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  • Military Medical Malpractice

  • Military Medical Malpractice


    No. 89-1646

    [March 20, 1991]

    Justice Stevens, dissenting.

    The Department of Defense (Department) provides medical and dental care for families of service personnel stationed abroad. Subsection (f) of the Gonzalez Act authorizes the Department to indemnify its health care personnel serving overseas in the event that they are sued for malpractice. [n.1] Regulations issued pursuant to subsection (f) make the United States the real party in interest in such a tort action. [n.2] The regulations provide victims of malpractice with a remedy against the United States, even in cases in which the nominal, individual defendant may have no assets.

    This Gonzalez Act remedy protects both doctors and patients involved in malpractice claims arising out of the performance of health care services for American military personnel and their dependents assigned to duty in foreign countries. The Federal Employees Liability Reform and Tort Compensation Act of 1988 (Liability Reform Act) that the Court construes today says nothing about this special situation; yet, the effect of today's decision is to render subsection (f) of the Gonzalez Act virtually meaningless. There is nothing in the legislative history of the Liability Reform Act to indicate that Congress intended this result. On the contrary, there is strong evidence in both the legislative history, and in the language of 2 and 5(b)(2)(B) of the statute, that Congress intended to preserve pre-existing remedies. This point is clarified by examining the two statutes separately and in chronological order.


    The principal purpose of the Gonzalez Act is succinctly stated in its preamble. It was enacted

    "[t]o provide for an exclusive remedy against the United States in suits based upon medical malpractice on the part of medical personnel of the armed forces, the Defense Department, the Central Intelligence Agency, and the National Aeronautics and Space Administration, and for other purposes." 90 Stat. 1985.

    To achieve its purpose, Congress simply followed the precedent set by four previous amendments to the Federal Tort Claims Act (FTCA), none of which had curtailed any pre-existing remedies. [n.3]

    For claims not covered by the FTCA, such as for those claims arising in foreign countries, the Gonzalez Act authorized medical personnel to be insured or indemnified by the Federal Government. See n. 1, supra. By that arrangement, Congress protected Government doctors from personal liability for services performed in the course of their overseas duties, and at the same time, preserved the common-law remedy for American victims of medical malpractice.

    The Court does not disagree with this interpretation of the Gonzalez Act, see ante, at 9-11, or with the Court of Appeals' conclusion that respondent's claim was viable prior to the enactment of the Liability Reform Act in 1988. See ante, at 11. Thus, the question is whether the Liability Reform Act withdrew the remedy for malpractice claims arising outside of the United States that had been expressly preserved by subsection (f) of the Gonzalez Act.


    The Liability Reform Act was a direct response to this Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988). In Westfall, we resolved a conflict among the Courts of Appeals on the question whether conduct by federal officials must be discretionary in nature, as well as being within the scope of their employment, before the conduct is absolutely immune from state law tort liability. Id., at 295. We held unanimously that nondiscretionary conduct was not entitled to such immunity. Id., at 297.

    Congress enacted the Liability Reform Act to protect all federal employees from the risk of personal liability that was thought to have been created by Westfall. Congress was particularly concerned that lower level employees, the rank and file "who are least likely to exercise discretion in carrying out their duties," were among those who were most likely to be affected by the Westfall decision. H. R. Rep. No. 100- 700, p. 3 (1988).

    Section 2 of the Liability Reform Act contains a detailed statement of Congress' reasons for enacting the statute. [n.4] Congress summarized its purpose as follows:

    "It is the purpose of this Act to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States." 102 Stat. 4564, note following 28 U.S.C. 2671 (emphasis added).

    Notably, neither that statement, nor anything in the legislative history of the Act, reveals any intent on the part of Congress to limit the scope of pre-existing remedies available to victims of torts committed by federal employees. [n.5]

    There were two recurring themes throughout the hearings on the bill that gave rise to the Liability Reform Act. One theme was that this legislation was not intended to curtail any existing remedies already available to tort victims against federal employees, [n.6] and the other was that Congress sought to protect all federal employees from suit by substituting the United States for the individual tortfeasor as the responsible party -- a substitution that would normally benefit the injured party who would no longer have to worry about whether he or she would be able to collect the judgment. The bill was supported by the Department of Justice and two unions representing federal employees.

