Johnson v. United States
Johnson v. United States
Opinion of the Court
MEMORANDUM ORDER
I. Introduction
Plaintiff Arlene A. Johnson brings this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1988) (“FTCA”), alleging that Army physicians and medical personnel negligently misadvised her for almost four months that she had AIDS, which resulted in her having an unnecessary and unwanted abortion. The United States has moved to dismiss on the ground that this action is barred by the Feres doctrine, which prohibits service members from recovering for injuries sustained “incident to service” as a result of negligent conduct on the part of government personnel. See United States v. Johnson, 481 U.S. 681, 686, 107 S.Ct. 2063, 2066, 95 L.Ed.2d 648 (1987); Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950). The motion has been fully briefed by the parties.
II. Background
At all relevant times, plaintiff was on active duty as a member of the United States Army at the Walter Reed Army Medical Center (“Walter Reed”). On or about September 9, 1986, plaintiff donated blood to a public blood drive sponsored by Walter Reed. At that time, she was informed that her blood would be subjected to routine screening for the AIDS virus.
On or about October 8, 1986, Walter Reed doctors and other hospital personnel informed plaintiff that she had tested positive for AIDS. On that same day, Walter Reed personnel drew a second blood sample from plaintiff for the purpose of conducting followup ELISA and Western Blot tests.
In November 1986, prior to being notified of this error, plaintiff discovered that she was pregnant. On November 21, 1986, doctors at Walter Reed advised plaintiff that her child would most certainly be born with AIDS and would not live beyond five years. The doctors indicated that under these circumstances it would be better for plaintiff to have an abortion than to carry the child to term. As a result of this counseling, and for no other reason, plaintiff had an abortion on December 4, 1986. Two months later, plaintiff was informed by Walter Reed that there had been an “error” in the “paperwork” and that she did not have AIDS.
None of plaintiffs blood tests showed a positive AIDS result. In fact, the ELISA and Western Blot tests showed negative results. Thus, Walter Reed personnel never had any medical basis for advising plaintiff that she had AIDS.
Plaintiff, on October 5, 1988, submitted a claim for $750,000 to the Commanding General at Walter Reed. Her claim was rejected in a letter postmarked March 24, 1989. Plaintiff subsequently brought this action under the FTCA alleging that, because of the negligence of Walter Reed employees, she suffered an unnecessary and unwanted abortion, an unjustified invasion of privacy, and physical and mental pain, including serious and lasting harm to her psychological well-being. Plaintiff is not eligible for compensation for these injuries under any other statutory or administrative scheme.
III. Discussion
Under the Feres doctrine, the United States is not liable to service members under the FTCA for injuries that “arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146, 71 S.Ct. at 159; see also Johnson, 481 U.S. at 686, 107 S.Ct. at 2066; United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985). Three broad rationales underlie this doctrine. First, because of the federal relationship between the government and members of its armed forces, an “underlying federal remedy that provides ‘simple, certain, and uniform compensation for injuries’ ” should be applied. Johnson, 481 U.S. at 689, 107 S.Ct. at 2068 (quoting Feres, 340 U.S. at 144, 71 S.Ct. at 158). A second and independent rationale is the existence of generous statutory disability and death benefits for service-related injuries. Id. (footnote omitted). Third, suits brought by service members against the United States for injuries suffered “in
Plaintiff argues that her voluntary donation of blood at the blood drive was not “incident to service.” For several reasons, we agree. First, when plaintiff charitably donated blood on September 9, 1986, she was “under compulsion of no orders or duty and on no military mission.” Feres, 340 U.S. at 146, 71 S.Ct. at 159; cf Valdiviez v. United States, 884 F.2d 196, 198-99 (5th Cir. 1989) (donating blood during a military sponsored drive was not within the scope of a serviceman’s employment). Compare Johnson, 481 U.S. at 691, 107 5.Ct. at 2069 (decedent was killed while performing a rescue mission on the high seas, a primary duty of the Coast Guard of which he was a member). Second, the blood drive was open to the public, not a purely military event.
