Military Casualty Clause Comes Under Fire

The Navy says Master Chief Petty Officer Larry Rowe injured himself in the service of his country -- playing volleyball.

In 1995, the soldier tore ligaments in his knee during a lunchtime game at the Naval Security Station in Washington, D.C. An operation at Bethesda Naval Hospital eight months later made the problem worse after doctors sewed through the nerve three times, numbing his leg from the thigh down, Rowe said.

But the worst part of the ordeal is that the government will not pay for its mistake, added Rowe, who can barely keep his left foot from dragging along the floor when he walks.

That's because according to the Feres Doctrine, active-duty military personnel cannot recover damages from the government if the injuries "arise out of, or are in the course of, activity incident to service."

"To allow soldiers to sue their government for tort damages implies that the military has failed its own and that only by taking the 'boss' to court can justice be attained," Deputy Assistant Attorney General Paul Harris told the Senate Judiciary Committee this month.

"Fostering that attitude within a community which demands uncompromising trust and teamwork would have dire implications for our national defense."

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has called for an end to the Feres Doctrine, calling the change "a matter of equity."

Rowe's attorney argues the doctrine is a cop-out.

"He was using a government volleyball on a government base and they called that 'incident to service.' If they can tie anything to Feres, they do," Rowe's attorney, Christopher Kennedy, argued.

The Feres Doctrine arose from a 1950 case, Feres v. the United States, in which the Supreme Court said military personnel injured "in the course of activity incident to service" cannot use the Federal Tort Claims Act, which was designed to let government employees sue their employers.

"It's called judicial activism," Eugene Fidell, an attorney, told the Senate Judiciary Committee.

Fidell said that he receives a dozen cases like Rowe's each year and has to turn each one away.

"It's a real mess. If you're at Walter Reed and they botch your surgery, you can't sue," he said.

Kennedy said the phrase "incident to service" has been used to cover cases that do not arise out of injuries directly related to military duties -- like Rowe's.

Rowe, 46, was a Naval Reservist on active duty at the time of his volleyball injury. The Navy sent him a letter before his surgery saying he had been taken off active duty, prompting Rowe and Kennedy to go to court.

But their suit was thrown out after the Navy put Rowe back on active duty, saying the earlier letter was sent in error, Rowe said.

"This is America. If nothing else I'm guaranteed my day in court. And I didn't even get that," he said.

Sen. Patrick Leahy, D-Vt., said that it is hard to see how military malpractice suits would harm "the military model," because the Federal Tort Claims Act exempts suits brought from combat-related injuries.

"It is high time to be looking at the doctrine. It is a doctrine whose time has come and gone," he said.

But Rear Adm. Christopher Weaver, a commandant in the Naval District Washington, said the military already compensates personnel through a no-fault system similar to that in private industry.

The system includes death gratuity payments, disability benefits, life insurance and Social Security, he said.

Rowe said his $1,800 a month in disability benefits is not enough after several corrective and exploratory surgeries over seven years with more on the way.

"Am I happy with that? Not at all," he said. "My physical therapy costs hundreds of thousands of dollars. To this day I have no more feeling in my leg than that night of my first surgery."

Harris said opening the government up to "all sorts of lawsuits" would allow public money to be wasted on frivolous suits.

In addition, if it were repealed, junior officers could sue their commanders and military cohesion would break down, he warned.

But Rowe said paying damages to him and others in similar situations might force military medical workers to perform better in the workplace.

"The act was put in place to protect the doctors at the front lines of war. It was not enacted to allow doctors to ruin your health," he said.

He added that he has been hurt even more by the military's actions, both in the operating room and the courtroom.

"For 21 years I told the government I'll do whatever you want -- leave my family, put my life in danger," Rowe said. "It's just not right."