Petition for Writ of Certiorari — Molnar v. United States

1 Supremé Qeurt, U.8,

FILED

99203 2 JUN 2 0 2000

No. OFFICE_OF JHE cirex

Gn the

Supreme Court of the Anited States

Ellak Molnar; Socorro M. Molnar,

Petitioners,

vs.

United States of America,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX

NEESE LAW FIRM P.A.

MARTHA L. NEESE

Counsel of Record

1811 Weir Drive, Suite 275

Woodbury, Minnesota 55125

(651) 730-6900

HOWARD E. SKOLNICK

Attorney at Law

1570 Compton Road

Cleveland, OH 44118

(216) 321-8866

Attorneys for Petitioner

2000 — Bachman Legal Printing & (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

IPRs

QUESTIONS PRESENTED

WHETHER THE FERES DOCTRINE, FERES V.

UNITED STATES, 340 U.S. 135 (1950) SHOULD

BAR CLAIMS UNDER THE FEDERAL TORT

CLAIMS ACT, 28 U.S.C. §§ 2671-2688 FOR

SERVICE MEMBERS WHO ARE ON MEDICAL

LEAVE, CONVALESCENT LEAVE, MEDICAL

HOLD, PERMANENT CHANGE OF STATION

LEAVE ("PCS") AND/OR TEMPORARY

DISABILITY RETIREMENT LEAVE?

WHETHER THE FEDERAL TORT CLAIMS ACT,

28 U.S.C. §§ 2671-2688 BARS A CLAIM OF A

SERVICE MEMBER WHOSE CONTRACTUAL

DISCHARGE DATE OF MAY 19, 1996 WAS NOT

HONORED AND WHO WAS PLACED ON

MEDICAL HOLD UNTIL OCTOBER 30, 1997,

AND WHO RECEIVED NEGLIGENT MEDICAL

CARE CAUSING INJURY DURING THIS

MEDICAL ABSENCE FROM ACTIVE DUTY?

TABLE OF CONTENTS

PUTS CEOINS FRE, BBD exessesccessncncnennceiecqenestonnsncsscnsenses i

TABLE OF AUTHORITIES ............c:ssssssessesseesesssessssnesneenes V

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SO. BIR chicas cei kcercncriainsiiscastiinineahnimphiisloiaiaidiiiiataniie l

CONSTITUTIONAL, STATUTORY AND OTHER

PROVISIONS INVOLVED. .....0.0.serccsosersssecssscenssnsecsses l

STATEMENT OF THE CASE . uu... cccscscsssssssssesseenes 2

REASONS FOR GRANTING THE WRIT...................... 4

A. WHETHER THE FERES DOCTRINE, FERES

V. UNITED STATES, 340 U.S. 135 (1950)

SHOULD BAR CLAIMS UNDER THE

FEDERAL TORT CLAIMS ACT, 28 U.S.C. §§

2671-2688 FOR SERVICE MEMBERS WHO

ARE ON MEDICAL LEAVE,

CONVALESCENT LEAVE, MEDICAL

HOLD, PERMANENT CHANGE OF

STATION LEAVE ("PCS") AND/OR

TEMPORARY DISABILITY RETIREMENT

Rem VEE wa:s1xcsnshiasnmumibiiionnaininiasliandnimalasiaiaioasiiias 5

B. WHETHER THE FEDERAL TORT CLAIMS

ACT, 28 U.S.C. §§ 2671-2688 BARS A

CLAIM OF A SERVICE MEMBER WHOSE

CONTRACTUAL DISCHARGE DATE OF

MAY 19, 1996 WAS NOT HONORED AND

WHO WAS PLACED ON MEDICAL HOLD

li

UNTIL OCTOBER 30, 1997, AND WHO

RECEIVED NEGLIGENT MEDICAL CARE

CAUSING INJURY DURING _ THIS

MEDICAL ABSENCE FROM _ ACTIVE

EW latuinccacieencikissisninnntesemnssnaniasaceunssicbonninabninessepeit 8

IIIT Ritsnntininchininscnkcssedipubis prcectisastcesisiunisiomenbioniin 10

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APPENDIX

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT ......... sine sieves A-1

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

OHIO, EASTERN DIVISION, DECEMBER 30,

PLAINTIFFS’ MORE DEFINITE STATEMENT,

EPAPER 00s WOO snciscninanesnsiiniitsinianealimnmaienibdeatiia A-12

CLAIM FOR DAMAGE, INJURY OR DEATH CLAIM

95 FORM, DATED NOVEMBER 7, 1997......... secicinain A-15

AFFIDAVIT OF ELLAK C. MOLNAR, DATED

DECEMBER 19, 1998, AND ATTACHED

TABLE OF AUTHORITIES

CASES .

Adams v. United States, 728 F.2d 736 (Sth Cir. 1984)........... 6

Bradley v. United States, 161 F.3d 777 (4th Cir. 1998).......... 6

Brooks v. United States, 337 U.S. 49 (1949) oo ceeeeeees 9

Cortez v. United States, 854 F.2d 723 (5th Cir. 1988)............ 6

Feres v. United States, 340 U.S. 135 (1950)........cccceseeee. 4-10

Fleming v. United States, 186 F.3rd 697 (6th Cir. 1999)........ 7

Harvey v. United States, 884 F.2d 857 (5th Cir. 1989) .......... 6

Labash v. United States, 668 F.2d 1153 (10th Cir. 1982)

et cert. denied, 456 U.S. 1008 (1982) ..........ccscsssccssssesseeees 6

Madsen v. United States, 841 F.2d 1011 (10th Cir. 1987)......6

Molnar _v. United States, 2000 WL 331946 (6th Cir.

RRR a tae em A RI er 4, 5,8, 10

Ricks v. United States, 842 F.2d 300 (11th Cir. 1988).......... 6

United States v. Brown, 348 U.S. 110 (1954) -ecccccccssccccsssee 9

United States v. Johnson, 481 U.S. 681 (1987) cece 4,8,9

United States v. Shearer, 473 U.S. 52 (1985) sesseccsssesssooe 6,9

Vv

STATUTES

Federal Tort Claims Act, 28 U.S.C. § 1254.00... ceceessseseseees l

Federal Tort Claims Act, 28 U.S.C. §§ 2671-2688..... 1, 4, 5, 8

OTHER

CPR Gestion 32, THA TOE virccistncititenieins 2

vi

The Petitioners respectfully ask that a Writ of Certiorari

issue to review the decision of the United States Court of

Appeals for the Sixth Circuit entered in the above-entitled

proceeding.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit is an unpublished opinion cited as 2000 WL

331946 (6th Cir. (Ohio)), and is reprinted hereto at App. A-1.

The opinion of the Unitéd States District Court for the

Northern District of Ohio (Oliver, Jr., S.) is not officially

reported. This decision was filed as Civil File Number 1:98

CV 1127 and is reprinted hereto at App. A-4.

