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ASSISTANT JUDGE ADVOCATES GENERAL

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Captain Alm, Assistant Judge Advocate General for International and Administrative Law, formerly served as Assistant Judge Advocate General for Military Justice. His prior duty assignments include Chairman of the Joint Services Committee for Revision of the Manual for Courts-Martial; the Administrative Law and Legislative Divisions of the Office of the Judge Advocate General; Force Legal Officer, Commander Destroyer Force, U.S. Atlantic Fleet; and tours of duty in the Eleventh Naval District, San Diego, California, and in Pensacola, Florida, and London, England. A graduate of the George Washington University Law School, Captain Alm practiced law in Washington, D.C., for six years prior to his entry into the Navy. During World War II he served at the Naval Operating Base Iceland and as Flag Secretary to Commander Training Command Atlantic Fleet. He is a member of the American Bar Association, the Federal Bar Association, the American Society of International Law and the Inter-American Bar Association.

CAPTAIN CARLTON F. ALM, USN

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Captain Smith is Assistant Judge Advocate General for Personnel, Reserve and Planning and is the Public Information Officer for the Office of the Judge Advocate General. Captain Smith is a graduate of both the College and the Law School of the University of Virginia. From 1939 to the time of his entry into the Navy he was engaged in the private practice of law in New York City. Following line duties in World War II, he was accepted for Special Duty in Law in 1946. Prior to his present assignment, Captain Smith served on the staff of various force and type commanders including tours of duty in the Philippines and in England. He is a graduate of the Career Course of the Army Judge Advocate General's School. Captain Smith is a member of the American Bar Association, the Federal Bar Association and the InterAmerican Bar Association.

CAPTAIN THOMAS P. SMITH, JR., USN

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Captain O'Malley, Assistant Judge Advocate General for Military Justice, was formerly District Legal Officer Third Naval District and Staff Legal Officer Commander Eastern Sea Frontier. Captain O'Malley entered the Navy in April 1942 and served for eighteen months at sea as an Armed Guard Officer in the Pacific. His other duty assignments have been Assistant District Legal Officer, Eleventh Naval District; Special Legal Assistant to the Secretary of the Navy and Assistant Secretary of the Navy (Personnel and Reserve Forces); Force Legal Officer for Commander in Chief, U.S. Naval Forces Europe and Commander in Chief Specified Command. He was Chairman and U.S. Navy member of the Interservice Legal Committee established by Commander in Chief U.S. Forces Europe. Captain O'Malley is a graduate of the University of Notre Dame and Chicago Kent College of Law. He is a member of the bar of the State of Illinois, the American Bar Association, American Society of International Law and the Federal Bar Association.

CAPTAIN GEORGE F. O'MALLEY, USN

U.S. MERCHANT MARINE POLICY

(Continued from page 100) registry” ships for a substantial part of its reserve mobilization fleet. Loss of that control either by migration of these ships to other countries or sale to foreign shipping interests would significantly adversely affect our emergency mobilization capabilities. Although the present situation is not ideal the United States must either choose a course of substantially increasing the subsidy program to include all U.S. shipping engaged in competitive foreign trade (at a tremendous cost) or it must protect and attempt to preserve those U.S. owned and controlled merchant ships which are registered under "foreign flags."

gard to these ships would be eliminated. The economy of this position, however, has raised some doubts by other reviewers and it is considered that its application would be dependent upon a cost study of the proposal. Additionally, the introduction of another responsible agent into the picture would only tend to delay transactions between the Maritime and the operators relating to vessels in the Reserve Fleet. It would appear that under the present law, implemented by interdepartmental agreements, the maintenance of the Reserve Fleet by the Department of Commerce and its availability to other governmental agencies as their needs arise is well provided for.

V. ADEQUACY OF PRESENT LAWS AS BASES FOR

CHANGE AND EXPANSION OF CAPABILITIES

IV. PRESENT THEORY OF CENTRALIZATION OF

TRANSPORTATION Centralization of transportation programs under the Department of Commerce permits intelligent planning and budgeting of Federal transportation activities. In addition it coordinates widely scattered transportation functions throughout the executive branch. It therefore makes it possible for Congress and the President to hold a single official responsible and accountable for the effective conduct of all aspects of this program including size and character of the fleet under the U.S. flag, the need for Government assistance, and requirements for appropriations to support subsidy programs.