The United States places undue weight on Shearer, 473 U.S. 52, 105 S.Ct. 3039, in which the Supreme Court barred an FTCA claim based on the death of a service member who, while off duty and off the base, was kidnapped and murdered by another private. Shearer rested primarily on the third rationale behind Feres, that civilian courts should not “second-guess military decisions” where impairment of “essential military discipline” might result. Shearer, 473 U.S. at 57, 105 S.Ct. at 3042 (citations omitted). The plaintiff in that case alleged that commanding officers had failed to ex
Such choices are not called into question in this case. Plaintiffs allegations concern a simple “error” in the “paperwork,” not “complex, subtle, and professional decisions as to the composition, training, ... and control of a military force.” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973) (quoted in Shearer, 473 U.S. at 58, 105 S.Ct. at 3043). It is difficult to imagine how this lawsuit would involve us “in sensitive military affairs at the expense of military discipline and effectiveness." Shearer, 473 U.S. at 59, 105 S.Ct. at 3043. Rather, this case is more akin to Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), in which the injuries complained of, and deemed cognizable by the Supreme Court, were caused by the negligent driver of a military truck. See Shearer, 473 U.S. at 58, 105 S.Ct. at 3043; see also Atkinson v. United States, 825 F.2d 202, 205-06 (9th Cir. 1987) (medical malpractice case arising from prenatal care, while barred by first and second Feres rationales, did not involve the military discipline rationale, since prenatal care is not distinctly military in character), cert. denied, 485 U.S. 987, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988).
IV. Conclusion
Courts, which have considerable discretion in handling motions to dismiss, ordinarily grant them sparingly so as to ensure that plaintiffs are not improperly denied an adjudication on the merits. C. Wright & A. Miller, 5 Federal Practice and Procedure § 1349 at 541 (1969). Rule 12(b)(6) motions
In light of these standards and our discussion in the preceding section, the motion to dismiss must be denied. For reasons previously stated, we hold that the original donation of blood was not “incident to service,” and any liability arising therefrom is not barred by the Feres doctrine. We cannot say with certainty that plaintiff can prove no set of facts that will entitle her to relief. That is all that is required at this juncture for her complaint to survive the present motion. Plaintiffs ultimate right to recover, however, depends on her ability to establish that the proximate cause of her injuries was some foreseeable negligent act or omission attributable to the United States at the initial blood screening stage. Plaintiff has a heavy burden. This is because the correct medical advice she subsequently received was “incident to service,” and any claim for damages arising therefrom thus falls squarely within the Feres doctrine. See Feres, 340 U.S. 135, 71 S.Ct. 153 (barring two medical malpractice claims); Appelhans, 877 F.2d at 311-312 (“The majority of decisions in this and other circuits, especially since Johnson, have held that medical treatment at military facilities is ‘incident to service.’ ”) (citations omitted).
An Order consistent with the foregoing has been entered this day.
. Although the United States asserts that we lack subject matter jurisdiction, Rule 12(b)(1), Fed.R. Civ.P., plaintiff may well have stated a claim under federal law. Since the United States essentially challenges the validity of this claim, dismissal at the present time turns on whether plaintiff has stated a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). See Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S.Ct. 1441, 1443, 10 L.Ed.2d 605 (1963); see also Feres, 340 U.S. at 140-41, 71 S.Ct. at 156-57 (The FTCA confers jurisdiction where the United States "was immune from suit before; it remains for courts, in exercise of their jurisdiction, to determine whether any claim is recognizable in law.”).
. The screening was performed by an outside civilian laboratory.
. These tests are typically used to confirm an initial HIV-positive result.
. The doctor apparently discovered the error after further blood samples were drawn on January 29, 1987.
.Peacetime compensation schemes for service members require that the injury result in disability or death. See 38 U.S.C. §§ 331-351 (1988).
. At this point in time, plaintiffs status in our opinion was no different from that of a civilian walking into Walter Reed from off the street.
. This rule applies even when the medical condition for which treatment is sought was not caused by the service member's military status. See, e.g., Irvin v. United States, 845 F.2d 126 (6th Cir.) (prenatal care), cert, denied, — U.S.—, 109 S.Ct. 513, 102 L.Ed.2d 548 (1988); Del Rio, 833 F.2d at 286 (prenatal care).
. If the incorrect advice had been given to plaintiff during a routine, annual physical examination, her suit for medical malpractice would appear to be barred under the Feres doctrine. See Feres, 340 U.S. 135, 71 S.Ct. 153 (barring two medical malpractice claims); Appelhans, 877 F.2d at 311-312 (Most courts “have held that medical treatment at military facilities is 'incident to service.’ ”) (citations omitted).
.See supra note 5. While Shearer, a 1985 case, indicated that this factor “no longer controllfed]” in determining whether an action was barred, 473 U.S. at 58 n. 4, 105 S.Ct. at 3043 n. 4, the Supreme Court subsequently reaffirmed the importance of all three rationales underlying the Feres doctrine. See Johnson, 481 U.S. at 688-91, 107 S.Ct. at 2068-69.
. See supra note 1, where we explain why the United States’ motion is based on Rule 12(b)(6) rather than Rule 12(b)(1).
Reference
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- Arlene A. JOHNSON v. United States
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