JURISDICTION

The opinion and judgment of the United States Court of

Appeals for the Sixth Circuit was entered on March 23, 2000,

and is reprinted in the appendix at App. A-1. Jurisdiction to

review by writ of certiorari is conferred upon this Court by 28

U.S.C. § 1254.4

CONSTITUTIONAL, STATUTORY

AND OTHER PROVISIONS INVOLVED

The Federal Tort Claims Act sets forth the manner and

mechanism by which individuals can sue the United States

Government in 28 U.S.C. §§ 2671-2680.

STATEMENT OF THE CASE

Ellak Molnar was born on May 2, 1965. In September of

1991, Ellak Molnar enlisted in the United States Navy with

official service date of May 19, 1992. Mr. Moinar's official

contractual discharge date was scheduled for May 19, 1996,

for a total of four years of service.

On May 5, 1995, Ellak Molnar detached from his

command in Japan and was placed on permanent change of

station ("PCS") leave from May 5, 1995 until June 30, 1995.

During this 45-day leave, Ellak Molnar returned home to

Cleveland, Ohio, and was to be married. Following leave,

Ellak Molnar was to report to Whidbey Island, Washington.

Affidavit of Ellak Molnar, App. A-18.

Following his placement on PCS status, Ellak Molnar, in

May of 1995, began to develop progressive worsening pain in

his buttocks for which he sought emergency care at the

Veteran's Hospital in Cleveland, Ohio. Affidavit of Ellak

Molnar, App. A-18. Mr. Molnar was diagnosed with a

pilonidal cyst or a perirectal abscess. Affidavit of Ellak

Molnar, App. A-19. Surgery was performed to drain this

infection or abscess. Plaintiff's More Definite Statement,

App. A-12.

Ellak Molnar was hospitalized at the University Hospital

Bedford Medical Center from May 25, 1995 until May 30,

1995. Plaintiffs More Definite Statement, App. A-13.

-Follow up home care was provided for his surgery from

May 31, 1995 until June 23, 1995 through University Home

Care Services.

On June 13, 1995, Ellak Molnar was seen in consultation

at the VA in Cleveland, Ohio, and it was recommended that

he be placed on convalescent” leave! from May 30, 1995

‘Convalescent Leave is discussed in C.F.R. Section 32, 728.4,

"Policies." In Subsection (d), it is stated that the period of authorized

absence may be granted where military members are not fit for duty.

2

through July 10, 1995 because he could not travel until at

least July 10, 1995. Plaintiff's More Definite Statement, App.

A-13. In July of 1995, Ellak Molnar's orders to report to

Washington were cancelled. Ellak Molnar’s detailer stated

there was nothing that could be done unless he was cleared

for full duty by a military physician. Affidavit of Ellak

Molnar, App. A-21. Noteworthy is the fact that there is no

medical evidence linking Mr. Molnar's pilonidal cyst abscess

to his subsequent condition involving his spinal disc for

which the claim of negligence was asserted and is unrelated to

his subsequent medical negligence claim.

On September 29, 1995, Ellak Molnar reported to Great

Lakes Naval Hospital because he was experiencing shooting

pains down his right leg. Mr. Molnar was referred to

Patterson Air Force Base facility on November 6, 1995, while

on convalescent leave that had unofficially continued.

Plaintiff's More Definite Statement, App. A-13.

In January of 1996, Ellak Molnar consulted a private

civilian physician, Dr. Elghazawi, and was diagnosed as

suffering from a right LS-S1 herniated nucleus pulposus, and

this civilian physician recommended immediate surgery.

Plaintiffs More Definite Statement, App. A-13. A seven

month delay followed within the Military health care system

until July of 1996 when Ellak Molnar was seen at the

National Naval Medical Center in Bethesda, Maryland.

Mr. Molnar was finally surgically treated by the military for

his herniated disc. Plaintiff's More Definite Statement, App.

A-14. It is Ellak Molnar's contention that the United States

committed medical malpractice in failing to diagnose and

promptiy treat Ellak Molnar's herniated disc from January

1996 through July of 1996, during which time the seven

month delay caused Ellak Molnar to develop permanent

bowel, bladder, and sexual dysfunction.

Ellak Molnar was originally scheduled to be discharged

from the military on May 19, 1996, and wrote in March of —

1996 begging to be discharged on his scheduled date in

Fa

3

accordance with his contract. Affidavit of Ellak Molnar, App.

A-24. The military placed him on a medical hold, or in a

limbo situation until October 30, 1997, almost a year and a

half later when Ellak Molnar was finally granted a Temporary

Disability Retirement Leave ("TDRL").

Ellak Molnar filed a Standard Claim 95 Form in

November of 1997, claiming that the United States departed

from the standard of care in providing medical treatment to

him through July of 1996. Claim for Damage, Injury or

Death Claim 95 Form, App. A-15. Specifically, Ellak Molnar

alleged that the military physicians failed to diagnose his

condition in a timely manner and failed to intervene and

perform necessary surgery after the diagnosis of Ellak

Molnar's herniated disc in January of 1996, and continuing

through the time the surgery was finally performed in July of

1996. Ellak Molnar asserts that his claim accrued on or about

July 7, 1996 at the time of his surgery, almost two months

after Ellak Molnar should have been discharged from the

military.

The case was filed pursuant to the Federal Tort Claims

-Act ("FTCA") 28 U.S.C. § 2671 et seq. An appeal to the

Sixth Circuit in this matter was taken from a judgment

entered on December 30, 1998, dismissing Plaintiff's claims

pursuant to the Order of the Honorable Solomon Oliver, Jr.

The Sixth Circuit affirmed the dismissal by Order filed

March 23, 2000. Molnar v. United States, 2000 WL 331946

(6th Cir. (Ohio)).

REASONS FOR GRANTING THE WRIT

This Court in Feres v. United States, 340 U.S. 135 (1950)

established the test for determining whether a claim is barred

under the Federal Tort Claims Act. This landmark decision

was last affirmed by this Court in a 5-4 decision in United

States v. Johnson, 481 U.S. 681 (1987). There have been

inconsistent rulings in the various federal appellate courts as

4

\

to how the Feres Doctrine should apply to service members

who are injured on some form of leave, i.e. liberty, medical

hold, furlough, and/or temporary disability retirement leave

("TDRL"). This issue is one of importance to the

administration of justice in that without Supreme Court

judicial review of this decision, there are no clear guidelines

for the lower federal courts to follow when service members

are injured on some form of leave or absence from their duty

command post. This Court needs to establish a test to be

followed by the lower federal courts to avoid confusion and

inconsistent rulings.