There have been proposals to fragment this central control by delegating to those departments of the government immediately concerned with transportation, the responsibility for maintaining shipping necessary to their prospective needs. It would follow that a considerable part of this allocated shipping would be inactive for extensive periods of time and consequently maintained in a "mothball" status with some predetermined period of readiness. These reserve ships would be withdrawn from the control of the Maritime Administration in that it would have no authority to provide for their operation and consequently their only purpose for existence would be to meet the needs of the department of the government to which they were allocated.

The advantages of such a plan are apparent and as its advocates suggest, the construction and operating differential subsidies with re

The present status of the laws and regulations as they pertain to the merchant marine reflects a series of well coordinated and remarkably flexible authorities which will permit implementation to provide for any foreseeable need for our national security. If funds are available and they are budgeted as required there is no restriction in the law or regulations which would inhibit or delay unlimited expansion of our merchant fleet.

The Merchant Marine Act of 1936 has withstood the test of time and application and those authorities who have been assigned the responsibility for its administration have found it to be a most practical and workable tool. It has had growing pains as has all legislation regulating phases of the expanding national economy and defense. Amendments, agreements, reorganizations and allied legislation have, however, kept it current and maintained its utility.

The responsibility of the Secretary of Commerce under the Act is clear and his allied responsibility for emergency preparedness is carefully outlined in the executive orders of the President. Notwithstanding the advocates of decentralization, the present system appears to be an efficient, workable one which delegates authority for policy making decisions to a branch of the government directly responsible to the executive. Experience has taught that in those areas where centralization is desirable in peacetime, it becomes a necessity during periods of emergency.

SOME COMMENTS ON MEDICAL NEGLIGENCE

LIEUTENANT JOHN J. O'NEILL, JR., USNR*

IL A PHYSICIAN make a deep incision on

F A PHYSICIAN make a deep incision on a man with his bronze lanclet and cause the man's death, or operate on the eye sockets of a man with his bronze lanclet and destroy the man's eye they shall cut off his hands." i This small excerpt from the Code of Hammurabi illustrates the fact that, from the earliest time, the medical practitioner stood in danger of punishment if he performed his work carelessly or erroneously. Although the laws prescribing punishment by amputation have been erased from the books, the medical practitioner today is subject to civil liability, and even criminal penalties, in some cases, if he commits malpractice. A member of the medical team of the United States Navy is no exception.

There are those in the Armed Services and in private practice, who insist that when referring to medical treatment the term malpractice is erroneous and misleading. This word, those people say, creates the wrong impression; instead they would call this topic “professional negligence," and define it as a failure by medical men to exercise that degree of skill and care which is commonly possessed by other reputable practitioners in the community in treating similar cases.? Also included within the scope of this article will be what might be called nonprofessional negligence, that is, improper or negligent treatment by members of the hospital staff who do not hold a degree in some field of medicine, e.g., hospital attendants, corpsmen and other such personnel. The people in this latter category are employees of the United States as are the doctors, and they constitute a part of the medical team. These nonprofessionals are also under a duty to perform in accordance with a standard of care.3 Therefore, this article is concerned with negligence, both professional and nonprofessional, of *Lieutenant O'Neill attended Georgetown University, receiving an A.B. degree (History and Philosophy) from the College of Arts and Sciences in 1958 and an LL.B. degree in 1961 from the Law Center. Following graduation from law school Lieutenant O'Neill entered the U.S. Navy. He is stationed at the Pentagon, attached to the Office of the Judge Advocate General, Litigation and Claims Division, and is presently Head, Torts and Frauds Branch. He is a member of the D.C. Bar Association, the American Bar Association, and the Phi Delta Phi Legal Fraternity. He is admitted to practice before the U.S. Court of Appeals for the D.C. Circuit; U.S.D.C., D.C.; the U.S. Court of Claims; and the Court of Military Appeals. 1. Babylon C 2250 B.C., Section 218; Smith, Origin and History of

Bebrew Law 211, 212 (1931). 2. Regan and Moritz, Handbook of Legal Medicine 32 (1956). 3. Wood v. Miller, 158 Ore. 444, 76 P. 2d 963 (1938).

naval personnel in the treatment of other service personnel and their dependents. However, because the service practitioner is subject to the same standards as the private practitioner, viewpoints and cases involving both the civilian and military will be discussed. For the sake of convenience the subject will be referred to here as malpractice.

