Petition for Writ of Certiorari — Jacobs v. United States

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In the Supreme Court of the United States

October Term, 1984

Jean Marie Jacobs, as Executrix of the Estate

of Thomas L. Jacobs, deceased,

Petitioner,

ws

The United States of America,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

Michael Parham

Andrew L. Abrams

Counsel for the Petitioner

P.O. Box 2547

508 East North Street

Greenville, S. C. 29602

(803) 271-2270

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

QUESTIONS PRESENTED

1. Whether the, doctrine of Feres v.

United States, 340 U.S. 135 (1950) serves

as an absolute bar to medical malpractice

actions brought pursuant to the Federal

Torts Claim Act. 28 U. S. C. Section 2671

et seg, solely because the deceased

suffered the injuries from this malpractice

while on active duty status during

corrective surgery which was neither

"in the line of duty” nor "incident to

service"?

(I)

TABLE OF CONTENTS

Page

Opinions Below....... ‘aces es Tre rr. 1

JUPESELSOEBOR « s «6 ess eseevbecen dann cbene 1

Statutes Lave lVOGs «6 a'séctes cee seit wres 1

Statement .«cevscsevsseas haba evun“ees #4 2

Reason for granting the Petition.... 5

1. The United States Court

of Appeal for the Fourth

Circuit has rendered a

decision in conflict with

the guideli»e and factors

set forth by the United

States Supreme Court in

that body of cases giving

rise to the so-called

Feres Doctrine, by

utilizing the mere "duty

Status" as the determinative

criterion.

Conclusion..... TETTCTS LTTE CC CT Ce ee 20

Appendix A...... WeeTercerccct otc re re la

AppeNGix Bassisswece Terre ere Terre e

Appendix. Cisisacscses rte ys ere ee eee e 24a

Appendix Di iiccisasesane were rs bvteee 26a

(II)

Appendix

Appendix

Appendiix

Appendix

Appendix

Appendix

Cases:

(III)

TABLE OF AUTHORITIES

Brooks v. United States

Pe ye ee OS ee

Chappel v. Wallace

103 S. Ct. 2362 (1983) ...ssoe-

Dalenite vs. United States

346 U.S. 15 (1953)..........-..

Feres v. United States

Dn aie. Dee SO. peepee cecese

Indian Towing Co. v. United

States

Bee See A CAPSS) occ ececevers

United States v. Brown

en PD Re. ore

United States v. Muniz

‘yo fw Pee: ee | ee

Statutes:

28 U.S.C. Section 2671 (App.H)

28 U.S.C. Section 2674 (App.TI)

10 U.S.C. Section 1089(a) (App.J)

OPINIONS BELOW

The opinion of the United States

Court of Appeal for the Fourth Circuit

(App.A) is an unpublished decision. By

the Order of the United States District

Court for the District of South

Carolina, Greenville Division (App.B)

is likewise an unreported opinion.

JURISDICTION

The opinion of the United States

Court of Appeals for the Fourth Circuit

was filed on September 27, 1984. The

jurisdiction of this court is invoked

under 28 U.S.C. 1254 (1).

STATUTES INVOLVED

~28 U.S.C. Section 2671 (App.H)

28 U.S.C. Section 2674 (App.TI)

10 U.S.C. Section 1089(a) (App.J)

(1)

(2)

STATEMENT OF THE CASE

The Petitioner, Jean Marie Jacobs,

acting as Executrix of the Estate of her

deceased husband, Thomas L. Jacobs, brought

this medical malpractice action alleging

that the commission of malpractice by the

agents and servants of the Respondent United

States of Amercia resulted in the wrongful

death of her husband. This action was

instituted in the United States District

Court for the District of South Carolina,

Greenville Division, pursuant to 28 U.S.C.

Section 1346 (b) and the Federal Torts Claim

act (FTCA), 28 U.S.C. Section 2671, et seq.

The Plaintiff's deceased was a Major on

active duty in the United States Air Force

in Sumter, South Carolina, when he elected

to undergo elective open heart surgery to

repair a congenital heart defect at Wilford

\ 2)

Hall Medical Center at Lackland Air Force

Base in San Antonio, Texas. The Plaintiff's

deceased was placed on temporary duty status

("TDY") at Wilford Hall Medical Center for

the purposes of performing this corrective

Surgery. The Plaintiff alleges that during

the course of this surgical procedure the

military physicians at Wilford Hall Medical

Center negligently. ligated the left

circumflex branch of the decedent's

coronary artery, which was neither diseased

nor involved in the planned operative

procedure, with this negligent ligation

directly and proximately causing’ the

decedent's death.

The Defendant filed an Answer and

th

thereafter filed a Motion to Dismiss or

Summary Judgment pursuant to Federal Rule

of Civil Procedure 56(b). On November 23,

1983, the United States District Court

(4)

issued its Order granting the Defendant's

Motion for Summary Judgment and Dismissing

the Plaintiff's Complaint, concluding that

the Plaintiff's claim was barred by the

so-called “Feres Doctrine”.

Thereafter, the Plaintiff appealed

this decision to the United States Court

of Appeals for the Fourth Circuit, pursuant

to 28 U.S.C. 1291. The United States Court

of Appeals issued its opinion on September

27, 1984, affirming the decision of the

United States District Court, and likewise

concluding that the prior decisions of the

United States Supreme Court constituting

the "Feres Doctrine", bars the Plaintiff's

claim.

