United States Court of Appeals,
Fifth Circuit.
No. 94-40774
Summary Calendar.
Cherrie HAYES, spouse of David Hayes, and tutrix for Michael
Stewart Hayes and Ehren Scott Hayes, Plaintiff-Appellant,
v.
The UNITED STATES of America on Behalf of U.S. DEPARTMENT OF ARMY
and Dr. Brian T. Anthony, Defendants-Appellees.
Feb. 15, 1995.
Appeal from the United States District Court for the Western
District of Louisiana.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Cherrie Hayes, the widow of decedent David Hayes, appeals the
district court's order dismissing her malpractice claim against the
United States government (Government) for lack of subject matter
jurisdiction pursuant to Feres v. United States, 340 U.S. 135, 71
S.Ct. 153, 95 L.Ed. 152 (1950). We affirm.
FACTS
Hayes instituted a medical malpractice action under the
Federal Tort Claims Act, alleging the following facts: Dr. Brian
R. Anthony (Anthony) severed David Hayes's hepatic vein during an
elective hernia operation on July 6, 1993. The severing of the
vein, along with Appellees' failure to properly respond after the
vein was severed, caused David Hayes's death. David Hayes was an
active member of the United States Army at the time of his death.
Anthony, a Captain in the Medical Corps, was employed by the
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Department of the Army as a physician, and at all times relevant to
this action was acting within the scope of his employment.
Further, the United States, through the Department of the Army,
operated Bayne-Jones Community Hospital at Fort Polk, Louisiana
where the surgery was performed.
THE FERES DOCTRINE
The issue of whether the district court properly applied
Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152
(1950) to preclude Hayes's claim is a question of law which we
review de novo. Adams v. United States, 728 F.2d 736, 738, n. 3
(5th Cir.1984).
The Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b),
permits the United States to be sued in federal district courts for
the negligent or wrongful acts of its employees. The FTCA is a
limited waiver of the sovereign immunity of the United States and
has been strictly construed in favor of the United States. Vernell
v. United States Postal Service, 819 F.2d 108, 111 (5th Cir.1987).
The Supreme Court has articulated an exception to the FTCA waiver
of immunity, referred to in subsequent jurisprudence as the "Feres
doctrine," holding that the Government is not liable under the FTCA
for injuries to servicemen where the injuries arise out of or are
in the course of activity incident to service. Feres, 340 U.S. at
146, 71 S.Ct. at 159.
This Court has held that the Feres doctrine precludes a suit
brought under the FTCA against the Government for damages sustained
by a service man on active duty during elective surgery performed
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by military doctors. Lowe v. United States, 440 F.2d 452 (5th
Cir.1971); see also Coyne v. United States, 411 F.2d 987, 988 (5th
Cir.1969).
In 1985 the Supreme Court reaffirmed the Feres doctrine, but
instructed courts to take a case-by-case, rather than per se
approach to claims for immunity:
The Feres doctrine cannot be reduced to a few bright-line
rules; each case must be examined in light of the statute as
it has been construed in Feres and subsequent cases.
United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3043, 87
L.Ed.2d 38 (1985). Appellant emphasizes that David Hayes's hernia
was not caused or aggravated by any military activity or duty, and
that surgery was elective and was not necessary in order for him to
perform any of his responsibilities within the military. She
contends that the concerns that provided the under-pinnings of
Feres (the distinctively federal nature of the relationship between
the Government and members of the armed forces, the availability of
alternative compensation systems, and the fear of damaging the
military disciplinary structure, Stencel Aero Engineering Corp. v.
United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52
L.Ed.2d 665 (1977)) do not justify applying the doctrine to this
case. Further, the Supreme Court has narrowed the reasons for
applying the Feres doctrine to concerns respecting the management
of the military; that is, concerns that call into question basic
choices about the discipline, supervision, and control of a
serviceman. United States v. Shearer, 473 U.S. 52, 58, 105 S.Ct.
3039, 2043, 87 L.Ed.2d 38 (1985).
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However, irrespective of the evolving rationale, the Supreme
Court has made it clear that the Government remains immune from
suits by servicemen where the injuries arise out of or are suffered
in the course of activity incident to service. United States v.
Johnson, 481 U.S. 681, 692, 107 S.Ct. 2063, 2069-70, 95 L.Ed.2d 648
(1987). Medical malpractice by a physician employed by the
military, in a military hospital, and in the course of treatment of
a person in active military service has been clearly held to fall
within "the course of activity incident to service." Shults v.
United States, 421 F.2d 170, 171-72 (5th Cir.1969). The fact that
the underlying cause of the hernia was not connected to David
Hayes' military service is not instructive. The injury complained
of, the severed vein, was "incident to service" and therefore not
actionable under FTCA.
We therefore AFFIRM the district court's dismissal of
Appellant's action.
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