Malpractice has been defined above as the failure by medical men to exercise the skill and care that others in the profession and in the same community and situation would utilize.. This "degree of skill or care" is an important concept. It is not something which can be defined in textbooks or set down in print as such; it is the procedures and methods employed by a hypothetical man. However, this man is not a civilian or a military layman; he is a medical practitioner and the special knowledge or skill of which he is possessed must be taken into account, and consequently, the standards by which he is regulated will be far above those which the layman would employ. When there is a deviation from the accepted mode of treatment, and damage or injury results, in many cases a suit will follow against the practitioner or his employer, or both.

To illustrate: The dependent 9-year-old son of a chief petty officer complains of a soreness in his stomach. His father brings him to a United States Naval Hospital to be examined. It is determined by the medical personnel at the Navy hospital that the boy is suffering from appendicitis and that an emergency operation is necessary. Following the emergency operation an infection sets in and the boy is required to undergo further treatment to alleviate this infection. As a result of the further treatment he misses school, suffers intolerable pain and discomfort and must spend many weeks in the hospital. The son, by a guardian, now brings a suit against the United States under the Federal Tort Claims Act charging the medical personnel at the hospital with malpractice in the treatment rendered to him. The issue to be decided in court would then be whether or not the doctor who performed the appendectomy had utilized

4. Regan and Moritz, op. cit. supra note 2, at 32. 5. Restatement, Torts, Section 289, Comment n. 6. Act of August 2, 1946, Ch. 753, 60 Stat. 842; 28 United States

Code, $8 1291, 1346(b) (c), 1402 (b), 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680.

that amount of care and skill which would have been used by the “ordinary doctor" in that community. The "degree of skill or care" used as a guide line is that skill which is peculiar to the locale in which the treatment was rendered? or which is peculiar to similar localities. This "same or similar locality" rule would seem to be the better principle to follow for the service practitioner because of the remote location of some military facilities."

The standard of care for an ordinary general practitioner is less than that of a specialist.10

The plaintiff has the burden to show the causal connection between the injury complained of and negligence of the physician. In other words, the burden of proof is on the plaintiff.11

Because a very special degree of skill is involved, expert testimony is necessary to prove that negligence on the part of a physician is present.12 However, because of the refusal, in some cases, of one physician to testify against another, 13 some courts have allowed the doctrine of res ipsa loquitur (the thing itself speaks) to be used where any layman could decide that erroneous treatment had been rendered, as for example, when an object is left in a closed surgical wound.14

Generally speaking, the doctrine of respondeat superior (let the master answer) will be applied to these professional men.15 Allan H. McCoid discusses the vicarious liability of hospitals in his article "Care Required of Medical Practitioners" appearing in Roady and Andersen, Professional Negligence, 62 (1960):

For some time, the courts were reluctant to impose any liability upon hospitals for the conduct of nurses and staff members in the operating room, either on the theory that these were “professional activities” over which the hospital could not have a right of control since it was not competent to practice medicine 7. Booth v. United States, 155 F. Supp. 235, 238-239 (Ct. Cl. 1957). 8. Whitesell o. Aill, 101 Iowa 629, 70 N.W. 750 (1897). Accord,

on the theory that the nurses and others became "borrowed servants" of the head surgeon, and, for the time being, were subject to his exclusive right of control."

There has been a growing tendency in recent years, however, to recognize that hospitals may be liable for the miscarriage of those services which hospitals normally provide patients, including the professional services of staff members. (Footnotes in original.)

