The recent horrendous murder of innocent civilians, including women and children, by an Army soldier in Afghanistan raises many questions as to how the United States will proceed once its investigation is completed.  One of those questions involves compensation for the families of the dead and injured. Is there a legal vehicle which allows the American Army to pay damages to these families?  Yes, there is.  The Foreign Claims Act, 10 U.S.C. 2734, is a statute that allows payment for negligent or willful acts committed by U.S. service members in a foreign country whether the service member was acting in or out of the scope of his employment. Clearly the assailant here was not acting within the scope of his employment.  Still the Foreign claims Act allows the United States to provide compensation to the surviving families.  The law of the place of the injury (Afghanistan) will determine the nature and amount of damages. While combat claims are excluded under the Foreign Claims Act, these murders are arguably not covered by that exclusion because they were definitely not committed pursuant to combat operations.

Regardless of the ultimate disposition of the accused soldier’s case, the surviving families are still entitled to compensation under the Foreign Claims Act. In all likelihood the American military command, the State Department, and the Afghan government will work closely to arrive at a settlement satisfactory to all the parties knowing full well that no amount of money can compensate for the tremendous losses suffered.  Fair and timely settlement will be an important component of trying to reestablish positive relations with the Afghan people.

A few weeks ago, two American Army officers were shot to death as they sat at their desks inside the Afghan Interior Ministry in Kabul, Afghanistan, apparently by a rogue Afghan security officer.  The killer escaped and has not been apprehended.  These murders followed a similar incident two days earlier when two U. S. soldiers were gunned down by an Afghan soldier in Eastern Afghanistan.  This brings to 36 the number of American and NATO troops who have been killed by Afghans wearing official police or army uniforms in the last 13 months.   While others must consider how these recurring incidents will impact NATO’s ongoing strategy and effort in Afghanistan, I would like to consider the legal ramifications for the families of these victims of terrorism.  Can these families sue anyone or any entity to secure money damages for the loss of their loved one?

Because the Feres doctrine bars all military personnel from suing the United States for negligent and wrongful conduct resulting in injury or death, these victimized families have no cause of action against the United States, i.e., for negligent failure to provide for the safety of their soldier husband, father, or son.  Likewise, the doctrine of sovereign immunity shields the government of Afghanistan from liability as well. There are statutes, however, that allow tort actions against the actual perpetrators and/or the terrorist organizations that sponsor them.

The Anti-Terrorism Act, 18 U.S.C. 2333, permits victims of torture or murder perpetrated as acts of “international terrorism” to recover damages in tort actions filed in United States federal court.  This law applies to injuries sustained in the United States or abroad.  This Anti-Terrorism Act allows plaintiffs to sue not only natural persons but also responsible organizations.  Since the Taliban has claimed responsibility for virtually every killing described above, the families of the deceased soldiers could bring an action against this organization and seek treble damages.  Of course, collecting on any judgment awarded is the major challenge.

There is a second statute that might also provide a cause of action in such cases.  It is called The Torture Victim Protection Act, 28 U.S.C. 1350.  This statute also provides remedies for acts of torture and murder.  Ironically, the United States Supreme Court heard oral argument on February 28, 2012, in a case which challenges the applicability of this statute to terrorist organizations.  In Asid Mohamad, et al. v. Palestinian Authority and Palestine Liberation Organization, the Supreme Court must decide whether The Torture Victim Protection Act applies to both “individuals” AND organizations.  There is no question that the statute applies to individuals who commits acts of torture and murder.  Whether it applies to organizations is the question before the court.

What the two statutes above clearly provide is a cause of action for money damages against individuals who commit, aid, and abet the unlawful killing of American soldiers by their presumptive “allies.”  While securing a judgment against the trigger man, and collecting on it, is highly unlikely, the possibility of doing so against an Afghan government official who aids and abets in such fratricide is indeed  possible.  For instance, in the case of the murdered Army officers there are serious unanswered questions as to how the gunman obtained access to one of the most secure venues in Kabul, i.e., the Afghan Interior Ministry.  Moreover, how is it that the gunman was able to escape without detection?  If a government official aided and abetted this terrorist act, then a presumptive case could be brought against him under the statutes described above.  Given the corrupt nature of many Afghan officials and the huge sums they have pilfered from the United States, there is a very real possibility that money could be identified and extracted from such an accomplice to pay any judgment obtained against him.