The Plaintiff, faced with the prospect.

of receiving only veterans benefits from

the United States Government in the combined

amount of Three Hundred Twenty-three

(5)

($323.00) Dollars per month, has brought

this Petition for a Writ of Certiorari

pursuant to 28 U.S.C. 1254 (1), seeking an

issuance of a Writ to the United States

Court: of Appeals to insure the proper

adjudication of this matter.

RESAONS FOR GRANTING THE PETITION

The United State" Court of Appeals

decided a substanial federal question in

a way contrary to the decisions of this

Court in Feres vs. The United States, 340

U.S.C. 135 (1950), and those subsequent

cases giving rise to the "Feres Doctrine."

The underlying basis for the

Defendant's Motion to Dismiss and for

Summary Judgment. was the erroneous

contention that if, at the time of is

negligently performed elective corrective

surgery, the Plaintiff's decedent was

Classified under a duty status that could

(6)

ke deemed "active", any action under the

Federal Torts Claim Act by nis Estate would

be automatically barred by Feres. The

United States District Court and the United

States Court of Appeals in the present case

both adopted this mechanical and overbroad

extension of the "Feres Doctrine."

The Federal Torts Claim Act is devoid

cf any reference to a statutory or

constitutional bar or waiver of an action

against the United States by a member of

the military service. Rather, the "Feres

Doctrine" was merely a judicial interpre-

tation of the Federal Torts Claim Act set

down by the United States Supreme Court in

1950 in Feres when it held that:

",..[{t]he Government is not liable

under the Federal Tort Claims Act for

injuries to servicemen where the injuries

arise out of or in the course of activity

incident to service." 340 U.8« 135, -146

(1950).

Nevertheless, subsequent Courts have,

on occasion, recognized that a mere demon-

stration that the Plaintiff is in military

service does not, per se, act as an absolute

bar to recovery. Utilizing the various

guidelines and tests espoused in these

subsequent cases, as well as the underlying

principles and policy motives which gave

rise to Feres, it is submitted that the

United States Court of Appeals erred in

finding Feres to constitute an absolute bar

Simply upon the basis that the Plaintiffé's

decedent was on “active duty”. Only if that

Classification of duty § status (i.e.

"active") is the determative factor which

results in a violation of those policy

motives set down as the basis of Feres,

should duty status form the basis of this

(8)

bar. In the present case, there is no

requisite correlation between the

decedent's duty status and the underlying

principles of the "Feres Doctrine”.

The only factual information before

the United States District Court and United

States Court of Appeals was provided in the

Affidavit of Appellant (App. G) and the

Plaintiff's Answer to Request for Admission

(App. E) which was filed in response to the

Defendant's request for Admission (App. D).

In the framing of the Respondent's Request

for Admission, it is clear that’ the

Respondent 's true position is that the Court

has no discretion except to apply a purely

mechanical fo mula to the Petitioner's

Claim. This request asked for an admission

that "Thomas L. Jacobs was on active duty

in the United States Air Force, and was

subject to military discipline and to

military control", to which the Plaintiff

(9)

admitted only that "Thomas L. Jacobs was

employed by the United States Air Force,

with the remainder of the Request of

Admission being denied

Further, in her Affidavit of

Appellant, the Plaintiff swore, “during no

period of time while at Wilford Hall in

either March of 1981 or May of 1981, did

the decedent perform any military

service-related activities” and neither

"was the decedent given any military orders

or commands.”"(App. G). Therefore, it is

respectfully submitted that because the

Petitioner's deceased traveled to Wilford

Hall soley for the purpose of undergoing

voluntary elective surgerical procedure,

that the implementation of a “duty status"

standard is in direct viclation of the prior.

opinions of this Court.

In Brooks v. United States, 337 U.S.C.

49 (1949) the United States Supreme Court

(10)

recognized that the mere fact that a

claimant is a member of the United States

Armed Forces when he sustained an injury

or loss as a result of the wrongs of another

member of the Armed Forces, does not, of

itself, preclude recovery under the Federal

Tort Claims Act. Instead, the Courts have

consistently required that the status of

the Plaintiff in the military be accompanied

by some additional inter-relationship

between what the Plaintiff was doing at the

particular moment of injury and his military

status. Additionally, this inter-relation-

ship has been couched in terms of injuries

arising out of the “line of duty" or.

injuries arising “incident to military

service.” The implementation of a new

"active duty” standard is contrary to the

prior holdings of this Court and the

underlying rationale of these decisions.

The first rationale utilized by the

(11)

Supreme Court was the absence of a

soldier-government analogy existing in

present day (1950) liability law. This was

an attempt by the Feres Court to look to

the language of the Act which subjects the

United States to the same measure of

liability as would confront a private

individual under like circums*.ances. The

Court found that military servicemen's

claims were lacking, reasoning that private

persons do not possess such authority as

the government has in the echelons of

command. Although, the Supreme Court

attempted to extend this rationale of

analogous private liability as a basis for

creating an arbitary bar to recovery ina

non-military context Dalehite v. United

States, 346 U.S. 15 (1953), this narrow

interpertation of the FTCA was struck down

by the Court only two (2) years later in

Indian Towing Co. v. United States, 350 U.S.

(12)

61 -€295S) . It is respectfully submitted

that the recognition by the Court that in

Indian Towing, supra that an absolute bar

in the non-military context would frustrate

the Act's objective of reducing private

bills and relieving the injustices caused

by sovereign immunity. Further, the

thirty-four (34) years of litigation

experience now makes immunity the exception

rather than the rule and totally discredits

the applicability of the first Feres

rationale.