ARGUMENT

A. WHETHER THE FERES DOCTRINE, FERES V.

UNITED STATES, 340 U.S. 135 (1950) SHOULD BAR

CLAIMS UNDER THE FEDERAL TORT CLAIMS

ACT, 28 U.S.C. §§ 2671-2688 FOR SERVICE

MEMBERS WHO ARE ON MEDICAL LEAVE,

CONVALESCENT LEAVE, MEDICAL HOLD,

PERMANENT CHANGE OF STATION LEAVE

("PCS") AND/OR TEMPORARY DISABILITY

RETIREMENT LEAVE?

Mr. Molnar requests this Court to establish a test and

establish precedent as to whether a service member on some

form of leave should be able to assert a claim under the

Federal Tort Claim Act ("FTCA") for acts of negligence

committed by the United States during the absence from the

service member's active duty command. The Federal courts

have adopted two drastically different approaches in making

this determination.

The approach used by the Sixth Circuit in Molnar v.

United States, 2000 WL 331946 (6th Cir. (Ohio)) is the black

and white hard-line approach, namely: Was the Plaintiff

Officially discharged from service at the time of the

5

malpractice or negligence or not? If not, there is no

possibility of recovery and the case is dismissed. Madsen v.

United States, 841 F.2d 1011 (10th Cir. 1987) and Ricks v.

United States, 842 F.2d 300 (11th Cir: 1988) The other

distinctly different approach is to look at the member's

relationship with the military and acknowledge that the

relationship cannot always be easily pigeon-holed. This

approach recognizes a continuum from full active duty on one

end to complete discharge on the other. This second-case-by-

case approach allows each court to decide whether the

Plaintiff's relationship with the military is such that the

concerns of Feres are not present and recovery under the

FTCA is permitted. Where the connection with the military is

tangential and insubstantial, this case-by-case approach

allows recovery and a finding that none of the Feres' concerns

are implicated.

The United States Supreme Court has previously directed

that each FTCA claim be evaluated on a case-by-case basis.

United States v. Shearer, 473 U.S. 52 (1985) Therefore, the

second approach should be the law of this land, but is not

consistently followed by the lower federal courts. Rather than

simply applying the black and white approach that denies all

claims if the status of the service member is one of active

duty, cases adopting the case-by-case approach look at the

continuum. Bradley v. United States, 161 F.3d 777 (4th Cir.

1998), Harvey v. United States, 884 F.2d 857 (Sth Cir. 1989),

Cortez v. United States, 854 F.2d 723 (Sth Cir. 1988), and

Adams v. United States, 728 F.2d 736 (Sth Cir.-1984)

For example, the Fifth Circuit Court of Appeals in

Harvey found that a medical hold was equivalent to a

discharge and that Harvey could bring his FTCA claim,

holding that a service member on medical hold is not part of

the active duty military force. Harvey at 86-861. See also

Labash v. United States, 668 F.2d 1153 (10th Cir. 1982) er

cert. denied, 456 U.S. 1008 (1982), the Court noting that if a

Plaintiff is on leave or in an inactive status at the time of the

6

injury, a claim under the FTCA will survive. See also Cortez

v. United States, 854 F.2d 723 (Sth Cir. 1988), a service

member on TDRL and was allowed to recover under the

FTCA.

In Fleming v. United States, 186 F.3rd 697 (6th Cir.

1999), the Sixth Circuit reversed a lower federal court's

dismissal of a FTCA claim against the Postal Service

predicated on the Feres Doctrine. Fleming was a Major in the

Army traveling to Fort Knox to report for duty when he was

struck by a Postal delivery truck. The Sixth Circuit held that

although the "ultimate destination" was an active duty post,

Fleming was not on active duty when injured. Id. Mr.

Molnar asserts the Sixth Circuit's opinion in Fleming is

inconsistent with its rejection of his claim, because he too was

not at an active duty command post when injured.

Ellak Molnar's relationship with the military was

tangential and insubstantial at the time of the negligence. His

contractual date of discharge was May 19, 1996. Ellak

Molnar had been on medical hold, convalescent leave, and in

medical limbo because of his ongoing need for medical care

which developed while on permanent change of station leave

in May of 1995. Ellak Molnar's orders to report to

Washington State were cancelled. Mr. Molnar was in a

unique situation within the military where no one claimed

him and he had a lack of any relationship with any military

post. Ellak Molnar contends that the malpractice occurred

during the time he was on medical leave or in this limbo or

suspension from active duty post.

B. WHETHER THE FEDERAL TORT CLAIMS ACT, 28

U.S.C. §§ 2671-2688 BARS A CLAIM OF A SERVICE

MEMBER WHOSE CONTRACTUAL DISCHARGE

DATE OF MAY 19, 1996 WAS NOT HONORED AND

WHO WAS PLACED ON MEDICAL HOLD UNTIL

OCTOBER 30, 1997, AND WHO RECEIVED

NEGLIGENT MEDICAL CARE CAUSING INJURY

DURING THIS MEDICAL ABSENCE FROM ACTIVE

DUTY?

The Sixth Circuit's decision in Molnar suggests that only

fully discharged service members may bring FTCA claims

and that Ellak Molnar's claim should be summarily denied,

solely because the malpractice occurred at a military facility

and he was technically an active duty service member. The

Sixth Circuit adopted the black and white approach, because

Mr. Molnar had not yet been discharged. The irony of this is

that the military refused to discharge Mr. Molnar, even after

March of 1996, when he begged them to keep the contractual

date of his discharge so that he could obtain the medical care

that he needed. It seems ludicrous that the military can claim

a defense based upon an active duty status, when the facts

establish that Mr. Molnar was in military suspension or hold.

Mr. Molnar was absent from a military chain of command,

whether you call it a medical hold, convalescent leave, or

another title, and should not be barred under the Feres

Doctrine. ©

The Feres decision has set out three bases for its doctrine

which were reaffirmed by the Supreme Court in 1987 in

United States v. Johnson, 481 U.S. 681 (1987). The first

rationale is that the relationship between the government and

members of its armed forces is "distinctively federal in

character" and, therefore, the application of local tort law to

this relationship would be inappropriate. In Johnson, this

Court stated that when a service member is injured incident

because of his military relationship with the government, it

makes no sense to permit the fortuity of the situs of alleged

negligence to affect the liability. Johnson, 481 U.S. at 689-

690. L

The second rationale of the Feres Doctrine is that there is

alternative compensation systems for military personnel

available. Johnson, 481 U.S. at 689-690. Typically, no

litigation is necessary to obtain these benefits. Feres v.

United States, 340 U.S. 135, 145 (1950)

Third, the Feres Doctrine is intended to prevent claims

arising incident to service because "if generally permitted,

would involve the judiciary in sensitive military affairs at the

expense of military discipline and effectiveness." Johnson,

481 U.S. at 689-690. It has often been stated that the only

rationale of the Feres Doctrine which has retained any

validity is the third rationale. See, United States v. Shearer,

473 U.S. 52 (1985).

The Feres decision did not overrule this Court's decision

in Brooks v. United States, 337 U.S. 49 (1949). In Brooks,

members of the armed forces who were injured while on

furlough in motor vehicle accidents could sue the United

States, because the injuries were not caused by their active

duty service. Id. at 52. In United States v. Brown, 348 U.S.