Recently a veteran was shot and killed at the VA Medical Center in Richmond, Virginia.  The incident occurred in the early morning outside the hospital when a veteran presented for his cancer treatment.  He was confronted by an individual in the parking lot who had a personal vendetta against him.  The veteran was shot and died the next day.  This tragic event raises multiple legal issues.  First and foremost, can the veteran’s family sue anyone for his death?  The answer is yes.  The murderer certainly can be sued under the Virginia wrongful death statute.  However, it is unlikely that much of a recovery will be secured given that the triggerman will probably spend the remainder of his life in prison.  The more interesting question is whether the veteran’s family can sue the United States for his death since the incident occurred on government property?  The answer is probably no.

The Federal Tort Claims Act, the law that allows citizens to sue the United States government for injury, specifically exempts any injury that occurs as a result of an intentional tort such as assault and battery.  Even if the triggerman in this instance had been an employee of the VA, which he was not, any action against the government would be barred.  However, that bar would not apply if the claimants could prove that VA negligence was a proximate cause of the vet’s death.  For example, if one could prove that the VA was aware that the triggerman was on the hospital grounds with a loaded weapon and took no action whatsoever to intervene, then a possible action might apply.  Success in such a case would turn on the facts.  What is important here is that the case would not be based on the triggerman’s wrongful conduct but rather on the VA’s NEGLIGENT conduct.

Today it was reported that seven Marines were killed when two military helicopters collided over the Yuma Training Range Complex on the Arizona-California border.  The Marine Corps is conducting an investigation. This terrible tragedy raises multiple legal issues which will eventually have to be addressed by the Marine Corps and the survivors of the deceased Marines.

Because the Marines killed were on active duty when the accident occurred, their families are barred from filing a negligence claim under the Federal Tort Claims Act.  The longstanding Feres doctrine enunciated by the Supreme Court limits any damage recovery by the families to military and VA benefits.  Of course, those families will also be entitled to the $400,000 SGLI insurance coverage applied to all military members who die on active duty.  There is, however, one other possible source of recovery.  If the accident was caused by a defective design or mechanical part contained on either helicopter, the families could file a claim against the manufacturer and seek damages under a products liability theory.  Such claims can be successful depending on the facts.

Aircraft manufacturers are liable for any defective product they produce even if that product is sold to the government.  Military members injured or killed as a result of such defects are entitled to sue the manufacturer just like any other citizen.  In most such cases, however, the manufacturer will interpose the “government contractor defense” to avoid liability.   The government contractor defense states that a manufacturer can hide behind the Feres doctrine if it can prove that the product causing the accident was built to the government’s specifications or was inspected by the government and accepted for delivery.  This is a very sophisticated defense which turns on technical facts and expert evidence.  Still, numerous military families have recovered damages against defense contractors, and this theory of liability should always be investigated.

In Levin v. United States of America, the United States Court of Appeals for the Ninth Circuit upheld the dismissal of a claim for battery arising from the alleged performance of ocular surgery without the patient’s consent. The court held that “the Gonzalez Act makes the [Federal Tort Claims Act (FTCA)] the exclusive remedy for tort actions against military medical personnel.” Furthermore, the court stated that the FTCA preserves the government’s “sovereign immunity against ‘[a]ny claim arising out of . . . battery.’ 28 U.S.C. § 2680(h).” Thus, the plaintiff lacked a basis for recovery against either the United States or the individual physician.

The Ninth Circuit specifically rejected the plaintiff’s contention that the Gonzalez Act waives the United States’s sovereign immunity for battery claims arising from medical care. 10 U.S.C. § 1089 (e) provides that “[f]or purposes of [the Gonzalez Act], the [FTCA’s preservation of immunity against battery claims] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions.” The court concluded that subsection (e) is “not . . . a waiver of sovereign immunity for battery claims brought against the United States, but . . . an expression of personal immunity from battery claims brought against military medical personnel.”