The second rationale of Feres was the

declared unfairness to the soldier of

resolving his claim against the Government

pursuant to the law of the state where the

alleged wrong occurred, given the soldier's

inability to select his duty station.

Obviously, the Petitioner would much prefer

to apply the law of the State of Texas,

(13)

including its law of conflicts rather than

to have no tort action at all.

Thirdly, the Court found again that

it would be unfair to the serviceman to

force him to be bound by a policy of applying

law based upon a geographic location. The

basis for this principle was that in many

states work-connected injuries were covered

by a Workmens' Compensation Statutes with

no resulting tort liability. Further, of

those states where state law would permit.

tort recovery, the available defenses and

amount of recovery would vary dramatically

from state to state, thus subjecting the

soldier-claimant to a geogtaohic consid-

eration over which he had no control.

Again, the possibility of a tort recovery

in the present case, regardless of the law

imposed by geography, is certainly

preferable to no recovery at all. Further-

(14)

more, the analogy between state Workmens'

Compensation assistance requires the Court

to assume some exclusivity clause. A

Similar exclusivity clause is not contained

in the Veterans Benefits Act (38 U.S.C.

740), and, therefore, the third rationale

is not violated by the Petitioner's present

action.

Fourthly, it has been said that one

(1) reason for the Feres result was the

availability of veteran's benefits for

service-connected injuries. This rationale

is without merit when applied to the

Plaintiff's litigation, since the

Plaintiff's decedent left as surviving

beneficiaries his wife and two (2) young

children. This family receives from the

United States Government in Veterans

Compensation and indenmity, the sum of Three

Hundred Twenty-three ($323.00) Dollars per

month which reduces to Two Hundred Fifty-

(15)

five ($255.00) Dollars per month on October

20, 1991 and -0- Dollars as of December 28,

1993 (App. F). The Plaintiff's deceased

was a Thirty-two (32) year old practicing

endodontist at the time of his death and

unquestionably his present earning capacity

and future earning potential was far

superior to the veterans benefits available

to the Plaintiff and her family.

It has now been recognized that the

primary rationale behind the "Feres

Doctrine" which remains viable is the

impropriety of imposing state law on the

distinctively federal relationship between

a-soldier and his government. This

rationale is generally referred to as the

"maintenance of military discipline"

consideration and has been most recently

reiterated in the case of Chappell v.

Wallace, 103 S. Ct. 2362 (1983) in which

the Court concluded:

(16)

"The need for unhesitating and

decisive action by military officers and

equally disciplined responses by enlisted

personnel would be undermined by a

judicially-created remedy exposing officers

to personal liability at the hands of those

they are charged to command."(Chappell, p.

2363)

The question then becomes whether or

not this admittedly proper goal is

rationally furthered by a bar against

technically active duty servicemen injured

by negligent medical treatment rendered for

non-combat related, nontraining related and

non-military related disorders. Obviously,

military discipline could in no way erode

as a result of the maintenance of the

present action. There is neither an erosion

of military authority nor the ability to

command in allowing an individual to

maintain a lawsuit against his military

physicians when at the time of the alleged

negligence that individual was being

Operated upon while under general

(17)

anesthesia. In this factual setting there

were no military objectives which required

decisive action by a military officer and

no order could have been given’ the

Petitioner's decedent for which the

decedent would have been able to respond.

Based upon the above-stated rationale,

the United States Supreme Court has adopted

a "line of duty" standard as opposed to the

"active duty” standard utilized by the

United States Court of Appeals in the

present case. In the case of United States

v. Brown 348 U.S. 110 (1954), the Court held

as follows:

"We adhere also to the line drawn in

the Feres case between injuries that did

and injuries that did not arise out of or

in the course of military duty." (Brown

p.113)

Subsequently, the Supreme Court again

reiterated its adherance to the "line of

duty" standard as revealed in the statement

of the Court in United States v. Muniz 374

(18)

U.S. 150 (1963) where the Court concluded:

"In the last analysis, Feres seems best

explained by the peculiar and _e special

relationship of the soldier to Ris

Superiors. The effects of the maintenance

of such suits on discipline, and the extreme

results that might obtain if suits under

the Tort Claims Act were allowed found

negligent orders given or negligent acts

committed in the course of military duty."

This “line of duty" standard continues to

be implemented by the Supreme Court and,

therefore, the application of an "active

duty" standard is in direct violation of

the prior decisions of the Court.

Had this "line of duty" standard been

implemented, the Petitioner clearly would

have been allowed to proceed with her action

Since the operation undergone by the

Petitioner's deceased was not the result

of any injury incurred in battle, military

exercise or other related military

incident. Rather the decedent was

undergoing a purely elective surgical

procedure for the repair of a congenital

(19)

heart defect and was plaed on temporary duty

status as a mechanism for transfering the

decedent from Shaw Air Force Base where he

practiced as an endodontist to Wilford Hall

Medical Center. This transfer was at the

request of the decedent and was not for the

‘purpose of performing any function for the

United States (App. G).

Lastly, it must be noted that at the

time of the Feres decision in 1950, 10

U.S.C. §109, which now grants total immunity

to military physicians guilty of medical

negligence while treating military

personnel, was not in existence. In 1950

and prior to the passage of the afore-

mentioned act, a serviceman barred by Feres

from recovery against the United States

could still bring a subsequent legal action

against the individual physician. Now,

neither the serviceman nor his family has

any remedy, either individually or against

(20)

the United States should the “active duty”

standard of the United States Court of

Appeals be implemented.