110 (1954), this Court allowed Plaintiff, who was receiving

treatment at a VA hospital after discharge from the military,

to bring a claim under the FTCA, because the Plaintiff was

not subject to military discipline and that the negligent act

giving rise to injuries was not incident to Plaintiff's active

service. In Brown, the argument was rejected that a Plaintiff

may not recover under the FTCA simply because they

received medical treatment within the military health system.

In this case, Mr. Molnar's claim should not be barred

under the Feres Doctrine when one applies the test set forth in

Johnson, 481 U.S. 681. At the time of the alleged negligence

in 1996, Ellak Molnar was on medical leave recovering from

injuries. He was scheduled to be discharged on May 19,

1996. The Military kept him beyond his contractual

9

discharge date, despite his request to be discharged. His

medical hold status did not disrupt military procedures, nor

involve a situation distinctly federal in character. Under these

circumstances, Ellak Molnar should be allowed to recover

and not be barred by the Feres Doctrine. Thus, the Sixth

Circuit in Molnar erred in finding Mr. Molnar was barred by

the Feres Doctrine.

CONCLUSION

For the reasons set forth above, Petitioner is requesting

that this Petition for Certiorari be granted.

Respectfully Submitted,

NEESE LAW FIRM P.A.

Martha L. Neese

Counsel of Record

1811 Weir Drive, Suite 275

Woodbury, MN 55125

Telephone: (651) 730-6900

Howard E. Skolnick

Attorney at Law

1570 Compton Road

Cleveland, OH 44118

Telephone: (216) 321-8866

Attorneys for Petitioner

10

FILED

MAR 23 200°

LEONARD GREEN, Clerk

NOT RECOMMENDED FOR PUBLICATION

: No. 99-3261

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ELLAK MOLNAR and ___)

SOCORRO M. MOLNAR, )

)

)

Plaintiffs-Appellants,

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE

UNITED STATES OF ) NORTHERN DISTRICT OF

AMERICA, ) OHIO

)

Defendant-Appellee. _)

BEFORE: BATCHELDER and , DAUGHTERY Circuit

Judges, and STEEH, District Judge.

PER CURIAM. The plaintiffs, Ellak and Socorro

Molnar, appeal from the ruling of the district court dismissing

their claims against the government under the Federal Tort

Claims Act, 28 U.S.C. §§ 2671-2680. Ellak had brought suit

alleging that the Department of the Navy negligently failed to

diagnose and treat promptly a serious medical condition that

left Molnar with both bladder and bowel incontinence.

Socorro Molnar also sued the Navy, seeking damages for the

loss of her husband’s consortium. The district court held that

* The Hon. George Caram Steeh, United States District Judge for the

Eastern District of Michigan, sitting by designation.

A-1

it lacked subject matter jurisdiction under the “Feres

doctrine,” developed in the Supreme Court opinion in Feres

v. United States, 340 U.S._135 (1950). There the 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.” Jd. at 146.

Ellak Molnar entered into active service with the United

States Navy on May 19, 1992, and was scheduled for

discharge exactly four years later. At the end of that four

years, however, he was continued on active duty, in a limited

duty status and on “medical hold,” due to a medical condition,

the care for which by Navy doctors gave rise to his

malpractice claim. Specifically, Molnar claimed that the

military physicians had failed to diagnose and treat his

herniated disc problem “until approximately July 7, 1996,”

some seven weeks after his discharge date of May 19, 1996.

On July 7, he underwent surgery at the Bethesda Naval

hospital and remained on active duty until he was transferred

to “temporary disability retired list” status on October 30,

1997.

Despite Molnar’s argument that this circuit should extend

the analysis employed by other courts and hold that he is not

barred from filing suit under the Feres doctrine in the

circumstances of this case, we believe we are constrained by

existing Sixth Circuit precedent to affirm the district court’s

judgment. As we have previously recognized:

Review of . . . Supreme Court precedent makes it

clear that in recent years the Court has embarked on

a course dedicated to broadening the Feres doctrine

to encompass, at a minimum, ai/ injuries suffered by

military personnel that are even remotely related to

the individual’s status as a member of the military,

without regard to the location of the event, the status

(military or civilian) of the tortfeasor, or any nexus

A-2

between the injury-producing event and the essential

defense/combat purpose of the military activity from

which it arose.

Major v. United States, 835 F.2d 641, 644-45 (6th Cir. 1987)

(footnote omitted). In fact, “included in the term ‘incident to

service’ [used in Feres] is medical treatment received by a

soldier on active duty.” Skees v. United States, 107 F.3d 421,

424 (6th Cir. 1997). Consequently, “claims by active duty

servicemen against the United States for negligent treatment

by medical staff at a military hospital are barred by the Feres

doctrine.” Jd.

Having had the benefit of oral argument, and having

studied the record on appeal and the briefs of the parties, we

are not persuaded that the district court erred in finding that

the plaintiff was on active duty at all times relevant to his

malpractice claim and was therefore barred from bringing suit

under the Federal Tort Claims Act. It follows that Socorro

Molnar cannot maintain her derivative claims against the

government, and that the district court was correct in

dismissing the complaint in its entirety. Because the reasons

why judgment should be entered for the defendant have been

fully articulated by the district court, the issuance of a

detailed opinion by this court would be duplicative and would

serve no useful purpose. Accordingly, we AFFIRM the

judgment of the district court upon the reasoning set out by

that court in its order entered on December 30, 1998.

FILED

98 DEC 30 PM 1:24

CLERK U.S. DISTRICT COURT

NORTHERN DISTRICT OF OHIO

CLEVELAND

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ELLAK MOLNAR, et al., ) Case No.: 1:98 CV 1127

)

Plaintiffs )

v. JUDGE SOLOMON OLIVER,

UNITED STATES OF ™

AMERICA, )

Defendant tee ORDER

Plaintiffs, Ellak Molnar (“Ellak”) and his wife Socorro

Molnar (“Socorro”) (collectively referred to as “Plaintiffs”,

filed this action against Defendant, United States of America

(“Defendant”), alleging that Ellak suffered severe medical

injuries as a result of the military’s failure to treat him in a

timely manner and that Socorro has sustained injuries as a

result of the loss of her husband’s services, consortium, and

companionship. Defendant now moves to dismiss Plaintiffs’

claims for lack of subject matter jurisdiction. For the reasons

that follow, the court grants Defendant’s Motion To Dismiss

For Lack Of Subject Matter Jurisdiction (Doc. No. 12).

