Rayner v. United States
Rayner v. United States
Opinion of the Court
This suit was brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680 (1982), for the death of a serviceman allegedly caused by the doctors and staff of a military hospital. The district court granted summary judgment for the government. We affirm under the authority of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
Sergeant Benton W. Rayner, Jr. was serving on active duty with the United States Army at Camp Grayling, Michigan, when, on April 26, 1982, he was admitted to Mercy Hospital, Grayling, Michigan, with complaints of back pain. Due to his active duty status, he was transferred to Ireland Army Hospital at Fort Knox, Kentucky; he arrived at Fort Knox on May 1, 1982, and
After consulting with the Army doctor supervising his case, Sergeant Rayner elected to undergo a myelogram
Sergeant Rayner’s widow and children, the plaintiffs, brought this action for wrongful death against the United States pursuant to the FTCA. They alleged that the Army doctors could have prevented Sergeant Rayner's death through proper monitoring, diagnosis and treatment of his reaction to the isotonic metrizamide used during the myelogram procedure.
The district court granted summary judgment for the government because the alleged injury arose incident to military service and, thus, according to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and its progeny, was not actionable under the FTCA.
In the Feres case, the Supreme Court concluded that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”
The provision of benefits to soldiers because of their status as military personnel is considered “activity incident to [such] service.” Brown v. United States, 739 F.2d 362, 368 (8th Cir. 1984); Johnson v. United States, 704 F.2d 1431, 1438 (9th Cir. 1983). Military medical care constitutes such benefits; accordingly, suits by servicemen or their representatives for medical malpractice are barred by the Feres doctrine. See, e.g., Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Jones v. United States, 729 F.2d 326, 328 (5th Cir. 1984); Joseph v. United States, 505 F.2d 525 (7th Cir. 1974); Harten v. Coons, 502 F.2d 1363, 1365 (10th Cir. 1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975); Peluso v. United States, 474 F.2d 605 (3d Cir.), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973). In Shults v. United States, 421 F.2d 170, 171-72 (5th Cir. 1969), we affirmed the district court’s dismissal of a sailor’s medical malpractice suit against the government, stating in part:
it is obvious that the injured man could not have been admitted, and would not have been admitted, to the Naval Hospital except for his military status. He was there treated by Naval medical personnel solely because of that status. It inescapably follows that whatever happened to him in that hospital and during the course of treatment had to be “in the course of activity incident to service.”
The result, here, is not altered by the fact that Sergeant Rayner chose to undergo the particular course of treatment, the myelogram, rather than being ordered to do so. Elective medical procedures, like elective surgery, are “incident to service” for purposes of the Feres doctrine. Alexander v. United States, 500 F.2d 1, 4 (8th Cir. 1974), cert. denied, 419 U.S, 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975); Lowe v. United States, 440 F.2d 452, 453 (5th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L.Ed.2d 64 (1971). The judgment of the district court is, accordingly,
AFFIRMED..
. A myelogram is a visualization or photograph of the spinal cord after injection of a radio-opaque substance into the spinal arachnoid space.
. We note that "since a defense based on the Feres doctrine is premised on the notion that there is no jurisdiction to hear the claim as the United States has not waived sovereign immunity for that kind of suit, such [a defense] should be raised by a motion to dismiss for lack of subject matter jurisdiction.” Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1157 (5th Cir. 1981); see also Johnson v. United States, 749 F.2d 1530, 1532 n. 2 (11th Cir. 1985) (rehearing en banc granted). It follows that a court which accepts the Feres doctrine defense should label its dispositive order as a dismissal for lack of jurisdiction, as opposed to a summary judgment, which connotes a decision on the merits. Id.
. Johnson v. United States, 749 F.2d 1530 (11th Cir. 1985) (rehearing en banc granted), provides a comprehensive summary of the evolution of the Feres doctrine.
Reference
- Full Case Name
- Brenda J. RAYNER, for herself & minor children Brenton S. Rayner, Christopher S. Rayner & Bruce S. Rayner, as widow and surviving children of Sgt. Benton Ward Rayner, Jr. v. United States
- Cited By
- 12 cases
- Status
- Published