April 26, 2008 1:03 PM
Posted By News Questions
& comments 1
Military Medical Malpractice: Feres Unfair?
There is a growing debate, fueled by poor military medical care, about whether active-duty service personnel should be able to sue for malpractice. Such malpractice suits have been barred since the Supreme Court’s 1950 decision in Feres v. United States.
Feres’ critics argue that it shields negligent healthcare providers from accountability and seek a legislative fix, but supporters contend that it protects the military from costly litigation.
The resurrection of this debate coincides interestingly with related legal developments in the United Kingdom. In a decision, R. v. The Assistant Deputy Coroner for Oxfordshire et al [2008] EWHC 694 (Admin), just released last week, the English High Court (a court of first instance for judicial review) introduced the whole field of human rights into the field of war theatre military operations where the health of a soldier was affected, this time, fatally.
In the Oxfordshire Coroner case, a British reserve soldier had died of head stroke while on service in Iraq and temperatures in the shade exceeded 50 degrees Celsius. Private Jason Smith presented with original sick parade complaints consistent with heat stroke and then a few days later collapsed and ultimately died of hyperthermia. At all times he was in a base and a hospital entirely under the control of his own military and had no involvement in treatment or otherwise with nationals of any other country.
The Coroner’s inquiry was called at the instance of family to find out what had gone wrong.
The inquiry went little distance. The Coroner failed to apply Human Rights legislation that would have entitled the family of the deceased private to allow full production of British Army investigation of the death, and more or less on the paucity of evidence or the confidence that British military inquiry had adequately addressed the issue, shut down the inquiry.
The English High Court found that Human Rights legislation – including its mechanism to compel disclosure of the military reports applied notwithstanding that the soldier was on active service and the matter was returned to the coroner to properly convene and conduct the information appropriately applying the Human Rights legislation.
That decision followed closely another coroner’s February 2008 condemnation of the British Government’s failure to properly equip its troops and questioning whether with better kit the combat death of British artillery captain could have been avoided.
And that decision itself was followed by only one or two days with an announcement that treatment facilities for British casualties would be significantly upgraded.
The transparency that outside investigation of the fundamental care and protection provided armed forces members can have an immediate and direct broad-scale remedial effect. Questions of military medial malpractice are only a small part of the close restrictions that shutter up the opportunity to propel both accountability and the fix in each of these systems.
The resurrection of this debate coincides interestingly with related legal developments in the United Kingdom. In a decision, R. v. The Assistant Deputy Coroner for Oxfordshire et al [2008] EWHC 694 (Admin), just released last week, the English High Court (a court of first instance for judicial review) introduced the whole field of human rights into the field of war theatre military operations where the health of a soldier was affected, this time, fatally.
In the Oxfordshire Coroner case, a British reserve soldier had died of head stroke while on service in Iraq and temperatures in the shade exceeded 50 degrees Celsius. Private Jason Smith presented with original sick parade complaints consistent with heat stroke and then a few days later collapsed and ultimately died of hyperthermia. At all times he was in a base and a hospital entirely under the control of his own military and had no involvement in treatment or otherwise with nationals of any other country.
The Coroner’s inquiry was called at the instance of family to find out what had gone wrong.
The inquiry went little distance. The Coroner failed to apply Human Rights legislation that would have entitled the family of the deceased private to allow full production of British Army investigation of the death, and more or less on the paucity of evidence or the confidence that British military inquiry had adequately addressed the issue, shut down the inquiry.
The English High Court found that Human Rights legislation – including its mechanism to compel disclosure of the military reports applied notwithstanding that the soldier was on active service and the matter was returned to the coroner to properly convene and conduct the information appropriately applying the Human Rights legislation.
That decision followed closely another coroner’s February 2008 condemnation of the British Government’s failure to properly equip its troops and questioning whether with better kit the combat death of British artillery captain could have been avoided.
And that decision itself was followed by only one or two days with an announcement that treatment facilities for British casualties would be significantly upgraded.
The transparency that outside investigation of the fundamental care and protection provided armed forces members can have an immediate and direct broad-scale remedial effect. Questions of military medial malpractice are only a small part of the close restrictions that shutter up the opportunity to propel both accountability and the fix in each of these systems.