The House voted overwhelmingly yesterday to allow active-duty military personnel to sue the government for medical and dental malpractice in service hospitals, which have been criticized the past several years for inept care and cases of incompetence.
The 312-to-61 vote, over strong objections from the Defense Department, sent the bill to the Senate where it was bottled up in the last Congress by then-Judiciary Committee Chairman Strom Thurmond (R-S.C.). A spokesman for Sen. Jim Sasser (D-Tenn.), the chief Senate sponsor, said the legislation's chances are uncertain this year.
An amendment was attached in the House limiting each suit to $300,000, but the bill's House sponsor, Rep. Barney Frank (D-Mass.), said yesterday that the limit would not be a major problem because such suits would continue to be covered by the Federal Tort Claims Act, which rules out punitive damages. The bill also makes clear that only physical injury, not emotional or psychological injury unless caused by a physical injury, will be subject to lawsuits.
Frank said the administration lobbied harder this year against the bill than in 1985, when it passed the House, 317 to 90, but died in the Senate.
"The people in the Reagan Justice Department don't think anybody should ever be able to sue anybody," Frank said.
The legislation applies to all full-time military personnel, including the Coast Guard and National Guard units on full-time duty, who are treated in a military "fixed medical treatment facility." This would not include combat zone stations, hospital ships or field hospitals.
Full-time military personnel account for about one-third of the patients in service hospitals. The remainder are mostly dependents, who are allowed to sue under current law.
The legislation grew out of congressional hearings and newspaper articles in 1985 documenting numerous cases of medical incompetence in military hospitals and the suffering of those who could not sue for malpractice.
The 1950 Supreme Court ruling that prevented military personnel from filing suit grew from three cases, two medical malpractice and one a bizarre case in which a towel was found in the stomach of a soldier operated on 18 months earlier. The towel was 30 inches by 18 inches and marked "Medical Department U.S. Army."
The court ruled in Feres v. United States that the Federal Tort Claims Act of 1946 does not allow active-duty military personnel to sue for any government action or inaction. The Tort Claims Act allows suits against the United States with certain exceptions, including combat. The court ruling expanded the act to cover active-duty military personnel in all situations although this was never spelled out in the act.
The ruling was not seriously challenged judicially or legislatively for almost 25 years, until malpractice stories were highlighted in the news media.
This year's effort to pass the legislation has encountered a minor problem in the Senate -- the bill was referred to the Armed Services Committee instead of the Judiciary Committee. A Sasser spokesman said this was apparently a mistake and Sasser is working to have the bill re-referred to the Judiciary Committee, now controlled by Democrats and presumably more sympathetic to the bill.
"We are hopeful that it will have a chance this year -- modestly hopeful, moderately hopeful," the Sasser spokesman said.