practice medicine anymore, their personal privacy interests preclude 

people from sharing that information. The military can’t publicize 

that they have taken a doctor out, that he is not practicing medicine anymore. 

I don’t know if that is the case with the particular doctor that 

misdiagnosed Staff Sergeant Rodriguez. I simply don’t know; I 

don’t have any knowledge of that. But it is possible that his career 

has been terminated, and he is out there digging ditches somewhere. 

Mr. MAFFEI. But you think there is at least sufficient incentive 

in place that this wouldn’t happen, even though lawsuits are not 

allowed in this case? 

General ALTENBURG. Well, sir, I believe there is, or soldiers 

would be not coming in as much as they are being recruited, and 

they would be leery of going to military doctors, and I don’t find 

that to be the case. 

Mr. MAFFEI. You don’t think it is just their sense of patriotism 

makes them feel that—— 

General ALTENBURG. Oh, clearly that has something—what I am 

saying, a sense that the medical system won’t take care of them is 

not enough to—if there is that sense, it is not enough to outweigh 

their patriotism. That is certainly true. 

Mr. MAFFEI. Thank you very much. My time is up. 

Thank you, Mr. Chairman. 

Mr. COHEN. You are welcome. 

We will have a second round, if necessary, and I would like to 

ask Mr. Fidell, you wanted to follow up, and I ask you to do so. 

Mr. FIDELL. This thought has occurred to me: If I were a Member 

of this Subcommittee, I would be interested in knowing, actually, 

what was on the other side of the looking glass, in terms of disciplinary action, peer review action, credentialing action. General Altenburg is correct, there are privacy interests at play here, although the service has the discretion to disclose disciplinary action. 

Credentialing may be a different kind of issue, but in any event, 

it seems to me the Committee would want to know, as you exercise 

your legislative function, what did happen here. 

Mr. COHEN. I think that is a very good question. If staff could 

inquire I would like to know the answer. I suspect if we had tort 

law and the physician was sued, that he would start to examine 

people’s dermatological problems on their posteriors—he would 

make that a priority. 

Mr. FIDELL. I will say this: I have represented military providers, 

medical providers of every description, and they take this stuff very 

seriously. I don’t think we should be casual about this; this is a 

real serious thing. You are talking about people’s licenses, their 

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pense to become physicians or other specialists, so this is a real serious business—— 

Mr. COHEN. Thank you. We will follow up; staff will follow up, 

and I want you to know the Chair is disappointed that it was the 

minority that asked the Department of Defense to come. I am disappointed they didn’t come, and they might not have come for— 

they didn’t want to disclose whatever happened. But they should 

have been here, and I think it is a disgrace they weren’t here when 

they were asked to testify on such a subject. 

Ms. Rodriguez, your brother—did he leave behind any dependent 

children? 

Ms. RODRIGUEZ. Yes, he has a son, Carmelo. 

Mr. COHEN. And do you know if he received any benefits from 

the Federal Government as a result of your brother’s death? 

Ms. RODRIGUEZ. Yes, he does. 

Mr. COHEN. And do you know the value of those benefits? 

Ms. RODRIGUEZ. I believe it is $1,500 monthly. 

Mr. COHEN. $1500 a month. 

Ms. RODRIGUEZ. Yes. 

Mr. COHEN. Does Mr. Fidell or anybody else know, maybe General Altenburg, would it have been different if he would have been 

a general? 

General ALTENBURG. I don’t know the answer to that. 

Mr. COHEN. Mr. Fidell, do you know? 

Mr. FIDELL. Not off the top of my head, no, sir. 

Mr. COHEN. You suspect it would have been different if he was 

a general? 

Mr. FIDELL. I am not going to go there without—I am kind of—— 

Mr. COHEN. Mr. Saltzburg, anything you want to follow up on? 

Mr. SALTZBURG. I did want to—there is a point, I think, that we 

haven’t made, and it actually relates to what Congressman King 

asked in a few questions earlier, and I thought the Committee 

probably ought to think about a couple of these things. One of them 

is, would changing this doctrine reduce the number of doctors willing to serve in the military? I think the answer to that is no, because the doctors aren’t personally liable; in fact, they have an insulation that they don’t have in private life. 

The second issue is whether you need a right to sue. I want to 

respond to General Altenburg on this—without deprecating in any 

way peer review, discipline, even the opportunity to bring a court 

martial proceeding against a doctor. The fact of the matter is if you 

believe that the 50 states have a pretty good idea of what they 

ought to be doing with respect to medical malpractice, there isn’t 

a single one that basically says if you end up with peer review and 

you claim discipline, that we should completely do away with the 

right to sue—nobody has to sue, but the right to sue—and the reason is that each patient becomes a kind of a private attorney general. 