In so holding, the Ninth Circuit joins a minority of courts immunizing the government and its physicians for the most extreme and indefensible cases of medical malpractice

The Ninth Circuit’s opinion and the details of the case can be read here: http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=In%20FCO%2020111123144.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

There has been a recent string of cases where members of the active duty military that have found themselves the victims of medical malpractice and negligence at the hands of military doctors and medical professionals have attempted to sue the government, despite the Feres Doctrine shielding the government from such action, in an attempt to get compensation for their injuries. It had been the hope of many of these cases to set a new precedent through legal challenges to the Feres Doctrine, but a growing number believe there is another way.

Instead of trying to set a legal precedent, there has been talk of Congress taking action that while not eliminating Feres, would make exceptions for thinks like medical malpractice suits by active duty military and their families. Congress has tried this in the past, with Rep. Maurice Hinchey (D-NY) most recently authoring a bill in 2009, but it’s not known if the current makeup of Congress will allow such a bill to pass.

A big problem with military medical malpractice is that, strictly speaking, military servicemen can’t file a claim against the United States government. This rule stems from a court case in 1950, Feres v. United States. This court case was actually a combination of three different court cases where active duty servicemen, or their families, were filing suit against the government for personal injury or wrongful death.

The court decided that the US government was protected against Tort Liability claims from active duty servicemen, but did leave in some allowances, specifically, that their families could file claim if they were the injured party, and that the servicemen could file a claim on behalf of a family member that could not file themselves.

That being said, the Feres Doctrine is the main case cited when looking at why a claim from an active duty servicemen was denied. Claims that have to do with medical malpractice are handled by the Veteran’s Affairs office, but again, no claim can be filed.

The Tennessee Veteran’s Home is a nursing home for retired veterans of the military which five years ago was under investigation by the Department of Justice for failing to properly care for their patients, some of which they were found to have contributed in their deaths. Now it’s happening all over again.

In March of last year Thomas Grelen, an Army Air Force veteran, recently fell, breaking his leg in several places which ended up requiring that the leg be amputated. Several days after the surgery to remove his leg, the retired Staff Sargent died.

Despite notations in his medical chart that he was prone to falling, at the time of his injury he was being attended to by only one female technician, who didn’t assist him enough in his attempt to sit down on his bed. He slipped off and his leg severely broke, being pinned underneath him. He was left in this position until the paramedics arrived 20 minutes later.

Thomas’ family sued the Veteran’s Home for negligence, medical malpractice, and breach of standards of care, which opted to settle out of court for $245,000 (the family sought the maximum of $300,000 when they first sued) rather than go to trial.

Two years ago Senior Airman Colton Read was an imagery analyst for the Air Force. Deciding to have elective surgery on his gallbladder to relieve him of chronic pain so that he could deploy to a warzone, Read came out of surgery missing both of his legs.

During the procedure, which was supposed to be routine, a resident punctured a major blood vessel, resulting in blood flow issues which caused the tissue in his legs to begin to die. The doctors were forced to amputate both of his legs, just above the knee and one at mid-thigh.

Thanks to the Feres Doctrine, the Air Force is preventing Read from collecting $100,000 from the Servicemember’s Group Life Insurance traumatic injury program to help alleviate the new costs associated with having to live without his legs.

The Feres Doctrine “protects” the Air Force by preventing Senior Airman Read from taking legal action against his military doctor or the hospital. Now, instead of a fulfilling career serving his country, Read can’t even get the funds he needs to help himself and his family in their time of need.

As previously reported here, Staff Sargent Adam Cloer had filed a medical malpractice suit after doctor’s failed to diagnose his wife’s rectal cancer, even though she presented with the typical symptoms. The case had been settled, but only now are the details coming out.

While pending the signature of the US Attorney General, the claim has been settled for $2.15 million and the Staff Sargent was able to file the claim because of a loop-hole in the Feres Doctrine, which typically prevents military personnel from filing suit against the government for malpractice by military doctors.

The Feres Doctrine doesn’t apply to the families of military personnel, only the personnel themselves, so while Staff Sargent Cloer did in fact file a claim, it was on behalf of his wife, who was not in the military herself.