If the decision of the United States

Court of Appeals stands, then a new standard

will have been implemented in direct

conflict with the "Feres Doctrine" as

established by the prior decisions of the

Court, in that recovery will be barred

irrespective of whether or not the negligent

acts occurred either "in the line of duty"

or "incident to military service."

CONCLUSION

A review of the opinion below is

necessary to insure the proper application

of the standard and rationale of the "Feres

Doctrine" and to resolve the conflict of

the prior cases of this Court with the new

"active duty" standard implemented by the

lower Court. Accordingly, the Petitioner

eS Sr eee

a

(21)

would respectfully request the issuance of

a Writ of Certiorari to the United States

Court of Appeals to consider the questions

presented together with all subsidiary

questions fairly included therein.

Respectfully submitted.

MICHAEL PARHAM

ANDREW L. ABRAMS

Abrams, Bowen & Parham

P.O. Box 2547

508 East North Street

Greenville, S. C. 29602

803-271-2270

December 19, 1984

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 83-2156

Jean Marie Jacobs, as Executrix of

the Estate of Thomas L. Jacobs,

deceased, Appellant.

- versus -

The United States of America, Appellee.

Appeal from the United States District

Court for the District o£ South Carolina,

at Greenville. G. Ross Anderson, Jr.,

District Judge. (C/A 83802)

Argued: August 7, 1984. Decided: Sept.27, 1984

Before RUSSELL, HALL AND CHAPMAN, Circuit Judges

Michael Parham (Andrew L. Abrams, Abrams,

Bowen and Parham on brief) for Appellant;

John B. Grimball, Assistant United States

Attorney, for Appellee.

2a

PER CURIAM:

This is a medical malpractice action

brought by Jean Marie Jacobs, executrix of

the estate of Major Thomas L. Jacobs, against

the United States pursuant to the Federal

Tort Claims Act, 28 U.S.C. §2671 et seg.

The District Court granted summary judgment

to the United States, finding that the plaintif£é€

claim was barred by the doctrine of Ferese

v. United States, 340 U.S. 135 (1950). We

affirm.

Thomas L. Jacobs, the decedent, was

a career 'military officer in the United

States Air Force, and was stationed at Shaw

Air Force Base, South Carolina, where he

served as a dentist. Having been advised

that he would need corrective surgery to

repair - congential heart defect, Jacobs

elected to undergo open heart surgery at

Wilford Hall Medical Center, an Air Force

hospital near San Antonio, Texas, in March,

3a

1981. He was placed on temporary duty

status at Wilford Hall for the purposes of

the operation, and was treated by medical

personnel employed by the Air Force. After

completion of two surgical procedures and

convalescence Jacobs was allowed to return

to his normal duries. Jacobs died on

December 29, 1981, allegedly due to the

negligence of the military physicians in

ligating a branch of his coronary artery.

Feres holds that "the Government is

not liable under the Federal Tort Claims

Act for injuries to servicemen when the

injuries arise out of or in the course of

activity incident *o service."340 U.S. at

146. The common fact in the three actions

held barred in Feres, including two medical

malpractice cases involving military

surgeons, was that Ration Claimant, while

on active duty and not on furlough, sus-

4a

tained injury due to negligence of others

in the armed forces." Id. at 138. The

decedent had not been taken off active duty

in the Air Force when the alleged mal-

practice occurred, nor was the temporary

reassignment to Wilford Hall the equivalent

of a furlough. Accordingly, the plaintiff's

Claim must be held barred by Feres.

The judgment of the District is

accordingly.

AFFIRMED.

5a

APPENDIX B

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

JEAN MARIE JACOBS, ) CIVIL ACTION

Executrix of the Estate of ) NO. 83-802-3

Thomas L. Jacobs, Deceased,)

Plaintiff,

vs.

ORDER

UNITED STATES OF AMERICA,

i

Defendant.

This is a medical malpractice action

alleging wrongful death, brought pursuant

to 28 U.S.C. §134(b) and the Federal Tort

Claims Act (FTCA), 28 U.S.C. §2671, et sec.

The complaint filed on April 4, 1983, also

contained allegations of constitutional

violations arising under 42 U.S.C. §1983

and §1988, as well as under the Fifth and

Fourteenth Amendments to the United States

Constitution. The Government served and

filed its answer in due course, and,

6a

thereafter, filed a motion to dismiss, or

for summary judgment.

The motion was heard on October 6,

1983. At the hearing the Plaintiff with-

drew, without prejudice, allegations of

constitutional violations. The remaining

issues are barred by the "Feres Doctrine",

on the following facts and authorities.

FINDINGS OF FACT

i. The Plaintif£ is a citizen and

resident of the State of South Carolina.

The acts and omissions complained of

occurred in the State of Texas.

2- The plaintiff is the duly

appointed, qualified and acting Executrix

of the Estate of Thomas L. Jacobs, deceased.

3 At all times complained of, and

in particular during 1981, the United States

Department of the Air Force operated a

hospital near San Antonio, Texas, known as

the Wilford Hall USAF Medical Center, at

=

ja

Lackland Air Force Base, Texas. The medical

treatment complained of in this case was

at the hands of medical personnel employed

by the Department of the Air Force at

Wilford Hall Medical Center.

