Forty years ago, more or less, bad things happened to Rudolph Feres, Arthur Jefferson and Dudley Griggs. All of them were in the Army. Feres died in a barracks fire at Pine Camp, N.Y. Jefferson went through an abdominal operation flawed by serious malpractice. Griggs died for want of proper treatment by Army surgeons.
All three figured in lawsuits brought at the time against the U.S. government. The suits sought damages above and beyond the compensation given them under federal law. The question was whether the Federal Tort Claims Act of 1946 (FTCA) permitted servicemen to sue the government. Speaking for a unanimous Supreme Court in 1950, Justice Robert Jackson ruled that military personnel may not bring suit for injuries that ''arise out of or are in the course of activity incident to service.'' This is the ''Feres doctrine.''
With few exceptions, the Supreme Court has adhered to Jackson's reasoning ever since. Now the Feres doctrine is under double attack. It barely survived this past term of the Supreme Court; dissenting in a 5-4 case in May, Justice Antonin Scalia termed the Feres rule ''clearly wrong.'' And in the House of Representatives, Rep. Barney Frank of Massachusetts has introduced a bill to permit men and women in the armed forces to sue for malpractice by service doctors.
The Justice Department opposes Frank's bill, but the measure strikes me as altogether fair. The armed services have attracted some first-rate physicians; the level of medical care, on the whole, is regarded as reasonably high. But the armed services also have attracted some second-rate doctors who couldn't hack it in civilian practice. There is no valid reason -- at least none that I can see -- why a soldier or sailor who suffers from botched surgery should not be able to sue as civilians can sue.
Justice Jackson himself seemed a little uncertain in his 1950 opinion. He found no legislative record to guide the court. ''If we misinterpret the act,'' he remarked, ''at least Congress possesses a ready remedy.'' The ambiguous language of the FTCA sought to make the government liable ''in the same manner and to the same extent as a private individual under like circumstances.''
Jackson reasoned that no ''private individual'' could be legally analogous to a soldier in the Army, for no one has power to mobilize a private army. Besides, said Jackson, the law ''makes no sense'' if it results in suits brought by military personnel, subject to frequent transfers, under the applicable tort law of the state in which the injury occurs. Anyhow, he noted, the government maintains a system of compensation that is fair and efficient. Military discipline would suffer if troops could sue their officers for wrongful acts.
To Justices Scalia, Stevens, Brennan and Marshall, this reasoning is specious. They are ready to junk the Feres doctrine, or at least to poke holes in the rule that would give men and women in service a better break. That is Frank's idea also.
Go back to the case of Arthur Jefferson. Eight months after his operation at an Army hospital in Maryland, Jefferson had to have a second operation. To their surprise and chagrin, surgeons found in his stomach ''a towel 30 inches long by 18 inches wide, marked 'Medical Department, U.S. Army.'''
Jefferson received lump-sum compensation of $3,645 at the time. The court estimated that, given his life expectancy, he would receive installments totaling $32,000 before his death. It wasn't much. Frank's bill would let malpractice plaintiffs go to court under FTCA.
Frank's bill would not address the indefensible damage inflicted by the Army upon Master Sgt. James B. Stanley. He was one of a thousand soldiers, you may recall, who in 1958 were gulled into experiments, without their consent, to determine the effect of LSD on humans. Neither would it help the widow of Lt. Cmdr. Horton Winfield Johnson, a Coast Guard helicopter pilot who died, it is alleged, when FAA controllers erred in supervising a rescue flight in Hawaii. The Supreme Court applied the Feres doctrine to both cases this past term.
Something is sorely wrong here. The original Feres plaintiffs of 1950 suffered damages that had little to do with the peculiar circumstances of military service. A defective furnace led to Feres' death. Incompetent surgery figured in the other two cases. The Congressional Budget Office estimates that Frank's bill would cost the taxpayers no more than $25 million in FTCA damages a year. It would be money fairly spent.