This immunity is granted to the public official because his duty is to the public and to the government and not to an individual. The court further found that the psychiatrist was performing both discretionary and quasi-judicial functions as an employee of the government (perhaps using the discretionary function exemption to the Federal Tort Claims Act 32 as a further reason for dismissing the action). Finally the court stated that the acts of medical personnel had previously been found to be immune from suit.33

In the Gamage case, as well as in Barr V. Mateo, the immunity doctrine was invoked with respect to defamation and libelous statements, as well as negligent acts. Therefore, this doctrine might not be limited to suits involving only medical negligence.

As the law stands now, if a Navy doctor were sued in his own name, and if a judgment were handed down against him, the United States Government would not be liable for the amount of such judgment. Legal representation would be afforded to him by the Department of Justice, because he was charged with negligent activity while acting within the scope of his employment by the United States. But, since he was sued in his own name, technically, he would bear the burden of paying the award. Some feel that a private relief bill would "automatically" be introduced before Congress, reported favorably by the Navy to Congress, and passed to afford him recompense for the amount he would otherwise have to pay pursuant to the judgment. This might be done, but as a matter of law it need not be done.

Legislation was proposed by the Department of the Army 35 which would amend the United States Code 36 by providing representation to all Federal employees (rather than only the motor vehicle operators) who are sued for damages as a result of negligent acts or omissions while acting within the scope of their employment. The bill would make the suit against the United States the exclusive remedy when the Federal Tort Claims Act provisions applied and would have protected Government medical and dental personnel who are constantly exposed to liability although they have no choice as to whom they treat. However, this bill was not enacted.

31. Hartline v. Clary, 141 F. Supp. 151 (E.D. S.C. 1956). 32. 28 U.S.C. 2680 (a).

33. Taylor v. Glotfelty, 201 F. 2d 51 (6th Cir. 1952); Brown v. Rudolph, 25 F. 2d 540 (D.C. Cir. 1928); Kendrick v. United States, 82 F. Supp. 430 (N.D. Ala. 1949). These suits all concerned mental illness, as did Gamage v. Peal, supra note 29.

34. 28 U.S.C. 1442 (a).

35. Department of Defense No. 88-52.

36. 28 U.S.C. 2679 (b).

Many Navy doctors and dentists prefer to be fully insured against liabilities. This insurance may save a medical officer time and money, and may avoid adverse publicity. An estimated 165,000 physicians in the United States carry professional insurance. Policies with coverage from $100,000 up to $300,000 for a single claim are not uncommon.37 Of course, the decision to insure or not insure is a personal choice to be made by each Navy practitioner.

When must these suits be brought against the United States? The statute of limitations under the Federal Tort Claims Act is two years." However, the Federal Tort Claims Act was intended by Congress to make the United States liable, “. . . if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 3 Because of this language in the Act, a conflict of opinion exists as to whether state or federal law governs the time from which the statute of limitations begins to run (in some cases the state statute is longer, in others shorter). There is also a serious conflict among the different states as to when a claim accrues. Some jurisdictions hold that the statute begins to run from the wrongful act, while others assert that it runs from the date the resulting damage develops.*0

The case of Hungerford v. United States "1 held that federal, not state law, determined when a claim accrued. This action was decided in the United States Court of Appeals for the Ninth Circuit. The Fifth Circuit agreed in Quinton v. United States.12 The court held there that state law determines when a cause of action comes into existence, but federal law governs the time for commencement of the statute of limitations. However, the First Circuit has held that the state law governs.43

The latest case, in the Second Circuit, follows the Ninth and the Fifth Circuits. In Kossick v. United States," an injury was inflicted on the plaintiff in 1950, while a patient at a Public Health Service Hospital. He was treated at the hospital until 1952, and seen as an out-patient occasionally after 1952. In April, 1963, the plaintiff brought suit under the Federal Tort Claims Act. In attempting to avoid the twoyear period of limitations of the Act, he contended that state law was determinative, and 37. Bernard D. Hirsh, Insuring Against Medical Professional Liability, at p. 131, Roady and Anderson, Professional Negligence (1960).

38. 28 U.S.C. 2401(b).

39. 28 U.S.C. 1346(b).

40. Annot., 80 A.L.R. 2d 368 (1961).

41. 307 F. 2d 99 (9th Cir. 1962).

42. 304 F.2d 234 (5th Cir. 1962).