There is not an incentive out there—and despite what anybody 

thinks, there is no incentive for doctors to run around trying to 

catch their brothers and sisters in the profession in malpractice. If 

anything the incentive goes the other way, which is, ‘‘There, but for 

the grace of God, go I,’’ and therefore, when in doubt, don’t make 

an accusation. It is the patient and the patient’s family—and Ms. 

166 

Rodriguez is sitting here—they have a true stake, and they identify 

things that often people who are busy and have other issues, that 

they are unwilling to confront. 

There is a basic point here, I think. If Sergeant Rodriguez were 

here and he were asked the question the congressman asked about 

what would he say about why it is important to be able to sue and 

why the right should be there and why justice requires it, it is because one of the things that every soldier who enlists in the military should be entitled to is to know that when they are sent to 

a hospital, and when they are sent to a doctor, they will get at 

least as good care as they would get if they weren’t serving their 

country and putting themselves in harm’s way. One of the mechanisms that every single jurisdiction except the military has to ensure that care is the right to bring a lawsuit for malpractice. 

And as Gene Fidell has said to you, under the Federal Tort 

Claims Act, it is a much more efficient process than most of the 

states have. If you do change Feres, you don’t need to assume that 

there are going to be X number of Federal lawsuits; you can assume there will be more claims brought, and probably most settled 

without a lawsuit ever being brought. 

Mr. COHEN. Thank you, Mr. Saltzburg. Let me ask you this: You 

mentioned private attorney generals, and sometimes we think of 

lawyers who bring tort actions as being private attorney generals. 

Do you know of any statistics that Mr. King asked about that 

would show that tort actions do improve health care? 

Mr. SALTZBURG. If you were to look at the literature, you would 

find that there are studies that support virtually any opinion that 

anyone would care to offer, and it is largely because there are interest groups that fund a lot of these studies. The—— 

Mr. COHEN. So your answer is yes, but it is also statisticians— 

damned statisticians, the liars. 

Mr. SALTZBURG. The case has been made—I say made, and argued, I should have said—the case has been argued that medical 

malpractice lawsuits drive up medical insurance, tend to make people less wanting to be doctors, and don’t improve the quality of 

medical care. And the counter case has been that, in fact, insurance costs hardly are affected by medical malpractices; they are 

much more affected by investment policies of insurance companies. 

We have no shortage of people applying to medical school wanting 

to be doctors, and private litigation at least has done this: It has 

put a lot of doctors that have committed malpractice on the list 

that identifies them as people who have committed malpractice, 

and they might not have been there without the private suits. But 

no one, I think, can cite you one study that would say, ‘‘This is the 

answer. This is how much benefit you get from litigation.’’ 

Mr. COHEN. Thank you, sir. And I am going to allow myself one 

last question, because we went from green to red, which was unusual—mistake in our system. 

Either Mr. Saltzburg or Mr. Fidell, are there statutes that you 

are aware of that permit service members to sue the government? 

Mr. FIDELL. Oh, absolutely, and although the government may 

not be happy about this, G.I.s do, from time to time, sue the government. For example, a G.I. can sue for a violation of the Privacy 

Act. It happens; they are hard lawsuits. 

167 

A G.I. can sue the government, for example, to overturn a decision of one of the boards for correction of military records. That 

happens with some regularity, in this judicial district, particularly. 

So there are certainly situations where G.I.s are in court and the 

government is on the other side. There is nothing particularly disturbing about that. I think if you didn’t have that, people would be 

up in arms. 

Mr. COHEN. Mr. Saltzburg, do you have anything to add? 

Mr. SALTZBURG. I agree with that, but let me see if my friend, 

Gene, agrees with me on one thing. If Sergeant Rodriguez had been 

on leave from Iraq, and he had been back in New York, and he was 

driving his car and he was run into by a military doctor, he would 

have been able to sue the military doctor without any limitation 

due to Feres, wouldn’t you agree? 

Mr. FIDELL. Just a fortuity that one—yes—— 

Mr. SALTZBURG. And the doctor, in that case, would be facing, 

you know, personal liability. I mean, Feres goes so far, if he is on 

his base in Iraq and he gets in a vehicle, and a military doctor is 

drunk and drives his vehicle into Sergeant Rodriguez, this isn’t 

medical malpractice, but he can’t sue. I mean, that is the problem 

with this Feres Doctrine, which is, it does make our military personnel second-class citizens when it comes to using the tort system 

to try and assure that they will be treated fairly. 