A-4

I. FACTS

In May 1995, Ellak began experiencing excruciating pain

in the cleft of his buttocks while on leave between duty

Stations on his way to reassignment at Whidbey Island,

Washington. His leave began on May 5, 1995, and he was

supposed to report to his new station in Washington after June

30, 1995. On May 24, 1995, Ellak presented himself at the

Veteran’s Administration (“VA”) Hospital, where he was

treated by out-patient surgery for a rectal abscess. On May 25,

1995, Plaintiff was treated at University Hospital

(“UH”)-Bedford until he was discharged from the hospital on

May 30, 1995. On June 13, 1995, Ellak followed up with a

consultation at the VA Hospital, where they recommended

that he not travel until at least July 10, 1995. On July 11,

1995, Ellak was admitted to UH-Bedford for further surgery

and was discharged on July 13, 1995. On August 17, 1995,

Ellak had hemorrhoid surgery at UH Medical Center. On

September 13, 1995, the VA Branch Medical Clinic of

Cleveland evaluated Ellak due to shooting pains down his

right leg. From September 18, 1995, to October of 1995,

Ellak had a number of visits at the VA Branch Medical Clinic

for treatment of the pain in his right leg. On November 6,

1995, Ellak was referred to Naval Hospital in Great Lakes,

Illinois. Over the course of several months, Ellak sought

consultation at Wright Air Force Base and was also examined

by a private physician, Dr. Ahmed Elghazawi, who in a

January 9, 1996 report, recommended immediate surgery. On

July 5, 1996, Ellak was seen at National Naval Medical

Center in Bethesda, Maryland with a diagnosis of right L5-S1

herniated nucleus pulposus and was operated on at that time.

Any subsequent treatment occurred at National Naval

Medical Center in Bethesda, Maryland. During this time

period, Ellak was unassigned to any command and was placed

on medical hold and limited duty status.

A-5

On October 30, 1997, Ellak, who was originally

scheduled for discharge on May 19, 1996, was granted

temporary disability retirement leave (“TDRL”). Before his

discharge, Ellak had been on active duty since May 19, 1992,

a period of five years, five months and twelve days.

On November 12, 1997, Ellak filed an administrative

claim under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §1346(b), on Standard Form 95 with the Department

of the Navy, alleging that a delay in treatment for his

condition had caused him permanent nerve damage which

resulted in permanent bowel and bladder incontinence and

back pain with radiculopathy. The claim further alleged that

the claim accrued on or about July 7, 1996. Socorro’s claims

were not included in Ellak’s administrative claim. On

November 17, 1997, the Department of the Navy denied

Ellak’s administrative claim on the ground that it was

jurisdictionally barred by the Feres doctrine. On May 15,

1998, Plaintiffs filed their complaint in this court. On

September 23, 1998, the court held a case management

conference for the parties. At this conference, the parties

stipulated that:

Plaintiff was in the military at all times relevant to

the claims alleged in the complaint. The events so

alleged took place between May 19, 1992, and

October 30, 1997. The administrative claim in this

case was filed on November 12, 1997. None of the

events which are the subject of the complaint

occurred during the period between October 30,

1997, and November 12, 1997. The alleged acts

complained of occurred at military medical facilities

and occurred as a result of acts by military health

care providers.

Case Management Conference Order, September 28,

1998, p.2.

A-6

On October 19, 1998, at Defendant’s request for a more

definite statement, Plaintiffs filed such statement.

II. LAW AND ANALYSIS

In this case, Defendant argues that Plaintiff's claims

should be dismissed because Ellak was an active duty service

member at the time he received treatment at military medical

facilities, where Ellak alleges that negligence occurred, and

the Feres doctrine bars military personnel from suing the

United States for alleged torts that occur during the course of

an activity incident to service. Defendant argues that

Socorro’s claim is barred for the same reasons.

The FTCA provides, in relevant part, that: “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.” 28

U.S.C. §2674 (1994). Excepted from this general waiver of

sovereign immunity are claims “arising out of the combatant

activities of the military or naval forces, or the Coast Guard,

during time of war.” 28 U.S.C. §2680(j). This exemption was

broadened by the Supreme Court in Feres v. United States,

340 U.S. 135 (1950) (consolidated and decided along with

Jefferson v. United States and United States v. Griggs). In

Feres, the Supreme Court held 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.” Jd. at 146. As the Supreme

Court noted in Feres, included in the term “incident to

service” is medical treatment received by a soldier on active

duty. See id. at 137. The three rationales that underlie the

Feres doctrine are as follows. First, “{t]he relationship

between the Government and members of its armed forces is

‘distinctively federal in character,’; thus, where “a service

member is injured incident to service - that is, because of his

A-7

military relationship with the Government - it makes no sense

to permit the fortuity of the situs of the alleged negligence to

affect the liability of the Government to [the] serviceman.”

United States v. Johnson, 481 U.S. 681, 689-90 (1987)

(citations omitted). Second, the existence of “generous

statutory disability and death benefits is an independent

reason why the Feres doctrine bars suit for service-related

injuries.” Jd. Third, “Feres and its progeny indicate that suits

brought by service members against the Government for

injuries incurred incident to service are barred by the Feres

doctrine because they are the ‘type[s] of claims that, if

generally permitted, would involve the judiciary in sensitive

military affairs at the expense of military discipline and

effectiveness.’” /d. (citations omitted).

Given the Supreme Court’s ruling in Feres, the Sixth

Circuit has held on numerous occasions that claims by active

duty service members against the United States for negligent

treatment by medical staff at a military hospital are barred by

the Feres doctrine. See Skees v. United States, 107 F.3d 421,

424 (6" Cir. 1997); Irvin v. United States, 845 F.2d 126, 130

(6" Cir. 1988); Major v. United States, 835 F.2d 641, 644-45

(6" Cir. 1987). Indeed, two of the three cases comprising the

Feres trilogy involved claims for negligent treatment of

service members. See Feres, 340 U.S. at 137. However, the

Sixth Circuit has also noted that the Feres doctrine may not

bar claims from servicepersons who have been discharged or

are on furlough. See Skees, 107 F.3d at 424.

The Fifth Circuit has made a further exception to the

Feres bar. More specifically, the Fifth Circuit has held that a

service member’s status on TDRL means that alleged

malpractice by military medical personnel is not “incident to

service.” See Harvey v. United States, 884 F.2d 857 (5" Cir.

1989); Cortez v. United States, 854 F.2d 723 (5" Cir. 1988).

The Fifth Circuit states that TDRL status is not equal to active

duty status “because active duty service requires that a service

member meet certain health and fitness standards not required

A-8

of a service member on TDRL.” Harvey, 884 F.2d at 860; see

also Cortez, 854 F.2d at 725-27. Other circuits, however,

have held that a service member’s status on TDRL does not

mean that the alleged malpractice by military medical

personnel is not “incident to service.” See Kendricks v. United

States, 877 F.2d 1201 (4" Cir. 1989), cert. dismissed, 493

U.S. 1065 (1990); Ricks v. United States, 842 F.2d 300 (11"

Cir. 1988), cert. denied, 490 U.S. 1031 (1989). Ellak argues

that the Fifth Circuit exception should be applied to his case.