4. The acts of negligence complained

of occurred in March, 1981. At that time,

and at all other times relevant to this

case, Major Thomas L. Jacobs, the decedent,

was a Career military officer of the United

States Air Force who would have been

eligible for retirement on December 15,

1990. His permanent duty station during

1981 was Shaw Air Force Base, South

Carolina, where he served as a dentist.

5. The medical treatment involved in

this case was open heart surgery intended

to repair a congenital heart defect. The

defect was first detected in November of

1979. In May, 1981, the decedent was

8a

advised that he would need some type of open

heart surgery to repair the defect within

five years. In November, 1980, the decedent

began to experience some chest discomfort.

and was not able to engage in strenuous

activity, to the extent that he had been

able to previously, without becoming

somewhat short-winded. In early February,

1981, the decedent was advised by various

physicians™ that he soon should undergo

corrective heart surgery. As this was q

elective surgery, he checked with

physicians in Florida, in South Carolina,

and in Texas, and ultimatley decided that

Wilford Hall Medical Center was the best

possible location for his surgery.

6. In March of 1981 the deceased was

placed on temporary duty status ("TDY") at

Wilford Hall Medical Center for purposes

4

of corrective surgery. He underwent

9a

coronary catheterization which revealed an

anomalous left-anterior, descending,

coronary artery arising from the pulmonary

artery. It was decided by the United States

Air Force physicians who were treating Major

Jacobs that a saphenous vein by-pass would

be performed, to include termination of the

blood flow from the pulmonary artery into

the anomalous left-anterior, descending

coronary artery, with an ultimate by-pass

to the aorta. Major Jacobs underwent this

surgical procedure at Wilford Hall Medical

Center, Lackland Air Corce Base, San

Antonio, Texas, in March, 1981.

Fe Twenty-four hours after surgery

a continous heart murmur was heard.

Recatheterization revealed the continued

existence of an anomaly in the vesseis

arising from the pulmonary artery. It was,

therefore, determined by the physicians at

10a

Wilford Hall that. another surgical

procedure was required. This second

procedure consisted of the ligation of an

orifice from the pulmonary artery, and was

performed at Wilford Hall in March, 1981.

8. After completion of the second

surgical procedure Major Jacobs was allowed

to convalesce and then was returned to

normal duties at Shaw Air Force Base, South

Carolina. Major Jacobs was given a medical

clearance after a six week check-up in

September of 1981 and was told to follow

his normal lifestyle, including tennis,

jogging and other strenuous activity.

9. The surgery undergone by Major

Jacobs in March, 1981, at Wilford Hall

Medical Center, was elective surgery,

voluntarily undergone by him while on duty

in the United States Air Force. The

surgical and other medical services

lla

provided were provided in the course of his

military service in the United States Air

Force, by physicians and other medical

personnel who themselves were on duty in

the United States Air Force and acting

within the scope of their employment.

10. On December 29, 1918, while

off-duty but not on leave, the deceased

collapsed after jogging and died. It is

alleged, and for purposes of ruling on the

Government's motion taken to be true, that

Major Jacobs died because during one of

the operative procedures performed in

March, 1981, military physicians at Wilford

Hall Medical Center negligently ligated the

left circumflex branch of the decedent's

coronary artery, which was neither diseased

nor involved in the planned operative

procedure, resulting in a total occlusion

of that artery and, ultimately, ina total

occlusion of that artery and, ultimately,

12a

in a total occlusion of that artery and,

ultimately, in a myocardial infarct to the

lateral portion of the left ventricle of

his heart, directly and proximately causing

his death.

11. On December 29, 1981, the deceased

was a thirty-two year old married man, with

two minor children. As a direct result of

his death, his two children, and his widow,

Jean Marie Jacobs, are entitled to receive,

and in fact are receiving, Veterans Benefits

from the United States Government in the

combined amount. of Three Hundred

Twenty-three ($323.00) Dollars per month,

together with One Thousand Sixty

($1,060.00) Doilars per month in Social

Security benefits.

CONCLUSIONS OF LAW

The Court has jurisdiction of the

parties and of the subject matter pursuant

13a

to the Federal Tort Claims Act.

This action is governed by the Rule

enunciated in Feres v. United States, 340

G.8. 233 iva0r. In Feres, in evaluating

whether a serviceman might have a recog-

nizable cause of action against the United

States, the Court concluded that, "the

Government is not liable under the Federal

Tort Claims Act for injuries to serviceman

where the injuries arise out of or are in

the course of activity incident to service."

240 ‘Ge SS. 133, 146. 41950} «

The rationale in Feres recently has

been affirmed and broadened by the Supreme

Court in the case of Stencel Aero Engi-

neering Corp. v. United States, 431 U.S.

666, (1977). In Stencel, a third party

plaintiff was denied relief against the

United States where that rhird party was

seeking indemnity for damages for which it

l4a

was being sued by an injured National Guard

officer. The Court held that, “the right

of a third party to recover in an indemnity

action against the United States ... must

be held limited by the rationale of Feres

where the injured party is a serviceman."

431 U.S. 666, 674 (1977).

Lower courts have applied the Feres

rationale in different ways. Some circuits

have applied a strict “but for” test and

have denied recovery in cases where the

injury was related to or dependent upon the

members’ military service. Harten v. Coons,

502 F. 2d 1363 (10th Cir. 1974), cert.

denied, 420 U.S. 963 (9175); Shults v.