Mr. COHEN. And General Altenburg, knowing that there—and I 

presume you knew as well—that there are statutes that allow the 

military to sue in these circumstances even from their employment, 

that doesn’t interfere with military discipline. These are distinctions where military can sue, and those distinctions do or do not 

bother you? 

General ALTENBURG. Are you talking about the distinction in the 

case of torts? 

Mr. COHEN. Yes, sir. Or non-torts, for that matter. 

General ALTENBURG. Well, just so they can be a party plaintiff 

and sue their military superiors. I believe that tort litigation, 

where the facts indicate incident to service, can be and usually are 

disruptive to the efficiency of the service, because of the unique nature of the mission and the training that goes with it. 

Mr. COHEN. Thank you, sir. 

Mr. King, do you have any further questions? 

Mr. KING. Thank you, Mr. Chairman. I had a few things that 

arose to my mind as I listened to your questions, and I was listening to Mr. Saltzburg, whom I consider to be a very objective witness, and you have endeavored to inform this panel each time you 

have spoken. This question occurs to me, though, and that would 

be off of, I believe, a statement you made that if this proposal, this 

bill that we are discussing, Mr. Hinchey’s bill, if it doesn’t discourage doctors from entering and training in the military—if it doesn’t 

discourage them, then the system that would evolve from it or 

would emanate from it—how can it then provide for accountability? 

What is the check on accountability—if it is not a discouragement to doctors, then where does accountability manifest itself 

under this bill? 

Mr. SALTZBURG. I am not a doctor, but I am old enough now that 

I happen to deal with a lot of them, and they do talk about litigaVerDate Aug 31 2005 16:18 Jun 02, 2009 Jkt 000000 PO 00000 Frm 00171 Fmt 6633 Sfmt 6601 H:\WORK\COMM\032409\48232.000 HJUD1 PsN: 48232
168 

tion, their concerns about insurance and things like that, and the 

answer, I think, Congressman, is this: That people thinking about 

being doctors and who are doctors are worried about several things. 

They are worried about whether they are going to be sued, whether 

they are going to be personally liable, and whether their right to 

practice medicine is going to be adversely affected. 

Now, in a perfect system, if they commit malpractice they should 

be on a list that identifies them as having committed malpractice, 

which does adversely affect them. But all things being equal, the 

doctor who chooses the military knows that he probably—or she 

probably—will never be personally liable. So the real fear is of an 

extraordinary adverse event that exceeds your insurance and exposes whatever assets you have to somebody’s recovery, that will 

never happen in the military. 

As for the question, well, how do you get accountability? Everyone, I think, on the panel agrees that accountability is important, 

that all of the devices, whether it is peer review or discipline or a 

suit, are all designed to identify that doctor who commits malpractice. The reality is, that doctor shouldn’t and can’t expect to escape responsibility for malpractice. What they can escape is being 

personally responsible, and that is what the military does—it protects them. 

Mr. KING. Would a doctor that would move from private practice 

into the military, he would escape malpractice premiums and the 

threat of malpractice? If I follow your thought through, then the 

next question that flows to me is, would there be civilian doctors 

that would seek to go into the military for the protection that 

would exist? 

Mr. SALTZBURG. My experience has been that the civilian doctors 

who are willing to go into the military do it not to escape—they 

really don’t do it to escape liability; they do it out of sense of public 

service. 

Mr. KING. Would you agree that the incentive would exist? 

Mr. SALTZBURG. I do. 

Mr. KING. And also, I just want to reiterate your testimony that 

the data says yes and no on these questions, and I appreciate that. 

And I wanted to give General Altenburg an opportunity to respond to that, because I may have left something hanging in the 

air here that needs to be cleared up. 

General ALTENBURG. With regard to accountability? 

Mr. KING. Yes. How can there be accountability that is provided 

if the doctors are shielded from liability that are in the military, 

then how does accountability emerge from this legislation? That 

seems to be the thrust of this legislation, is the accountability rather than the compensation. 

General ALTENBURG. Yes, sir. And I think that—well, first of all, 

in the civilian sector, besides the peer review and so forth, all they 

really have is lawsuits, you know, for accountability, and as Steve 

said, it is up in the air as to whether that really does reduce medical malpractice or not. 

In the military, besides all these systems, and I would tell you 

that there are more systems and more procedures simply because 

we are getting more oversight from you gentlemen and women, and 

because our culture is all about accountability, more so than any 

169 

segment of our society. And we have more tools available, in terms 

of administrative actions outside the medical discipline itself, and 

discipline and administrative procedures, and literally really kicking people out of the ability to practice medicine and force them out 

of the service, I think we have more capability than the civilian 

sector does. 

