Carianne C. Cutshall v. United States

No. 95-2162
_______________

Carianne C. Cutshall, *
individually and as parent and *
natural guardian of Brandon T. *
Cutshall; Brandon T. Cutshall, *
a minor child, * Appeal From the United
* States District Court for
Appellees, * the Eastern District of
* Missouri.
v. *
*
United States of America, *
*
Appellant. *

_________________

Submitted: December 15, 1995

Filed: February 1, 1996

_________________

Before MAGILL, BRIGHT and MURPHY, Circuit Judges.

_________________

BRIGHT, Circuit Judge.

Carianne C. Cutshall, a corporal in the United States Marine
Corps, filed this action seeking damages for medical malpractice
under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). The
United States government moved for summary judgment, arguing that
the Feres doctrine bars suits by military personnel for injuries
that "arise out of or are in the course of activity incident to
service." Feres v. United States, 340 U.S. 135, 146 (1950). The
district court denied summary judgment, and the Government appeals.
Based on United States Supreme Court and Eighth Circuit precedent,
we reverse.

I. BACKGROUND

Cutshall discovered a swollen lump in her left armpit and
sought medical treatment at Navy medical facilities in California.
Navy doctors diagnosed the problem as an infection, treated it with
antibiotics, and repeatedly assured Cutshall that she did not have
cancer. Later, after Cutshall became pregnant, Navy doctors
discovered that the swollen lymph node was actually non-Hodgkins
lymphoma. Cutshall underwent chemotherapy during pregnancy, and
her son was born prematurely. Cutshall brought suit on her own
behalf and that of her son.

For herself, Cutshall claimed damages for the risk of future
illness, loss of chance of survival, and pain and suffering. The
Government moved to dismiss and for summary judgment under the
Feres doctrine because Cutshall's injuries were "incident to
service." The district court denied the motion, finding that only
one out of three rationales underlying the Feres test applied, and
thus Cutshall's claims were not barred. The district court also
relied on the Navy's letter to Cutshall which stated its intention
to take action against the individuals associated with Cutshall's
treatment and to implement new procedures. After the claims
1
pertaining to Cutshall's son were settled, the district court
granted the Government's motions to stay the trial proceedings and
take an interlocutory appeal on Cutshall's remaining claims. This
court likewise granted the Government's petition for interlocutory
appeal. We reverse the district court's order.

1
The parties have settled the claims regarding Cutshall's
son Brandon, and the settlement precludes Cutshall from
maintaining any claim which is dependent on or derivative of
Brandon's injuries.

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II. DISCUSSION

In Feres, a serviceman was killed by a fire in the barracks
and his estate sued the government for its negligence. 340 U.S. at
136-37. Two companion cases decided along with Feres both charged
medical malpractice on active duty servicemen, one who later was
discharged; the other died from the negligent act. Id. at 137. In
barring all three claims, the Supreme Court concluded "that the
Government is not liable under the Federal Tort Claims Act for
injuries to servicemen where the injuries arise out of or are in
the course of activity incident to service[,]" and that Congress
did not create in the FTCA "a new cause of action dependent on
local law for service-connected injuries or death due to
negligence." Id. at 146.

The Supreme Court maintains it "has never deviated from [the
above] characterization of the Feres bar[,]" and "the Feres
doctrine has been applied consistently to bar all suits on behalf
of service members against the Government based upon service-
related injuries." United States v. Johnson, 481 U.S. 681, 686-88
(1987). In Johnson, a serviceman's wrongful death action alleging
negligence by civilian employees of the federal government, the
Court also highlighted the three broad rationales underlying Feres:
(1) the distinctively federal character of the relationship between
the Government and members of its armed forces which entails
significant risk of accidents and injuries; (2) the existence of
generous statutory disability and death benefits precluding the
need for additional benefits under the FTCA; and (3) the potential
of these types of suits to undermine both military discipline and
effectiveness and the service member's commitment. Id. at 689-91.

Here, the district court examined the three rationales under
Feres, determined only one rationale--the uniquely federal
relationship between Cutshall and the military--was implicated in

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this case, and thus concluded Feres did not bar this action.2
Although this analysis finds some support in United States v.
Shearer, 473 U.S. 52, 57 (1985) (doctrine cannot be reduced to few
bright line rules; each case must be examined in light of statute
as construed in Feres and subsequent cases), more recent Supreme
Court case law departs from a counting approach of rationales under
Feres, see Johnson, 481 U.S. at 686-88, and our own Eighth Circuit
precedent appears to preclude any relief for Cutshall.

In Lampitt v. United States, 753 F.2d 702 (8th Cir.) (per
curiam), cert. denied, 472 U.S. 1029 (1985), this court held that
Feres barred a medical suit brought by a serviceman, although the
alleged tort had arisen when the serviceman was on convalescent
leave. The serviceman had claimed Navy physicians had negligently
performed surgery on him and had argued his injuries did not arise
out of activity incident to service because he was not on active
duty. Id. at 703. This court noted that the two companion cases
to Feres related to medical malpractice where no recovery was
allowed, and that courts have adhered to the view that surgical
malpractice in the military comes within the bar of the Feres
doctrine. Id. This court concluded that: "[t]he bottom line is
that [the serviceman] seeks recovery for injury caused by the Navy
doctors' negligence, both in their own conduct of the surgery and
in their failure to secure the participation of [a civilian
physician.] For that he cannot recover." Id. at 703.

In Bowers v. United States, 904 F.2d 450 (8th Cir. 1990), this
court held that Feres barred a medical malpractice claim by an Air
Force recruit. The Bowers' plaintiff had cancer which was not
diagnosed during a pre-induction physical at a military hospital,
and his cancer continued untreated. Id. at 451. We concluded that

2
In light of our holding, we decline to consider the
Government's assertion that a second Feres rationale also
applied.

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Johnson required us to hold that the plaintiff's claim was barred
under Feres, even though no military benefits were available to the
plaintiff who was not a service member at the time of the alleged
negligence. Id. at 451. We concluded that "a court decision that
the physicians who examined [the plaintiff] were negligent would
have a direct effect upon military judgments and decisions. . . .
[A]n effect on the allocation of military resources [which] is
precisely the kind of thing that the Feres doctrine is supposed to
prevent." Id. at 452.

These cases are dispositive. We note, however, that the Feres
doctrine has been roundly criticized as unjust and unwarranted.
See Johnson, 481 U.S. at 692-703 (Scalia, J., dissenting); Taber v.
Maine, 67 F.3d 1029 (2d Cir. 1995) (correcting and superseding
Taber v. Maine, 45 F.3d 598 (2d Cir. 1995); Bowers, 904 F.2d at 452
(reaching result with pronounced lack of enthusiasm). We, however,
remain bound by the Supreme Court and our prior precedent.

Accordingly, we reverse the ruling of the district court and
remand for entry of summary judgment dismissing the action.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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