United States, 421 F.2d 170 (Sth Cir. 1969);

Chambers v. United States, 357 F.2d 224 (9th

Cir. 1966) (off-duty member injured at base

swimming pool); Buer v. United States, 241

P.246 3 (7th Cir. 1956), cart. Geniea, 353

15a

U.S. 974 (1957) (soldier injured while on

leave but suing for treatment received in

military hospital).

Other courts have denied recovery on

the basis of the member being subject to

military discipline at the time of the

injury. Alexander v. United States, 500

F.2d 1 (9th Cir. 1974), cert. denied, 419

U.S. 1107 (1975) (elective gall bladder

surgery); Herreman v. United States, 476

F.2d 234 (7th Cir. 1973) (non-duty status

National Guard officer during riding space-

available in a military aircraft).

In Henninger v. United States, it was

held that, “Feres absolutely bars Federal

Tort Claims actions by servicemen injured

‘while on active duty and not on furlough

--. due to the negligence of other in the

Armed Forces.'" 473 F.2d 814 (9th Cir.

1973); cert. denied, 414 U.S. 819 (1973).

l6a

Henninger involved a case of admitted

medical malpractice by U.S. Navy surgeons.

The Ninth Circuit reasoned that, in order

to preserve discipline and the orderly

conduct of military affairs, it is more

important to draw a clear line against suit

by military personnel against the Govern-

ment than to be able to justify in every

case exactly where the line is drawn.

The Fourth Circuit Court of Appeals

follows the mechanical test laid down in

Feres, as explained in Henninger. In Hass

v. United States, 518 F.2d 1138 (4th Cir.

1975) the plaintif£ was on active duty,

though in an “off-duty” status, at the time

he was injured while riding a horse rented

from a Marine Corps stable. The district

court granted summary judgment for the

Government and the Fourth Circuit affirmed,

holding:

17a

"Incident to service” is not, of

course, a narrow term restricted to

actual military operations such as

field maneuvers or small arms instruc-

tion. It has been held that a member

of the military is engaged in activity

incident to his military service when

he is enjoying a drink in a noncommissioned

officers club, .. . when he is riding

a donkey during a ballgame sponsored

by the Special Services division of

a naval air station, . . . and while

swimming in a swimming pool at an air-

base, .. . 518 F.2d at 1141 (citations

omitted).

= am

We hold that an active duty service-

man, temporarily in off-duty status

and engaged in recreational activity

on a military base, cannot sue the United

States for the alleged negligence of

another serviceman or civilian employee

of the military. 518 F.2d at 1142.

In Buckingham v. United States, 394

P.2d 483 (4th Cir. 1968), the plaintiff

alleged medical malpractice in the refusal

of the Langley Air Force Base Hospital to

promptly admit the decedent, a master

sergeant in United States Air Force. The

Fourth Circuit affirmed summary judgment

18a

granted the Government, noting that the case

was "not meaningfully distinquishable from

Feres", 394 F.2d at 484, and that Congress

had provided a uniform system of compen-

sation for the death of a service member.

In Stansberry v. Middendorf, 567 F.2d

617 (4th Cir. 1978), the Fourth Circuit.

relied on its earlier holding in Hass,

supra, in holding that a naval serviceman

injured while on "a normal weekend liberty”

could not maintain a Federal Tort Claims

Act suit against the Government because at

the time of alleged neutionis "the plaintiff

was on active duty and not on furlough",

567 F.2d at 618. Accord, Mariano v. United

States, 605 F.2d 721 (4th Cir. 1979).

In Keesler v. United States, 514

F.Supp. 1320 (D.S.C. 1981), the district

court gave a thorough review to the Feres

Doctrine, noting that in the Fourth Circuit

19a

the test to be applied is a relatively

mechanical test, “focusing primarily on the

plaintiff's duty status and the location

of the tort." 514 F.Supp. at 1322. In Major

Jacobs' case the alleged tort was committed

by Air Force surgeons at Lackland Air Force

Base, Texas while the decedent was ina duty

status.

Despite the overwhelming authority

supporting application of the Feres

Doctrine, the Plaintiff has argued force-

fully against application on grounds that

it is a judicially declared doctrine that

in fairness should not be applied in this

case. However, matters of equity cannot

decide this case. it is of legal conse-

quences, that Major Jacobs was on duty

during the time of his surgery, see Buer

v. United States, supra, as well as immedi-

ately before and afterwards, and was subject

20a

to the orders and directives of his military

Superiors at Wilford Hall Medical Center,

as were the physicians and staff who treated

him. The Feres case itself made clear that

"the medical care given servicemen in...

hospitals is so entwined with the military

relationship that a serviceman cannot bring

an action under the FTCA for the negligent

provision thereof." Hopkins v. United

States, 567 F.Supp. 491, 495 (E.D.N.Y.

1983).

It is also of legal consequences that.

the surgical procedures undergone by Major

Jacobs at a military hospital were available

to him as a direct result of his sctive duty

status in the United States Air Force. In

other words, this surgery, and its conse-

quences, “arise out of or is in the course

of an activity incident to service",

Feres v. United States, 340 U.S. 135, 146

21a

(1950), and occurred while Major Jacobs was

on duty and not on leave or furlough.

It is also of legal consequences that

the decedent's beneficiaries, including the

Plaintiff herself, are receiving the

veterans benefits which Congress nas

provided as a matter of right, without

regard for issues of fault.

Stencel Aero Engineering Corp. v. United

States, 431 U.S. 666, 671, 673 (1977).

The Plaintiff cites the Court to Downes

v. United States, 249 F.Supp. 626 (E.D.N.C.