Let us look at the problem of who can sue the United States Government and how. Prior to 1946 18 anyone desiring to sue the Government for wrongful acts had to obtain permission from Congress. This entailed a special bill and it became quite a cumbersome procedure involving voluminous paper work by members of both the legislative and executive branches of the government. Therefore, in 1946, the Federal Tort Claims Act 19 was passed waiving sovereign immunity and allowing suit against the United States for wrongful acts or omissions. Since this is the only method (exclusive of admiralty and maritime matters) today of suing the government for a wrongful act, all malpractice (for professional and nonprofessional negligence) suits are brought under the mantle of this act. Such an action must be brought in a United States District Court and the law of the place where the tort allegedly occurred is the substantive law used by that court. The procedural rules are the court's own.20 Although Rule 8(a) Federal Rules of Civil Procedure requires the plaintiff to include in his complaint, “a short and plain statement of the claim showing the plaintiff is entitled to relief”, he is not required in his pleading to set his case down in exact detail; he is not required to plead his evidence.21

An action against the United States may not be brought by a serviceman for injury resulting from medical treatment rendered to that service

or

Rodgers v. Lawson, 170 F. 2d 157, 158 (D.C. Cir. 1948). 9. See Canon v. United States, 111 F. Supp. 162 (N.D. Cal. 1953),

aff'd, 217 F.2d 70 (9th Cir. 1954). 10. Booth v. United States, supra note 7, at 238; Restatement, Torts,

Section 299, Comment d. 11. Restatement, Torts, Section 291, Subsection 1, Comment b;

Hohenthal v. Smith, 114 F. 2d 494 (D.C. Cir. 1940). 12. Dert v. Bonney, 38 Wash. 2d 678, 231 P. 2d 637 (1951). 13. See discussion of "conspiracy of silence" infra, 14. Johnston v. Rodis, 151 F. Supp. 345 (D.D.C. 1957), red'd, 251

F. 2d 917 (D.C. Cir. 1958); Christie v. Callahan, 124 F. 2d 825,

828 (D.C. Cir. 1941). 15. Harlan v. Bryant, 87 F.2d 170 (7th Cir. 1936). 16. This view was largely limited to New York, where it originated in

Schloendorfi v. Society of New York Aosp., 211 N.Y. 125, 105 N.E. 92 (1914), 52 L.R.A. (n.s.), 505 (1914) (nonliability of hospital for acts of physician and nurses in performance of unauthorized operation), and further refined in Phillips v. Buffalo General Hosp., 239 N.Y. 188, 146 N.E. 199 (1924) (nonliabil. ity for acts of orderly performing work normally done by nurse) ; Sheehan v. North Country Community Hosp., 273 N.Y. 163, 7 N.E. 2d 286 (1937) (liability for negligence of "ordinary em

ployee"); Berg v. New York Society for Relief of the Ruptured and Crippled, 1 N.Y. 2d 499, 136 N.E. 2d 523 (1956) (liability for nonprofessional employees). The latter case sheds considerable doubt on the administrative-professional or medical distinction, which has been abandoned completely in Bing v. Thanig, 2 N.Y. 2d 656, 143 N.E. 2d 3 (1957). For details see 25 A.LR. 2d 29, 170–74 (1952). The distinction may be applicable in Minnesota and Pennsylvania as well, see Swigert v. City of Ortoa. oille, 246 Minn, 339, 75 N.W. 2d 217 (1956); Benedict v. Bondi,

384 Pa. 574, 122 A. 2d 209 (1956). 17. E.g., St. Paul-Mercury Indem. Co. v. St. Joseph's Hosp., 213

Minn. 558, 4 N.W. 2d 637 (1942); Aderhold v. Bishop, 94 Okls. 203, 221 Pac. 752 (1923); Minogue v. Rutland Hosp., 119 Vt. 336, 125 A. 2d 796 (1956); Hillyer v. Governor of Saint Bar

tholomew's Hosp. (1909), 2 K.B. 820 (C.A. 1909). 18. Federal Tort Claims Act was passed on August 2, 1946. 19. See statute cited supra note 6. 20. Massachusetts Bonding and Insurance Co. v. United States, 351

U.S. 128 (1956); Endler v. United States, 101 F. Supp. 332 (D.C.