43. Tessier v. United States, 269 F. 2d 305 (1st Cir. 1959).

44. 330 F. 2d 933 (2d Cir. 1964).

New York does not allow the statute to begin while the claimant is under "continuous treatment." The court rejected the plaintiff's contention and affirmed the lower court's order granting a motion for summary judgment.

Therefore, it would seem that the weight of authority is starting to favor the application of the federal rule and allowing the statute to begin when the claimant discovers, or should have discovered, the negligent acts.

In the past six years the United States has been sued 49 times for alleged malpractice by naval medical personnel or in Navy facilities (at the time of this writing). These suits may be categorized into several groups consisting of the type of negligence alleged, ie., an act or an omission. Because many of these cases have not been disposed of by judicial decision, but instead have been compromised by a settlement before trial, they consist of nothing more than allegations of negligence. It would not be proper to refer to these cases by name. Therefore, they will be discussed as numbered case histories. All illustrations were terminated adversely to the United States, either by judgment or by settlement.

They were used merely because they clearly depict the broad "danger areas." Just as many cases have been decided in the Government's favor.

Of these 49 suits, 20 were based on an alleged failure to correctly diagnose a disease or malady. This "failure to diagnose" has been alleged in cases involving tuberculosis, heart conditions, pneumonia, allergies, mental disease, eye, nose and throat conditions, brain tumors and many other organic diseases. Case History No. 1 was based on a failure of Navy doctors to diagnose an alleged tubercular condition. This suit involved a United States Marine Corps sergeant who was apparently suffering from tuberculosis at the time of his reenlistment physical. From the x-rays taken at that time it appeared the presence of the lung disease should have been noticed. Shortly thereafter, the sergeant's wife and children became infected. Suit was brought by the sergeant, his wife and children in the amount of $755,000.00, and it was compromised by the Government. The suit by the sergeant himself was voluntarily dismissed because of the Feres doctrine, that is, the inability of active duty personnel to sue under the Federal Tort Claims Act while acting "incident to their service." 45

Several other suits charging Navy doctors and medical personnel with "failure to diagnose" are presently pending in Federal courts.

45. Feres v. United States, supra note 22.

The outcome of these suits is uncertain.

Another classification of malpractice suits under the Federal Tort Claims Act can be titled "failure to properly treat." 46 Case History No. 2 involves alleged improper treatment following a cardiac arrest occurring on the operating table. The plaintiff, preparing to undergo exploratory surgery, "went into arrest" apparently at the time of the initial incision. Although no time checks were kept, the court, in finding for the plaintiff held that improper resuscitative procedures were used, and that, therefore, failure to restore the heartbeat within four minutes was a deviation from the generally accepted medical practices.

Within the classification "failure to properly treat" is the sub-category, "wrongful administration" of drugs and anesthetics. This includes writing improper prescriptions, improperly filling prescriptions, using unsterilized needles and other equipment, administering excessive doses of drugs and anesthesia, etc. Case History No. 3 illustrates this type of factual pattern. A young mother was brought to the hospital to deliver after a normal pregnancy. She was given a spinal anesthetic known as a saddle block. During delivery the patient went into cardiac arrest. A thoracotomy was performed, however the patient suffered permanent damage to the central nervous system due to anoxia which accompanied the cardiac arrest. Suit was filed by the patient's guardian. Specifically it was charged that the amount of anesthesia was excessive and that the mother was allowed to assume a prone position too rapidly after its administration, allowing the drug to rise in the spinal column. This case was settled by compromise.

Nonprofessional medical personnel have been charged with the failure to treat patients properly. Case History No. 4 concerned a suit by a maternity patient who suffered injuries in a fall in the lavatory. The plaintiff alleged that the attendant had been negligent in allowing her to visit the bathroom alone; she was still sedated following delivery and had asked for the attendant's assistance. Again, this case was settled by compromise before trial.

public. A Navy medical man, in some situations, fits into this category because of his relationship with servicemen and their dependents which is imposed by statute.48

Again, one should not lose sight of the fact that these suits are allegations of incorrect procedures and theory, and not proof of negligence. Many, many spurious suits are instituted. This type of suit, which has become a thorn in the side of the medical profession, is known as the "failure to cure" action. These are claims by plaintiffs who, although they have been treated in a most expert fashion, have not been cured of the malady, and consequently, assume that the doctor is at fault. Also in this category are claims by next of kin who believe that because the deceased is not alive today, there must have been some negligent treatment rendered to him, and so litigation is instituted. The defense of a malpractice suit involves work, time and money on the part of all concerned. When such a suit is filed without a firm basis, it constitutes a malicious act. The attorney owes it to his professional counterpart in the medical field to thoroughly investigate and to insure the fact that good grounds are present for such an action before he agrees to represent a plaintiff. If he actually and honestly believes that certain professional negligence might exist, then the institution of a suit will be a safeguard against future negligence. These suits constitute a "policing" of the medical profession.