1965), as support for her argument that

Major Jacobs' surgery was not “incident to

2 ema

service” in the context of Feres. Downes

is readily distinquishable, however, as the

Plaintiff in that case was on pass at the

time of his injury in a traffic wreck.

Casses involving military leave and fur-

lough are recognized as not arising incident

22a

to service. See Brooks v. United States,

337 U.S. 49 (1949). Futhermore, Downes was

decided well in advance of Hass v. United

States, 518 F.2d 1138 (4th Cir. 1975) and

Stansberry v. Middendorf, 567 F.2d 617 (4th

Ciz. 1978) which hold contrary to

Plaintiff's agrument.

For the foregoing reasons, the Court.

holds that the Plaintiff's action is barred

by the sovereign immunity of the United

States, as articulated in Feres and its

progeny.

Inasmuch as this motion has been heard

with the benefit. of responses to discovery

requests and of an affidavit of the

Plaintiff, it is treated as a motion for

summary judgment. under FRCP 56(b).

Accordingly,

IT IS ORDERED, that the Government's

motion for summary judgment be granted, that

23a

the Complaint be dismissed with prejudice

as to all claims brought under the Federal

Tort Claims Act, and that judgment for the.

Defendant be entered.

s/G. Ross Anderson, Jr.

G. ROSS ANDERSON, JR.

UNITED STATES DISTRICT JUDGE

Anderson, South Carolina

November 23, 1983

24a

APPENDIX C

UNITED STATES COURT OF APPEALS

for the

FOURTH CIRCUIT

No. 83-2156

C/A 83-802

Jean Marie Jacobs, as

Executrix of the Estate of

Thomas L. Jacobs, deceased,

versus

)

)

)

) Appellant,

)

)

The United States of America, )

)

Appelle.

Appeal from the United States District

Court for the District of South Carolina.

This cause come to be heard on the

record from the United States District Court

for the ------- District of South Carolina,

and was argued by counsel.

On consideration whereof, It is now

ordered and adjudged by this Court that the

judgment of the said District Court appealed

from, in this cause, be, and the same is

25a

hereby affirmed.

s/John M. Greacen

CLERK

FILED: September 27, 1984 U.S. Court of

Appeals Fourth Circuit

FILED: October 22, 1984 U.S. District Court

26a

APPENDIX D

(CAPTION OMITTED)

Pursuant to Federal Rule of Civil

Procedure 36, the Defendant requests that

the Plaintiff admit to the following matter:

1. At the time of the death of Thomas

L. Jacobs on December 29, 1981, as well as

at the time of the cardiac surgery performed

on Thomas L. Jacobs on March 9, 1981, as

well as during the period of time between

these two events, Thomas L. Jacobs was on

active duty in the United States Air Force,

and was subject to military discipline and

to military control.

HENRY DARGAN MCMASTER

United States Attorney

By:s/John B. Grimball

JOHN B. GRIMBALL

Assistant United States Attorney

Columbia, South Carolina

June 3, 1983

27a

APPENDIX E

(CAPTION OMITTED)

Pursuant to Rule 36 of the Federal Rule

of Civil Procedure, the Plaintiff hereby

answers the Defendant's Request for

Admission as follows:

1. The Plaintiff admits only so much

of the Defendant's Request for Admission

as alleges that at the time of the death

of Thomas L. Jacobs, as well as at the time

of the cardiac surgery performed on him,

as well as during the period of time between

these two events, Thomas L. Jacobs was

employed by the United States Air Force.

The remainder of the Defendant's

Request for Admission is denied. Such

denial is, however, qualified to the extent.

that Plaintiff admits that on the date of

the surgical procedures performed upon

Plaintiff's deceased, upon information and

284

belief, at the precise time of the negligent.

acts and omissions on the part of the

Plaintiff's deceased's surgeon, the

Plaintiff's deceased was “TDY” to Wilford

Hall and at the time of the negligent acts

on the part of the Plaintiff's deceased's

surgeons, Plaintiff's deceased was under

general endotracheal anesthesia, and

subject only to the control of his treating

surgeon.

ABRAMS, BOWEN & PARHAM

By:s/William L. Dodson, Jr.

FOP: MICHAEL PARHAM

ATTORNEY FOR THE PLAINTIFF

Greenville, South Carolina

June 30, 1983

29a

APPENDIX F

(CAPTION OMITTED)

ANSWER TO INTERROGATORY #8

Benefits due Jean S. Jacobs; Thomas

Lee Jacobs, Jr., and Elizabeth Marie Jacobs

from the United States Government amount

to Three Hundred Twenty-Three ($323.00)

Dollars per month in VA compensation and

indemnity. It is the understanding of the

plaintiff that this amount shall drop to

the sum of Two Hundred Fifty-Five ($255.00)

Dollars per month as of October 20, 1991

and amount to zero dollars as of December

28, 1993. The plaintiff also receives One

Thousand Sixty ($1,060.00) Dollars per

month in Social Security benefits, which

she understands shall continue until the

children complete their education. The only

other benefits received by the plaintiff

‘

was $35,000.00 in serviceman's insurance.