    Members of Congress not only articulated their intent to preserve the scope of existing remedies during the hearings, but also reinforced that intent by amending the original bill to include 5(b)(2), 28 U.S.C. 2679(b)(2). As amended, 5(b)(2) provides:

    "(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government --

    "(A) which is brought for a violation of the Constitution of the United States, or

    "(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized." 28 U.S.C. 2679(b) (2).

    As to 5(b)(2)(A), Congress made explicit throughout the hearings its intent to exclude constitutional violations from the Liability Reform Act's coverage. [n.7] The Justice Department endorsed that view:

    "It also is important to emphasize the [Liability Reform Act] would apply only to cases alleging injury caused by ordinary common law tortious conduct. By common law tortious conduct, we mean not just causes of action based upon the "common" or case law of the several states, but also causes of action codified in state statutes that permit recovery for negligence, such as, for example, wrongful death statutes. The term does not include, and [the Liability Reform Act] is not intended to apply to, cases that allege violations of constitutional rights, or what commonly are known as Bivens cases. Persons alleging constitutional torts will, under [the Liability Reform Act], remain free to pursue a remedy against the individual employee if they so choose." House Hearings 78.

    The Justice Department explained that the issue of constitutional torts was a controversial one, and one that was not affected by the Court's decision in Westfall because Westfall was limited to common-law torts. Id., at 79. Members of Congress stressed that constitutional torts would not be encompassed by this legislation, and thus, there was no need to address the issue. See, e. g., id., at 40, 195. During the hearings, however, there was some suggestion that an action could involve both a common-law tort and a constitutional violation. See, e. g., id., at 42, 127, 173. In response to this concern, Congress apparently added 5(b)(2)(A) to make explicit what it had assumed all along: that victims of constitutional violations would remain free to pursue a remedy against the individual employee if they chose to do so.

    As to 5(b)(2)(B), Congress provided no specific explanation for its inclusion, other than its general concern with preserving all pre-existing remedies available to victims of torts committed by federal employees. Just as Congress added 5(b)(2)(A) to ensure that constitutional torts would not be included within the scope of the Liability Reform Act, similarly, it must have added 5(b)(2)(B) to ensure that preexisting remedies protected by a statute would not be affected as well. Congress did not need to add this amendment, any more than it needed to add 5(b)(2)(A), because just as constitutional torts are, for the most part, outside the realm of common-law torts, similarly statutory violations are also outside the realm of common-law torts. Nevertheless, this action is consistent with Congress' general intent, expressed throughout the hearings and in the House Report, that it not curtail any pre-existing remedies of tort victims. Unless the amendment was intended to preserve the Gonzalez Act remedy, it was essentially without purpose -- a result Congress clearly could not have intended.

    The Court's reading of the Liability Reform Act makes 5(b)(2)(B) superfluous. [n.8] Indeed, the Court never says what kind of statutory violation 5(b)(2)(B) is meant to protect, nor does Congress provide any specific guidance. To avoid the Court's result of turning this subsection into surplusage, it should be construed to accomplish the purpose repeatedly identified in the hearings, which is to avoid any interpretation of the Act that would limit the scope of pre- existing common-law remedies. This purpose was unequivocally identified in the House Report on the bill. It explains: "Under H. R. 4612, no one who previously had the right to initiate a lawsuit will lose that right." H. R. Rep. No. 100- 700, at 7. [n.9]

    The description of 5 in the section-by-section analysis of the Liability Reform Act is consistent with the view that it was intended to describe the remedy available to a plaintiff in a common-law cause of action for malpractice arising in foreign countries that was specifically authorized by subsection (f) of the Gonzalez Act. The House Report states that the section "would make it clear that the remedy provided in this legislation does not extend to constitutional torts or to causes of action specifically authorized to be brought against an individual by another statute of the United States." Id., at 8 (emphasis added).