However, in this

complex day and age, when experimentation is constantly necessary to cope with both old and new diseases, some doctors feel that they could save a life by using other than ordinary means of treatment. An action which is not properly based, that is, where obviously no negligence exists, will serve only to hamper the physician in his search for new and proper remedies of diseases. The result will be that the doctor, in order to avoid a later charge of malpractice, will constantly employ the older methods of treatment, although a life could possibly be saved by experimental action.

Medical treatment by service personnel is also hampered to a certain extent by the very nature of inpatient and outpatient treatment at the service hospitals which is necessitated by the large number of patients which must be seen by the relatively small number of doctors, dentists, nurses, etc., who are available. When a patient employs a civilian practitioner, that same doctor is the treating physician throughout the course of the relationship (he can, of course, call in other doctors or special

48. 10 U.S.C. 1074, 1076, 1077.

ists to render assistance). In a naval hospital, however, a patient may visit the hospital, for example, on a Monday and be seen by a doctor on duty in the Orthopedics Department. The patient, returning on Tuesday, may find the original doctor not on duty. Consequently, he must be seen by another doctor who starts anew with this patient relying only on the original doctor's notes. (Of course, this can be an advantage if the following physicians do not accept the previous diagnosis but conduct another examination satisfying themselves that the original determination was correct before they commence treatment. In this fashion, the patient's disease or injury is checked and double-checked.) Taking into consideration the large number of patients seen by a naval doctor during his working hours, it is not difficult to understand how some confusion might result. It is surprising to learn how little confusion does exist. These comments are not made to excuse negligence but rather to show the conditions under which the medical team in the United States Navy must work. These are facts which should be taken into consideration by plaintiff's attorneys before they rush in and blindly file a complaint against the Government and its doctors sounding in malpractice.

However, the medical or dental practitioner owes a reciprocal duty to the lawyer. Many plaintiff's attorneys and authors have "indicted" members of the medical profession for their failure to testify against one another-the so-called "conspiracy of silence." 49 Among the most vociferous opponents of this alleged "conspiracy" is the well-known claimant's attorney, Melvin Belli, who has discussed the problem in print on several occasions.50

Methods for circumventing the need for expert testimony have been suggested. These include the establishment of a case built on res ipsa loquitur and the use of medical textbooks (the latter is disallowed in most jurisdictions).51

Although a desire to protect their colleagues is understandable, doctors owe it to themselves and to their profession to see that approval by silence is not given to an obviously negligent act. When the treatment is clearly improper, doctors should willingly give expert testimony in court.

The technicalities of how acts of malpractice

49. Note, 9 Stan. L. Rev. 731, 733-35 (1957); Comment, 2 Vill. L. Rev. 95 (1956).

50. Belli, An Ancient Therapy Still Applied: The Silent Medical Treatment, 1 Vill. L. Rev. 250 (1956); Belli, "Ready for the Plaintiff" 30 Temp. L.Q. 408 (1957); Belli, "More on Being 'Ready for the Plaintiff'", 20 Ga. B.J. 451 (1958).

51. Stetler, Medical-Legal Relations-The Brighter Side, 2 Vill. L. Rev. 487 (1957).

may be avoided are subjects for medical men, not lawyers, and naturally, that topic is beyond the scope of this article. The lawyer's job begins as soon as negligence is alleged on the part of the doctor or dentist or other naval medical personnel. There are certain things, however, that can be done by people in hospitals and dispensaries throughout the Navy which can make the lawyer's job easier even before he steps into a case. These include the rendering of any immediate medical treatment which is necessary to alleviate the damages, and secondly, prompt and straightforward investigation of the injuries.