According to Ellak, his case should not be barred by the Feres

doctrine because he was not under the direct military control

of any particular military station and was in limbo status with

respect to both his medical condition and duty stations.

Furthermore, Ellak argues, unlike the cases cited by

Defendant, his claim is “not only one for medical malpractice

in that it was negligent treatment at any one particular

military medical facility, but rather that it was a lack of

treatment by various medical facilities that caused the delay

and the ultimate surgery that was necessary and resulted in

permanent bowel and bladder incontinence.” Plaintiff's

Response To Defendant’s Motion To Dismiss, p.5.

After careful consideration, the court finds that the facts

of Ellak’s case require that his claims be barred by the Feres

doctrine. To begin, unlike the plaintiff in Cortez, Ellak was

not placed on TDRL status until after he received medical

treatment from military personnel. Furthermore, Ellak’s status

as a service member on medical hold and limited duty

(throughout the period of his treatment) is not sufficient to

overcome the Feres bar because, unlike the plaintiffs in

Harvey and Cortez, from the beginning of his treatment until

May 19, 1996 (his original date for discharge), Ellak was

supposed to report to another station in Washington to return

fully to active duty. See Kendrick, 877 F.2d at 1205-06; Berry

v. United States, 772 F. Supp. 563, 565 (D. Kan. 1991). Thus,

Ellak’s position on medical hold and limited duty was more

than “a processing point on the road to either separation or

A-9

disability discharge.” Harvey, 884 F.2d at 860; see Adams v.

United States, 728 F.2d 736, 741 (5" Cir. 1984) (noting that,

in medical malpractice actions, the proper inquiry is: was the

plaintiff's “treatment intended to return him to military

service?’’).

A question remains, however, as to whether Ellak’s

status on medical hold and limited duty after his original

discharge date on May 19, 1996, is sufficient to overcome the

Feres bar.' The court finds that it does not. The Sixth Circuit

has held that a service member’s status as an active duty

serviceperson is controlling. See Skees, 107 F.3d at 424-25. In

fact, Sixth Circuit caselaw (and the caselaw from the majority

of circuits that have dealt with this issue) suggests that

medical treatment by military personnel (or in this case, the

alleged failure to provide timely medical treatment) because

of a person’s status as a service member alone requires a

Feres doctrine bar. See id.; see also Persons v. United States,

925 F.2d 292, 296 (9"" Cir. 1991) (holding that the plaintiff's

claim must fail because her husband had “enjoyed the use of

the naval hospital ‘solely by virtue of his status as a

serviceman’”); Appelhans v. United States, 877 F.2d 309,

311-12 (4 Cir. 1989) (“The fact that [the plaintiffs] injury

occurred as a result of medical treatment by military doctors,

however, conclusively demonstrates that injury was ‘incident

to service.’”); Madsen v. United States, 841 F.2d 1011 cio"

Cir. 1987) (dismissing the claim of the plaintiff where the

plaintiff was on terminal leave pending retirement because

“injury to active duty service members as a result of military

medical care has been regarded as incident to service’’);

Scheppan v. United States, 810 F.2d 461 (4 Cir. 1987)

(finding that the plaintiff's injuries occurred in the course of

service in spite of the fact that she was medical leave at the

time of the injury).

' Any conclusion reached as to these claims would also naturally

apply to Ellak’s claims before his original date of discharge.

A-10

In sum, because Ellak was treated by medical military

personnel while he was on active duty status (though on

medical hold and limited duty), because part of Ellak’s

treatment occurred so that he may return to fully active duty

at a station in Washington, and because Ellak allegedly did

not receive (or was denied) proper and timely medical

treatment from military medical personnel because of his

military status, the court grants Defendant’s Motion To

Dismiss (Doc. No. 12) on Ellak’s claims.

For the same reasons, the court grants Defendant’s

Motion To Dismiss (Doc. No. 12) on Socorro’s claim. The

Sixth Circuit has held that a claim for loss of consortium in

this context is derivative of a service member’s injury in the

course of activity incident to service and is barred by the

Feres doctrine. See Skees, 107 F.3d at 425-26. Additionally,

the court dismisses Socorro’s claim on the ground that she

failed to comply with the jurisdictional requirements of 28

U.S.C. §2675(a) by failing to file an administrative claim with

the Department of the Navy. See Rucker v. United States

Department of Labor, 798 F.2d 891, 893 (6" Cir. 1986).

CONCLUSION

The court grants Defendant’s Motion To Dismiss (Doc.

No. 12).

IT IS SO ORDERED.

s/ Solomon Oliver, Jr.

UNITED STATES DISTRICT JUDGE

A-11

FILED

98 OCT 19 PM 1:14

CLERK, U.S. DISTRICT COURT

NORTHERN DISTRICT OF OHIO

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ELLAK MOLNAR, et al. ) Case No.: 1:98CV1127

)

Plaintiffs ) Judge Solomon Oliver, Sr.

)

v. ) PLAINTIFFS’ MORE

) DEFINITE STATEMENT

UNITED STATES OF _)

AMERICA )

)

Defendant )

Now come the Plaintiffs by and through undersigned

counsel and in compliance with court order, submit the

following information to supplement the original Complaint

with this More Definite Statement of the Claim.

1. In May, 1995, Plaintiff began experiencing excruciating

and progressively worse pain in the cleft of his buttocks

while on leave between duty stations when he had

detached from his command in Japan on his way to

reassignment at Whidbey Island, Washington.

2. On May 24, 1995, Plaintiff Ellak Molnar, presented

himself at the Veteran’s Administration Hospital where

he was treated by out-patient surgery for rectal abscess.

A-12

10.

On May 25, 1995, Plaintiff was treated at University

Hospital-Bedford Medical in the emergency room and

admitted until discharge on May 30, 1995 for an

ischiorectal abscess.

On June 13, 1995 he followed up with a consultation at

the VA Hospital where they recommended that he not

travel until at least July 10, 1995.

On July 11, 1995, Plaintiff Ellak Molnar was admitted to

University Hospitals-Bedford Medical Center for further

surgery. He was discharged on July 13, 1995.

On August 17, 1995, Plaintiff had hemorrhoid surgery at

University Hospital Medical Center.

On September 13, 1995, the VA Branch Medical Clinic

in Cleveland evaiuated Mr. Molnar due to shooting pains

down his right leg. The record indicated that at that time

they would seek an orthopedic consult with “Great

Lakes”.

From September 18, 1995 through October of 1995,

Plaintiff Ellak Molnar had a number of visits at the

Branch Medical Clinic in Cleveland for treatment of pain

down his right leg.

On November 6, 1995 Mr. Molnar was referred to the

Naval Hospital at Great Lakes, Illinois. He was treated

there through November 7, 1995.