30a

APPENDIX G

(CAPTION OMITTED)

PERSONALLY appeared before me, Jean

Marie Jacobs, (Jean Marie Riddle), who, upon

oath, would say as follows:

That she is the plaintiff£-executrix,

and the surviving widow of Thomas L. Jacobs,

deceased, who now brings this action both

on her behalf and on the behalf of his two

Surviving children; that the decedent was

a career military officer of the United

States Air Force eligible for retirement

after twenty (20) years of service on

December ‘15, 1990; that nevertheless the

decedent had, in October and November of

1981, considered the possibilty of ending

his military service and engaging in private

practice at some location in South Carolina;

during the latter part of 1981 your affiant

and the decedent did inspect various

3la

locations for his possible entry into

private practice.

The congential heart defect, its

repair being the basis of this action, was

not detected until November of 1979. In

May of 1980 the decedent was advised that

he would need some type of open heart

surgery to repair the defect within five

(5) years. In November of 1980 the decedent

began to experience som chest discomfort

and was not able to engage in strenuous

activity to the extent he had previously

engaged without becoming somewhat

short-winded.

In early February, 1981, the decedent

was advised by various physicians that he

should undergo the surgery soon and,

therefore, he checked with physicians in

Florida, Greenville, South Carolina and San

Antonio, Texas, but ultimately advised that

32a

Wilford Hall was the best possible location

for his surgery. Dr. Gerry Harmon,

Department of Flight Surgery, Shaw Regional

Hospital, Shaw Air Force Base; Dr. Shields

Stutts, San Antonio, Texas; Dr. P. I. Lupo,

Greenville, South Carolina; and Dr. B. Bruce

McGraw, and Dr. William Wolverton, both of

Pensacola, Florida, are aware of these

initial contacts and recommendations.

Therefore, the decedent was ultimately

scheduled for surgery under the treatment

and care of r. Robert Barnes, of the

Thoracic and Cardiovascular Surgery Team

at Wilford Hall Medical Center. The surgery

was to take place in March of 1981. An

initial surgical procedure was performed

in March of 1981, and within twenty-four

(24) hours after the rediscovery of a

murmur, another surgical procedure took

place. It was during the initial porcedure

33a

that the decedent's left circumflex branch

was ligated, totally ecluding the flow of

blood through a portion of his heart and

resulting in severe and acute damage. This

negligent ligation of the left circumflex

branch of the decedent's coronary artery

went undetected in the subsequent surgical

procedure which took place in March of 1981.

Furthermore, the negligent ligation of

this artery again went undetected when the

decedent was given a medical clearance after

Six (6) week check-up in September of 1981

and was told to continue a very normal

lifestyle including tennis, jogging and

other strenuous activity.

On Tuesday afternoon at 4:30 p.m. on

December 29, 1981 while jogging, the

decedent fell and experienced heart failure

which has been clearly attributed to the

negligent surgical ligation of certain

34a

coronary arteries, as more fully appear by

the copies of autopsy reports attached

hereto. The decedent was immediately taken

by City Ambulance to Toumey Hospital in

Sumter, South Carolina, where he was

pronounced dead.

Subsequently your affiant was

contacted by Dr. Robert Barnes, the surgeon

who performed the original surgical proce-

dures upon the decedent, who stated "(that)

he was sorry and that he couldn't believe

he had made a mistake and why in the world

did it take eight months for this to come

about."

Your affiant is informed, alleges and

believes that the decedent's designation

of duty as “"TDY" was only a mechanism to

be utilized for military purposes to trans-

fer the decedent to Wilford Hall for the

performance of the surgical procedures in

35a

March of 1981. During no period of time

while at Wilford Hall in either March of

1981 or May of 1981 did the decedent perform

any military service-related activities.

Furthermore, your affiant is informed,

alleges and believes that at no time during

the decedent's visit to Wilford Hall in

March of 1981 and subsequently in May of

1981, was the decedent given any military

orders or commands.

So sayth your affiant.

s/Jean Marie Jacobs

JEAN MARIE JACOBS

(RIDDLE)

36a

APPENDIX H

28 U.S.C. §2671

--.. Acting within the scope of his office

or employment", in the case of a member of

the military or naval forces of the United

States, means acting in line of duty.

37a

APPENDIX I

28 U.S.C. §2674

"The United States shall be liable,

respecting the provisions of this title

relating to tort claims, in the same manner

and to the same extent as a private

individual under like circumstances, but

shall not be liable for interest prior to

judgment. or for punitive damages.

If, however, in any case wherein death

was caused, the law of the place where the

act or omission complained of occurred

provides, or has been construed to provide,

for damages only punitive in nature, the

United States shall be liable for actual

Or compensatory damages, measured by the

pecuniary injuries resulting from_= such

death to the persons respectively, for whose

benefit the action was brought, in lieu

thereof."

YOUa

APPENDIX J

10 U.S.C. §1089

§1089. Defense of certain suits arising

out of medical malpractice

(a) The remedy against the United

States provided by sections 134(b) and 2762

of title 28 for damages for personal injury,

including death, caused by negligent or

wrongful act or omission of any physician,

dentist, nurse, pharmacist, or paramedical

Or other supporting personnel (including

medical and dental technicians, nursing

assistants, and therapists) of the armed

forces, the National Guard while engaged

in training or duty under section 316, 502,

503, 504, or 505 of title 32, the Department

of Defense, or the Central Intelligence

Agency in the performance of medical,

dental, or related health care functions

39a

(including clinical studies and investi-

gations) while acting within the scope of

his duties or employment therein or therefor

shall hereafter be exclusive of any other

Civil action or proceeding by reason of

the same subject matter against such

physicians, dentist, nurse, pharmacist, or

paramedical or other supporting personnel

(or the estate of such person) whose act.

Or omission gave rise to such action or

proceeding.