Pa. 1951). 21. Dunn v. J. P. Stedens & Co., 192 F. 2d 854 (2d Cir. 1951);

Webb v. Webb, 32 F.R.D. 615 (W.D. Mo. 1963).

man while on active duty. This doctrine was set down in the case of United States v. Feres,22 wherein the Court decided that because of the special relationship between a serviceman and his superior, a suit against the United States will not be allowed while the serviceman or employee is acting "incident to his service." During the time that he is receiving medical attention the serviceman is engaged in an activity incident to his service, and therefore he cannot avail himself of the remedies under the Federal Tort Claims Act nor can anyone else sue for him in this case.23

There are many close questions as to whether a man is acting "incident to his service" when injured and therefore precluded from suit. United States v. Tumenas 24 involved a sailor who was being transferred to a new command and was on leave during the intermittent period. During this time he became sick and reported to a U.S. Naval Hospital. His sickness was diagnosed as a situation not requiring emergency treatment and he was put to bed. A few days later he died, the primary cause of death being pulmonary embolus. His widow sued the Government for failure to diagnose and treat his sickness in time to save his life. The case never went to trial but was dismissed because the court applied the doctrine set down in United States v. Feres 25 and ruled that a serviceman taken ill while on leave is acting "incident to his service" upon reporting to a naval medical facility, and therefore neither he nor his survivors may bring suit under the Federal Tort Claims Act.

A further extension of the so-called Feres doctrine was set down recently by the United States Court of Appeals for the Ninth Circuit.26 In that case the appellant had been undergoing a physical examination to determine his fitness for active duty when an act of malpractice was allegedly committed upon his person.

The Court of Appeals affirmed the lower court in deciding that the Feres rule applied, i.e., that the appellant was engaged in an activity incident to his service at the time of the alleged injury. The court adopted the Supreme Court's

reasoning in the Feres case by saying that other administrative benefits were available to the plaintiff and that there existed a relationship between the serviceman and his superiors which was special and different from any found in civilian life.

The same principle applies to a civilian Government employee who is injured while acting within the scope of his employm nt.27 He cannot sue under the Federal Tort Claims Act, but must rely on the benefits afforded to him under the Federal Employees' Compensation Act.28 Of course, civilians not employed by the Federal Government can bring suit under the Federal Tort Claims Act.

The other side of the coin is the matter of who can be sued. There has been some confusion as to whether or not medical personnel in uniform can be sued personally for injury resulting to a patient from treatment rendered at a military medical facility. Since 1958, the records of the Office of the Judge Advocate General of the Navy show that in only one case has the doctor been sued for injuries resulting from treatment rendered at a naval facility. However, this case has not been dispositive of the issue because it was dismissed before trial. The right to bring suit, however, does not include the right to recover, and there is a segment of judicial opinion which upholds the view that the military practitioner cannot be sued successfully by servicemen.

The case of Gamage v. Peal 29 involved a law suit by an Air Force officer who, when being examined for an automobile operator's license clearance, was made the subject of a "Medical Board Report" and eventally retired for medical disability. The plaintiff sued several doctors, including a psychiatrist, for defamation and improper treatment. The court dismissed the suit stating:

The acts complained of being within the course and scope of defendant's duties and authority, the defendants served are immune from actions for money damages arising from such acts. The rule supporting this finding is well established. Barr v. Mateo, 360 U.S. 564; (Citing other cases).30

22. 340 U.S. 135 (1950).
23. Archer v. United States, 217 F. 2d 548, 550 (9th Cir. 1955), cert.

denied, 348 U.S. 953 (1955).
24. U.S.D.C. for the Southern District of Florida, Miami Division,

1962. 25. Supra note 22. 26. Knoch v. United States, 316 F. 2d 532 (9th Cir. 1963).

27. United States v. Meyer, 200 F. 2d 110 (5th Cir. 1952); Balancio

v. United States, 267 F. 2d 135 (2d Cir. 1959). 28. Sept. 7, 1916, ch, 458, 39 Stat. 742 (Title 5, $$ 751-756, 757-777,

779X791, 793 (FECA Amendments of 1949 Oct. 14, 1949, ch. 691, 63 Stat. 854 (Title 5, 88 751, notes, 752-764, 765 note, 767–769,

770 note, 771, 774, 776, 778-788, 790, 791-1 to 791-4, 793, 796. 29. 217 F. Supp. 384 (N.D. Cal. 1962). 30. Id. at 387.

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