Mr. KING. General, you referenced Landstuhl, and I, like you, 

have spent a little time there, mine very briefly, but it occurs to 

me that there was a Major Langvine, I recall, who took care of the 

logistics of the transfer of patients to the tarmac to be brought 

back here to Andrews and Walter Reed, and Bethesda, sometimes, 

in Texas, and I remember that at that time that he had delivered 

this information to me, that they had transferred 39,000 patients 

from Landstuhl to the United States, lost only one, and that was 

an unrelated heart attack, rather than to an injury, and that occurs to me as you testify. 

I would ask you if there has ever been a military in the history 

of the world that delivered such first-class health care to all of its 

people on balance. Has there ever been anyone that would rival 

what has been accomplished by the United States of America in 

this recent conflict? 

General ALTENBURG. I share your enthusiasm for our medicine, 

and I am just reluctant to compare ourselves to everybody in the 

world. I wouldn’t doubt that that is true, and I will say personally, 

I am very proud of military medicine. It is extraordinary what 

these people do—the medical care people—in the military, and we 

have seen some distractions in the last few years that actually 

have nothing to do with acute medical care, but had to do with caring for people as they were in a different kind of status, and it may 

very well be the best. I can’t imagine a military medicine system 

that is better than ours. 

Mr. KING. I am happy for that to be the last word. I thank all 

the witnesses, and especially Ms. Rodriguez, for coming forward in 

a difficult time, and I yield back the balance of my time, Mr. Chairman. 

Mr. COHEN. Thank you, Mr. King. 

I would like to thank the Members who participated today, and 

all the witnesses who participated with their testimony, particularly Ms. Rodriguez and on behalf of the family. Without objection, 

Members will have 5 legislative days to submit additional questions, which will be submitted to the panelists, and we hope that 

you would then respond to those; they will be made a part of the 

record. Without objection, the record will remain open for 5 days 

for submission of any additional materials the Members might 

want to submit. 

Again, I thank everybody for their time and their patience. 

This hearing of the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 4:16 p.m., the Subcommittee was adjourned.] 

(171) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

The Supreme Court’s long-standing ‘‘Feres doctrine’’ denies members of our armed 

forces the right to sue the government that Congress gave all Americans when it 

enacted the Federal Tort Claims Act. 

Our issue at today’s hearing is whether Congress should allow this doctrine to 

continue denying service members the right to sue under the Act when they are 

killed or injured as a result of medical malpractice while serving our country. 

Let me offer three initial comments on that issue: 

First, Feres was wrongly decided. The Federal Tort Claims Act does not exclude 

service members from its coverage. It excludes only claims ‘‘arising out of the combatant activity’’ of service members ‘‘during time of war.’’ 

That exemption, as Justice Scalia has explained, shows that Congress ‘‘quite 

plainly excluded’’ the blanket exemption for service members recognized in Feres. 

Second, it is too late to expect that the Supreme Court will overrule Feres. The 

restoration of the rights conferred on service members by the Federal Tort Claims 

Act can only come from Congress. 

Third, none of the arguments supporting Feres have ever struck me as persuasive. 

The main argument is that lawsuits by service members will interfere with ‘‘military discipline.’’ I hope our witnesses will address whether medical malpractice 

suits, in particular, will have that effect. 

They should keep in mind that the legislation before us specifically excludes medical malpractice claims when they ‘‘arise out of the combatant activities of the 

Armed Forces during time of armed conflict.’’ 

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RESPONSE TO POST-HEARING QUESTIONS FROM STEPHEN A. SALTZBURG, PROFESSOR, 

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, DC 


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RESPONSE TO POST-HEARING QUESTIONS FROM JOHN D. ALTENBURG, JR., ESQ., 

MAJOR GENERAL (RETIRED), UNITED STATES ARMY, GREENBERG TRAURIG, LLP 


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RESPONSE TO POST-HEARING QUESTIONS FROM EUGENE R. FIDELL, ESQ., YALE LAW

SCHOOL, NATIONAL INSTITUTE OF MILITARY JUSTICE, WASHINGTON, DC 


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LETTER FROM STEPHEN A. SALTZBURG, PROFESSOR, THE GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL, WASHINGTON, DC 

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LETTER FROM ADELE CONNELL, PH.D., COLONEL, UNITED STATES ARMY


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LETTER FROM ALEXIS WITT


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LETTER FROM L. RICHARD FRIED, JR., ESQ., 

CRONIN, FRIED, SEKIYA, KEKINA & FAIRBANKS

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LETTER FROM BARB CRAGNOTTI, VERPA CHAIR/LEGISLATIVE COORDINATOR


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