The Carmelo Rodriguez Military Medical Accountability Act of 2009: An Opportunity to Overturn the Feres Doctrine as It Applies to Military Medical Malpractice
Wiltberger, Kenneth R., Ave Maria Law Review
When Carmelo Rodriguez joined the United States Marine Corps in 1997, he underwent a routine physical where military medical staff concluded that he had melanoma present on his right buttock. Despite the diagnosis, the doctors took no action. On February 5, 2003, during a prescreening for foot surgery, a military doctor noted a strange looking birthmark on Rodriguez's right buttock, but he also took no action. In March of 2005, while Rodriguez was stationed in Iraq, he visited yet another military doctor after he became concerned about a sore or growth on the same buttock. The military doctor told Rodriguez merely to keep the area clean and to visit the doctor again upon Rodriguez's return to the United States, which would be more than five months later. On November 11, 2005, Rodriguez acted on this advice and, during a checkup, was directed to the dermatology unit to have the birthmark removed for cosmetic purposes. The prescribed surgery never occurred and, by April 2006, after several referrals for the surgery had been lost in the system, Rodriguez's birthmark was bleeding and expelling pus constantly. By the time Rodriguez succeeded in seeing an "appropriate doctor," he was told he had stage III malignant melanoma. After the diagnosis, Rodriguez underwent three surgeries and, though he received the appropriate radiation and chemotherapy treatments, the cancer had already spread throughout his body, making recovery impossible. The doctors informed Rodriguez that if it had been caught earlier, it would have made a big difference. When Carmelo Rodriguez died at the age of twenty-nine in 2007, he weighed less than eighty pounds and "left behind a loving family, including a 7-year-old son." (1)
If Sergeant Rodriguez were a civilian and had been treated in a civilian hospital, his family would have had standing to sue for medical malpractice. However, because Sergeant Rodriguez was an active member of the military at the time the alleged malpractice occurred, under the Federal Tort Claims Act (2) and the Supreme Court precedent set in Fetes v. United States (3) in 1950, his family was precluded from filing suit against the military to recover for his loss. The Court's decision in Fetes stated that the "Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." (4) The "incident to service" test, commonly referred to as the "Feres doctrine," has been much-discussed and long-criticized since its genesis sixty years ago, prompting numerous calls for it to be overruled by the Supreme Court. (5) However, despite decades of harsh criticism and questioning, the federal courts continue to abide by this decision rendered during the early years of the Cold War. (6) With this long, unbending history in the courts, it is unlikely that the Fetes doctrine as applied to military medical malpractice will be overturned any time soon without Congressional action.
Congressman Maurice Hinchey, a Democrat from New York, initiated such action after hearing the plight of Carmelo Rodriguez and his family. He reintroduced a bill to the 111th Congress on March 12, 2009, a bill he had first presented to the 110th Congress in 2008, (7) that would "allow members of the Armed Forces to sue the United States for damages for certain injuries caused by improper medical care." (8) The bill, commonly known as the Carmelo Rodriguez Military Medical Accountability Act of 2009 ("Rodriguez Act"), would amend of Title 28, Chapter 171, of the United States Code by adding Section 2681 to the end, providing in part:
(a) A claim may be brought against the United States under this chapter for damages relating to the personal injury or death of a member of the Armed Forces of the United States arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) that is provided by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the United States inside the United States. …