    The Court argues that the "Gonzalez Act remedy" has not been impliedly repealed because "the Gonzalez Act functions solely to protect military medical personnel from malpractice liability; it does not create rights in favor of malpractice plaintiffs." Ante, at 11. This is not strictly accurate because subsection (f) of the Gonzalez Act, as implemented by regulation, did provide malpractice plaintiffs with an important remedy against the United States as the real party in interest that they did not previously have. [n.10] Moreover, this provision of the Gonzalez Act amounted to an express preservation of a common-law remedy. Because 5(b)(2)(B) of the Liability Reform Act is otherwise virtually meaningless, [n.11] I believe it should be construed to preserve that remedy. Otherwise, without any justification for doing so, the Liability Reform Act has silently repealed this provision of the Gonzalez Act.

    Under the Court's holding, the Liability Reform Act has closed the door to all federal and state courts for American victims of malpractice by federal health care personnel stationed abroad. [n.12] No legislative purpose is achieved by that holding because these personnel are already protected from personal liability by the Gonzalez Act and the indemnity regulation. The only significant effect of this holding is to deprive an important class of potential plaintiffs of their pre-existing judicial remedy. Respondents, and other plaintiffs like them, are now precluded from pursuing their preexisting common-law claims against an allegedly negligent doctor working abroad, even though the doctor is indemnified by the Federal Government. I cannot believe that Congress intended that result. I am therefore persuaded that 5(b) (2)(B) should be read in a way that prevents it from being nothing more than a meaningless appendage and allows it to fulfill its intended purpose of preserving pre-existing claims. [n.13]

    In Westfall v. Erwin, 484 U.S. 292 (1988), we said that "Congress is in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity is warranted in a particular context" and we suggested that "[l]egislated standards governing the immunity of federal employees involved in state-law tort actions would be useful." Id., at 300. Today, the Court, by deciding that a section of Congress' handiwork is a nullity, once again invites Congress to step in and "provide guidance."

    I respectfully dissent.

    1 The Gonzalez Act, also known as the Medical Malpractice Immunity Act, authorizes indemnification as follows:

    "(f) The head of the agency concerned or his designee may, to the extent that he or his designee deems appropriate, hold harmless or provide liability insurance for any person described in subsection (a) for damages for personal injury, including death, caused by such person's negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of such person's duties if such person is assigned to a foreign country or detailed for service with other than a Federal department, agency, or instrumentality or if the circumstances are such as are likely to preclude the remedies of third persons against the United States described in section 1346(b) of title 28, for such damage or injury." 90 Stat. 1986(f), as amended, 10 U.S.C. 1089(f).

    Another subsection makes the same indemnification arrangement available to members of the National Aeronautics and Space Administration. See 90 Stat. 1989, 42 U.S.C. 2458a(f).

    2 According to the Department's regulations:

    "6. Extent of Protection. Reference (b) [the Gonzalez Act] extends coverage within the United States and its possessions by making suit against the United States under the Federal Tort Claims Act the exclusive remedy for an injured party. Where the Federal Tort Claims Act does not apply (as, for example, where the acts giving rise to the claim occurred outside the United States), coverage is provided by allowing the Secretary of Defense to hold harmless or provide liability insurance for health care personnel.

    "7. Exercise of Authority. By reference (a), the Secretary of Defense delegated to the Secretary of the Navy the authority to hold harmless or provide liability insurance for Navy health care personnel. All persons referred to in paragraph 4 above and in subsection (a) of reference (b) are hereby held harmless for damages resulting from negligent or wrongful acts or omissions while acting within the scope of duties and assigned to duty in a foreign country, or detailed for service with other than a Federal agency, or if the circumstances are such as are likely to preclude remedy against the United States under the Federal Tort Claims Act, as provided by subsection (f) of reference (b)." Department of the Navy, SECNAV INSTRUCTION 6300.3, JAG:14C (Mar. 14, 1978), App. to Brief for Respondents 2a-3a.