Over the course of the next several months Plaintiff was

sent to seek consultation at Wright Air Force Base as

well as examined by a private physician on his behalf,

Dr. Ahmed Elghazawi, who in a report January 9, 1996,

recommended immediate surgery.

A-13

11.

12.

13.

On July 5, 1996, Mr. Molnar was seen at National Naval

Medical Center in Bethesda, Maryland with a diagnosis

of right LS-S1 herniated nucleus pulposus and was

operated on at that time. Subsequent treatment and

evaluations were carried on at Bethesda, Maryland Naval

Medical Center subsequent to that time.

Plaintiff's allegations are that the various military

medical facilities at which he was treated failed to

recognize in a timely manner that his bowel and bladder

incontinence were due to disc herniation. Furthermore,

by that time it was recognized and surgery was

performed, permanent damage had been incurred by the

Plaintiff leaving him permanently incontinent of bowel

and bladder.

Plaintiff Ellak Molnar was unaware of the permanency of

this condition and, therefore, that malpractice previously

had occurred, until subsequent to his surgery in July,

1996.

Respectfully submitted,

/s/

ILAN WEXLER, (#0005859)

Attorney for Plaintiffs

ANZELLOTTI, SPERLING, PAZOL &

SMALL CO., L.P.A.

21 North Wickliffe Circle

Youngstown, Ohio 44515

Phone: (330)792-6033

A-14

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A-16

AFFIDAVIT

Now comes the affiant, Ellak C. Molnar Jr., a.k.a. Ellak

Molnar, and after first being duly sworn according to law,

states and avers:

1. The attached Plaintiff's Exhibit I is a true and accurate

copy of a letter I sent in March, 1996 and it accurately

reflects the history of my circumstances as they occurred

to that point in time.

2. I was placed on medical hold status during this time

period and was unable to perform the duties of my job

assignments in the Navy due to my medical condition.

3. The facts set forth in the Statement of Facts in the

Response to Defendant’s Motion to Dismiss are true and

accurate to the best of my knowledge and belief.

Further Affiant Sayeth Naught:

/s/

Ellak C. Molnar, Jr.

County of Cuyahoga }

}ss

State of Ohio - }

Sworn to and subscribed before me, a notary public, by Fllak

C. Molnar, Jr., this 19th day of December, 1998.

s/ Howard E. Skolnick, Esq.

Notary Public

A-17

Dear Sir/Madam,

I am writing you to ask of your assistance in resolving a

matter of utmost urgency affecting my health, family and my

access to proper medical care. I am an active duty Sailor who,

while on leave in between duty stations in may 1995,

experienced excruciating, progressively worsening pain in the

cleft of my buttocks. I had detached from my command in

Japan and was home in Cleveland, Ohio for 45 days PCS

(Permanent Change of Station) leave from 5 May to 30 June

while in transit to VAQ-130 in Washington State. I was to be

married while home, and expected to take care of the

dependency paperwork when I arrived in Whidbey Island,

Washington.

However, By the 18th of May the pain was so severe that

I] could not walk, an a severe infection from this illness was

making me progressively faint and nauseous. I had never been

instructed in the procedures for emergent medical care while

away from a Military treatment Facility (MTF), so I assumed

that the VA Hospital in Cleveland, Ohio would be able to

treat me.

However, Upon arrival to the VA. Hospital, the VA.

admissions staff informed me that they could not treat me

because | was on active duty. They said that they would need

prior authorization from the Navy. This was incorrect,

because my illness was obviously an emergency, and I was so

sick that I could not of contacted anyone at that point. Finally,

after insisting that I was very ill, the VA. reluctantly agreed to

examine me. This examination came only after waiting for six

hours in the examination room while the VA. contacted the

Navy Regional Medical Center in Great Lakes for

authorization. The Major problem was that when a service

member is in between commands, after a detaching

endorsement is generated by the last command and before a

reporting endorsement is generated by the receiving

command, he belongs to no one.

EXHIBIT 1

A-18

Needless to say, this delayed my treatment. When | was

finally examined, I was diagnosed with a pilonidal cyst, or

perirectal abscess, which formed a tract of infection

surrounding my spinal cord. This abscess had already

ruptured internally, and was leaking infection into my lower

abdominal cavity. This condition was a result of a internal

leakage of the intestinal tract. As you might realize, this type

of condition requires surgical procedure to drain the abscess,

and it must be performed under sterile conditions while under

anesthesia due to the spinal cord.

It is also a very painful procedure and it involved a

4-inch long, 4-inch deep incision to drain the tract around my

spine. This should have been performed in a surgical suite

under anesthesia by a trained surgeon, but was performed

instead by an unsupervised intern on a dirty gurney in the

emergency room, with no anesthesia except an order to “bite

down on your T-shirt”. She then stuffed me with about a yard

of packing in my draining abscess and told me to wash up at

the sink by (Myself!). I was told to come back three days later

for a wound check and dressing change. This same intern then

prescribed a pain medication which contained codeine,

despite the fact that she had in her possession my complete

medical record, with a conspicuous warning label on the front

advertising her of my codeine allergy.

When I arrived home I checked the medication in the

family drug reference, and the book said it contained codeine.

I called the intern at the VA. who said that it was not codeine,

but a (codeine derivative), and told to go ahead and take the

medication anyway. The next morning, I went in to the

bathroom to soak in the tub and repack the wound per the

physician’s orders, but passed out and became unresponsive.

My parents called 911, and I was rushed by ambulance to a

nearby University Hospital where I was diagnosed with a

severe anaphylactic (allergic) reaction to codeine! They also

examined my wound and found that the VA. Hospital had

A-19

attempted to drain the abscess from the wrong side and in

fact, never drained anything! The abscess was still impacted

around my spine. By this time, I was septic low on blood cells

and required an IV of a very powerful antibiotic called cipro

for two days before I could be taken to surgery to correct the

VA’s incompetence. The University surgeons found over a

cup of infectious fluid still inside my body. I spent a week at

the University Hospital, allowed only to leave for a few hours

to attend my wedding and released four days later.

Now, I began to worry about being late in reporting to

my new duty station in Washington. I called the office in

Great Lakes and spoke with the Chief Petty Officer who

okayed the initial surgery. 1 was told that everything was fine,

all I needed to do was call the duty Officer at VAQ-130 in

Washington State, who would generate a ordermod (order

modification) to allow me to report when cleared by the

University Physicians for active duty.

I made the call right away from my hospital bed that

same day after surgery, and also called my old duty station in

Japan. I was told by everyone not to worry, just get better. It

was just one of those things that happens, it was beyond my

control, just keep everyone informed. Great Lakes told me

that once I was able to walk, I need to see the physician at the

clinic in the Cleveland federal Building for final evaluation

and documentation.