As soon as injury is even suspected everything possible should be done to alleviate the extent of the damage. As an example, let us suppose improper drugs are prescribed for a patient and upon consumption sickness results. As soon as this malady is discovered the antidote should be administered and the patient should be given all the hospital care and treatment necessary to bring the patient back to health as rapidly as possible. Quick treament of this type may be worth several thousands of dollars to the United States Government although a mere matter of minutes is involved. It seems that an admonition of this nature is so obvious that it is unnecessary to recite. However, experience shows that immediate corrective treatment, administered upon the making of a proper diagnosis, could have saved the United States considerable money and man-hours.

Adequate investigation is perhaps the most important aspect in the defense preparation. The Department of Justice attorneys begin their defense preparations with the investigative report furnished by the command involved. As soon as the injuries are discovered, administrators of hospitals should insure that immediate inquiry is conducted into every circumstance surrounding the claim. This means that competent people should be appointed and given free rein to look into all aspects of the injury. The investigation should be as objective as possible. Attempts to give an interpretation other than that indicated by the facts will certainly show up later, perhaps at the trial, and eventually could be quite costly. All naval personnel connected with the injury should be questioned, and at the very least, should give statements concerning their actions in connection therewith. Intelligent and concise opinions and recommendations, with the reasons therefor, are very helpful for lawyers at a later date. These opinions (by doctors) are in a sense expert testi

mony upon which the Government attorney can rely. Technical descriptions, with explanations understandable by laymen, are important. The type of fact-finding body selected for the investigation should be governed by the applicable section in the JAG Manual.52

The chart on the following page is a breakdown of the medical tort litigation involving the United States Navy. For an additional indication of what is involved, the Annual Report for the Secretary of the Navy for Fiscal Year 1962 (the latest such report in which the following figures are available) reads as follows:

Somewhat under 12,000 patients occupied beds in worldwide Navy medical facilities each day during the year. Of every 100 patients in naval hospitals ashore, 65 were active duty Navy and Marine Corps personnel. An additional 20 were dependents of the Uniformed Services, while the remainder were Army and Air Force members, retired personnel, Veterans Administration beneficiaries, and supernumeraries treated for humanitarian reasons. Owing to the fact that servicemen have married younger and have more children than formerly, the number of dependents eligible for care in military or civilian facilities has steadily increased.

53

Many more patients are handled on an outpatient basis. Understanding the fantastic amount of patient contact, and realizing the relatively small number of tort suits resulting therefrom, one can readily see the wonderful job being done by the United States Navy medical team. It is hoped that this discussion will have some future preventive effect.

52. JAG Manual, section 0205.

53. The Annual Report for the Secretary of the Navy for Fiscal Year 1962, p. 249. (Continued on following page)

NAVAL WAR COLLEGE

(Continued from page 86) or both of the Naval War College's "Package Plans" of extension courses, as follows:

(1) "Naval War College Command and Staff Extension Graduate (Primary)." Indicates satisfactory completion of the following courses: National and International Security Organization, Command Logistics, Military Planning, Naval Operations.

(2) "Naval War College Command and Staff Extension Graduate (Advanced)." Indicates satisfactory completion of above plus Counterinsurgency, Strategic Planning, and either International Relations or International Law.

The extension courses described above are available to all officers of the U.S. Armed Services of the grade of Navy lieutenant (or equivalent) and above, active or inactive-with a liberal waiver policy in effect even as to this grade requirement. For further information, write to the Extension Education Department, Naval War College, Newport, Rhode Island 02844.

strued to constitute a "veiled threat" to court members.54 The distinction discovered by Chief Judge Quinn was based, at least in part, upon testimony to the effect that court members within the convening command had not been discharging their judicial obligations in accordance with the UCMJ. Consequently, in this case the reference to fitness reports was considered to have been in the nature of a preventative measure prompted by unusual conditions prevalent within the command.

While it is only with considerable trepidation

54. See United States v. Littrice, supra note 38; United States v. Isbell, 3 USCMA 782, 14 CMR 200 (1954).

that an attempt has been made to segregate affirmatively those communications that have been declared unobjectionable by the USCMA, some measure of confidence may attend an effort to isolate negatively those communications the subject matter of which has not enjoyed the sanction of the Court. As a general rule, then, pre-trial discourse between command and court members has been enjoined as impermissible by the USCMA if the substance of the contested remarks (1) includes erroneous or coercive statements in some manner pertaining to military justice; or (2) refers either directly or indirectly to a particular case or, in certain