    3 As the Senate Report explained:

    "By making the Federal Tort Claims Act an exclusive remedy, a claimant is forced to sue the United States for damages rather than a government employee in his personal capacity. At least four existing statutes make the Federal Tort Claims Act an exclusive remedy in order to protect a certain class of government employee from personal liability.

    "In 1961 the Government Driver's Act (Public Law 87-258) made the Federal Tort Claims Act the exclusive remedy for damages sustained as a result of the negligent operation of a motor vehicle by a federal driver acting within the scope of his employment. The result was to protect federal employees in their individual capacity from tort liability arising from the operation of motor vehicles.

    "In 1965, Congress enacted a bill patterned after the Government Driver's Act which protected medical personnel of the Veterans' Administration for individual tort liability from malpractice when acting within the scope of their employment (Public Law 89-311).

    "Similar legislation making the Federal Tort Claims Act the exclusive remedy for malpractice was enacted in 1970 to immunize medical personnel of the Public Health Service from personal liability arising out of performance of their medical duties (Public Law 91-623).

    "More recently, the Foreign Relations Authorization Act of fiscal year of 1977 (Public Law 94-350) immunized medical personnel of the State Department from personal liability for medical malpractice.

    "In all essential respects these four statutes are similar. Each statute abolished old rights recognized by the common law to obtain the legislative object of protecting certain federal employees from suit in their individual capacities.

    "H. R. 3954 is modeled after these statutes." S. Rep. No. 94-1264, p. 3 (1976).

    4 In 2 of Pub. L. 100-694, 102 Stat. 4563, Congress set forth the findings and purposes of the Liability Reform Act:

    "(2) The United States, through the Federal Tort Claims Act, is responsible to injured persons for the common law torts of its employees in the same manner in which the common law historically has recognized the responsibility of an employer for torts committed by its employees within the scope of their employment.

    . . . . .

    "(4) Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees.

    "(5) This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.

    . . . . .

    "(7) In its opinion in Westfall v. Erwin, the Supreme Court indicated that the Congress is in the best position to determine the extent to which Federal employees should be personally liable for common law torts, and that legislative consideration of this matter would be useful." 102 Stat. 4563-4564, note following 28 U.S.C. 2671.

    5 Senator Grassley, one of the sponsors of the legislation explained:

    "As my colleagues know, the FTCA has generally worked well over the past four decades in providing fair and expeditious compensation to persons injured by the common law torts of Federal employees. This bill, by covering Westfall-type cases under the FTCA, assures that victims of common law torts of Federal employees will be fairly compensated. At the same time, it provides a needed measure of employee protection from personal liability.

    "Mr. President, I would like to emphasize that this bill does not have any effect on the so-called Bivens cases or Constitutional tort claims. Although this too is an area of concern to me -- and I have introduced corrective legislation in the past -- the bill that we pass today has no impact on these cases, which can continue to be brought against individual Government officials." 134 Cong. Rec. 29933 (1988).

    6 Thus, a representative of the Department of Justice testified:

    "H. R. 4358 would do nothing more than extend the protection now enjoyed by doctors, drivers, and DoD attorneys to all federal employees. It also will ensure equitable and consistent treatment for persons injured by federal conduct, without regard to the status of the employee whose actions are alleged to have caused the injury." Hearings on H. R. 4358 et al. before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, 100th Cong., 2d Sess., 76 (1988) (hereinafter House Hearings).

    The point was reiterated by others during the hearings and debate. See id., at 34 ("In no way, in no way at all, does this measure infringe or diminish any legal rights of individuals") (statement of Rep. Wolf); id., at 44 ("[W]e want to protect the employees without diminishing the rights of anyone who might be injured") (statement of Chairman Frank); 134 Cong. Rec. 15963 (1988) ("Other remedies under other acts, Civil Rights Act, are not affected at all") (statement of Chairman Frank).