Well, the wound was very slow healing, and six weeks

later, after finally getting visited by a nurse to come out to my

home for the last 30 days to clean out and re-pack my wound

daily, it was discovered that the infection had formed another

abscess requiring further surgery. For a third time, I was taken

to surgery to reonen the wound and drain the infection. The

University surgeon overseeing my case called the Federal

Building in Cleveland, I called Washington, Japan and Great

Lakes. The prognosis was another six weeks of the same slow

healing and daily re-packing.

A-20

Now, I had a additional problem. All of our belongings

including my wife’s furniture and clothing had been moved to

Washington State and placed into storage awaiting our

arrival. All of my winter uniforms were also in the shipment.

Additionally, my wife still had no I.D. card and no medical

authorization, since this paper work is usually after arrival at

the next duty station. I was not yet upgraded to married BAQ

and VHA, to defer the expenses of our apartment. No one

would take the responsibility to perform this paperwork since

I literally belonged to no one.

Everyone I called said the same thing, “Oh, it will get

taken care of at your next duty station. until then, you'll just

have to rough it out”. Roughing it out meant using all of our

wedding money and borrowing money from my parents to

cover the expense of a $700.00 a month furnished apartment,

utilities, and the expense of buying replacement clothing. |

begged the Navy to please send back our belongings due to

our unusual situation, but was told this was against policy,

that they could do nothing until I belonged to someone. The

one thing that I was able to do was take a loan out against my

Navy pay check just to have enough money on hand to live.

Now it was time for my third operation. The physician at

the Federal Building gave the go ahead for the University to

perform another surgery, and as expected, it required a

6-week convalescence Leave. After six weeks, I was again

diagnosed with a enclosed fistula requiring more surgery.

Yes, I was looking at yet a fourth operation and another

six weeks recovery. So I called Washington State to inform

them of the delay and to ask there assistance with my pay and

household goods and was asked why I was contacting them,

my orders had been cancelled! They told me to contact my

detailer to find out what my new orders were.

Well, I called my detailer, who told me that there was

nothing that he could do until I was cleared for full duty by a

military Physician. I begged him to put me in some sort of

permanent duty station so that I could have someone

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responsible for me who could clear up my pay and

dependency paperwork. He essentially told me, tough! it was

just to much paperwork to assign me somewhere until I was

released for full duty.

Now I was truly alone! No Money or medical for my

wife, no help from the Navy and another surgery to look

forward to. I had no choice but to have the fourth surgery and

I was again down for yet a additional 6-weeks convalescence.

On top of this, the surgeon informed me that he strongly

recommended a fifth surgery to correct severe hemorrhoids!

The physician at the Federal Building said, Yes, I should have

the University perform that surgery also. with yet another

long period of convalescence ahead, I knew that I had to get

my pay straighten out now, not whenever I was cleared for

full duty. The Doctor at the Federal Building, Cleveland told

me that since I was under their medical purview, to call

Columbus, Ohio. Where the Federal Buildings parent

command was, to see if they could help me.

Unfortunately, 1 was again told that since I did not belong

to them, they could not help me- They said that no one could

help me until my detailer cut me a new set of orders, and |

could then belong to someone.

Now I was at the end of all of my resources, | called the

Congressman in my home town. His staff called the Naval

Congressional Office in Washington D.C. and suddenly

things seemed to take a turn for the better. Now, everyone

who couldn’t help me before seemed very willing. They fixed

my pay and enrolled my wife as a Navy dependent. I was told

to bring all of my medical bills from the University Hospital

to the Federal Building for processing, and that I now had a

new set of orders cut for me, to the Naval Base at Great

Lakes. This set of orders, however, was for me to go

unaccompanied by my wife for a fitness for duty evaluation,

three weeks tops. I have to go alone, leaving my wife in

Cleveland still without her clothing and household goods.

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While I was sent to go live in a barracks with no facilities

for daily sitz baths or repacking of my wounds in some

semblance of privacy. I was told that this was my only option.

I reported to Great Lakes on September 29th, 1995, but

instead of being rapidly evaluated as promised, I was placed

in a Medical Holding Company, Assigned to the phone watch

in the main lobby of the Great Lakes Hospital. My Pay was

finally completely straightened out, but the Naval Hospital

did not have the necessary services to evaluate or treat me. it

seemed that the fifth surgery had left me incontinent, unable

to hold my urine or bowel movements. Great Lakes did not

have a specialist who was a experienced in this type of nerve

compression injury, so I was referred to the Air force Hospital

in Dayton, Ohio to see a neurologist. They diagnosed the

problem as being a mechanical one (not neurological) and

told me to come back in two weeks for additional testing.

Now, this involved an un-reimbursed 1200-mile round trip in

my own car with a diagnosed lower spine injury!

Once back to Great Lakes, I begged everyone to please

allow me to go back to my wife in Cleveland so that I could

find a less expensive unfurnished apartment instead of a

furnished one that we were forced to rent because our

belongings were in storage. This would allow the Navy to

release all of our belongings from storage and have then all

redelivered to Cleveland. It would also bring back all of our

winter clothes, since it was now the middle of winter. After

all, my required care was beyond the capability of Great

Lakes and Cleveland is closer to Dayton.

Well, a deal was struck to allow me to be assigned to

Naval Recruiting District, Cleveland. I had to buy all new

winter uniforms, I would have to use my leave time for the

move, and the round trip to-and-from Dayton, while still

un-reimbursed, was only 400 miles instead of 1200.

Additionally, my incontinence was becoming embarrassing in

the main lobby of the Naval Hospital. At least in Cleveland, |

could clean myself up at home instead of in the rest room of

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the Hospital Lobby or the barracks which was shared by 200

other people.

Well, it is now March 1996, almost one year after the

disaster at the VA. Hospital. I still have a compréssed sciatic

nerve from a herniated disk (a result of rough treatment while

under anesthesia during my last surgery) and incontinence

which a specialist at the world -renowned Cleveland Clinic

believes is due to a compressed nerve, NOT a mechanical

problem. The specialists at Dayton are stalling until my

EAOS in May so that the VA. Hospital will have to fix me,

Not the Navy or the Air Force. The VA. Hospital? They

started this all!!! I have not been able to participate in an

advancement test for the last year, and I have spent over

$400.00 so far traveling back and forth to Dayton, sometimes

only to repeat a urine test that they had lost. $150.00 in long

distance phone bills.

Remember those medical bills that the Federal Building

was taking care of? They were lost Twice, still unpaid, and is

affecting my credit. All I ask is for the immediate approval

for supplemental care to the Cleveland Clinic. They know

what is wrong, They can fix me. the Neurologist there says

that the condition is worsening with each passing day. Soon it

will be irreversible. Please, I have been patient with the

system, but it has failed me. I ask for your help to get me the

medical care that I need. and just allow me to leave the

military as planed in my contract on May 19th 1996.

Very Respectfully,

Ellak C Molnar Jr,

281-76-9772

6000 Lee Rd. South

Apt# 208

Maple Hts, Ohio, 44137

(216) 475-7484 Voice

(216) 581-5125 Fax

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