    7 See, e. g., House Hearings 40, 58, 127, 195.

    8 The Court's approach today runs counter to the well-established rule that meaning should be attributed to each subsection of a statute. See United States v. Morton, 467 U.S. 822, 828 (1984); see also 2A N. Singer Sutherland on Statutory Construction 46.06, p. 104 (C. Sands 4th rev. ed. 1984) ("A statute should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant") (footnotes omitted).

    9 The Court today attempts to explain the House Report's language away by claiming that because it appears in a section pertaining to implementation of the Act, it says nothing more than that those plaintiffs who had actions pending would be permitted to pursue them by substituting the Government for the individual employee. See ante, at 6, n. 9. However, similar language also appears in the House Report before any discussion of what would happen during the transition period. According to the House Report, the Liability Reform Act "does not change the law, as interpreted by the Courts, with respect to the availability of other recognized causes of action; nor does it either expand or diminish rights established under other Federal statutes." H. R. Rep. No. 100-700, p. 7 (1988). Such language indicates that Congress was concerned not just with preserving procedural rights, as the Court would have it, but also with preserving existing substantive rights.

    10 The Eleventh Circuit recognized that subsection (f) could not be ignored: "Because subsection (f) was written into the Gonzalez Act, we are required to give it meaning." Newman v. Soballe, 871 F. 2d 969, 974 (1989). The Tenth Circuit also acknowledged, albeit in dicta, that subsection (f) of the Gonzalez Act provided an important remedy:

    "The purpose of [subsection (f)] is to provide a method for the assumption by the government of responsibility for damage claims against its military medical personnel arising from medical care given in foreign countries in the scope of their employment. Behind it is the desire to protect military medical personnel from the ever-present danger of personal liability . . . while preserving a means for compensating malpractice victims for their injuries. . . . Instead of granting military medical personnel practicing in foreign countries absolute immunity from suit for acts within the scope of their employment, Congress elected to have the government protect them through indemnification or insurance. The effect of this approach rather than absolute immunity is to ensure a remedy to victims of malpractice by military medical personnel assigned to a foreign country." Jackson v. Kelly, 557 F. 2d 735, 740-741 (CA10 1977).

    11 The theoretical possibility of litigation in a foreign court, see ante, at 12, n. 15, was never even mentioned in the legislative history of either the Gonzalez Act or the Liability Reform Act.

    12 The only remedy that remains available to respondents after the Court's decision today is the possibility of a private bill. See Office of Personnel Management v. Richmond, 496 U. S. --- (slip op. 16) (1990). Ironically, the Court, by its restrictive reading, now leaves families of service personnel who have been injured by federal health workers in foreign countries with little choice but to seek private bills in order to receive compensation; this is the very policy that Congress sought to avoid when it enacted the FTCA over 40 years ago. At the time of the FTCA's enactment, Congress sought to rectify the shortcomings of a system that was "unduly burdensome to the Congress" and was "unjust to the claimants" because it did not "accord to injured parties a recovery as a matter of right but base[d] any award that may be made on considerations of grace." H. R. Rep. No. 1287, 79th Cong., 1st Sess., 2 (1945). Congress intended the FTCA to "establish a uniform system" to replace the existing system of private bills. Id., at 3.

    13 In response to this dissent, the Court has restated its argument that respondent did not "violate" the Gonzalez Act. See ante, at 14. As a matter of pure grammar, the Court is, of course, correct. It nevertheless remains true that this literal reading of the Liability Reform Act fails to answer two critical questions: (1) What legislative purpose is served by depriving malpractice victims, such as petitioner, of their Gonzalez Act remedy? (2) If 5(b)(2)(B) does not preserve that remedy, then what was its purpose? If forced to choose between an assumption that Congress used imperfect grammar to achieve a benign purpose identified in the legislative history and an assumption that it inadvertently achieved a heartless purpose disclaimed in the legislative history, I have no difficulty in choosing the former.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

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