Read et al v. United States of America

Filing 22

ORDER GRANTING 19 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
COLTON J. READ and JESSICA G. READ, §
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Plaintiffs,
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v.
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UNITED STATES OF AMERICA,
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Defendant.

Civil Action No. SA-12-CV-910-XR

ORDER
On this day came on to be considered Defendant's motions to dismiss (docket no. 19).
Background
At the time of this incident, Colton Read was an airman in the United States Air Force. On
or about July 9, 2009, he was admitted as a patient at Travis Air Force Base's David Grant Medical
Center. He was scheduled to undergo a laparoscopic gallbladder surgery. He alleges in his complaint
that during his procedure the surgical resident, a military doctor, lacerated an aorta that resulted in
massive bleeding. Ultimately as a result of the alleged medical malpractice his legs were amputated.
He, and his wife, bring suit under the Federal Tort Claims Act, 28 U.S.C.A. §§§ 1346, et seq. The
Government argues that the Plaintiffs' claims are barred by the Feres1 doctrine.
Analysis
Plaintiffs argue that the Feres doctrine lacks any basis in the language of the FTCA. They
further argue that the “incident to military service” exception should be disregarded for the reasons

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Feres v. United States, 340 U.S. 135 (1950).
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set forth in various dissenting opinions.2 Finally, they argue that in lieu of the Feres doctrine, courts
should apply the discretionary function exception of the FTCA to medical malpractice claims because
military discipline is not adversely affected when a service member recovers in a medical malpractice
claim.
In Kelly v. Panama Canal Com'n, 26 F.3d 597 (5th Cir. 1994), Captain James Kelly, a U.S.
Army Officer assigned to Fort Kobbe in the Republic of Panama, was killed when the mast of the
catamaran he was sailing struck hanging electrical wires. Captain Kelly was on active duty, but
off-duty at the time. He obtained the catamaran from the Rodman-Marina Sailing Club, which was
a civilian-run club located on the Rodman Naval Station, for his recreational trip.
The Panama Canal Commission argued that the Feres doctrine applied because the injuries
arose out of or were in the course of activity incident to service. In rejecting the Commission's
argument, the Fifth Circuit restated “three rationales for the Feres doctrine: 1) the distinctively
federal nature of the relationship between the government and members of its armed forces, which
argues against subjecting the government to liability based on the fortuity of the situs; 2) the
availability of alternative compensation systems; and 3) the fear of damaging the military disciplinary
structure. See Stencel Aero Eng. Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054,
2057-58, 52 L.Ed.2d 665 (1977).” In this case, the Fifth Circuit noted that Captain Kelly was injured
outside the military installation and engaged in the purely recreational activity of sailing a catamaran
rented from a civilian-run marina.
Courts have been directed to “examine the totality of the circumstances to determine whether

2

See Johnson v. U.S., 481 U.S. 681, 688-700 (1987) (Scalia, J. dissenting); Costo v. U.S.,
248 F. 3d 863, 869-70 (9th Cir. 2001) (Ferguson, J. dissenting); O'Neil v. U.S., 140 F. 3d 564, 565
(3d Cir. 1998) (Becker, C.J. dissenting).
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a serviceman’s injury was incident to military service. Parker v. United States, 611 F.2d 1007, 1013
(5th Cir. 1980). In particular, we consider: (1) the serviceman’s duty status; (2) the site of his injury;
and (3) the activity he was performing. Id. at 1013-15.” Schoemer v. U.S., 59 F.3d 26, 28 (5th Cir.
1995).
In this case it is undisputed that Airman Read was on active duty status at the time of his
injury. It is also undisputed that he was injured at a military installation. Although not directly
addressed by either party, it appears uncontested that he was ill (in need of gallbladder surgery), and
that such surgery was necessary to restore him to military readiness. The Fifth Circuit treats “the
serviceman’s duty status as the most important factor because it indicates the nature of the nexus
between the serviceman and the Government at the time of injury.” Id. at 28-29. In addition, in
medical malpractice cases, the Fifth Circuit replaces the third prong (activity the service member was
performing) with “whether the serviceman's treatment was intended to return him to military service.”
Id. at 29.
Although this Court tends to agree with Plaintiffs’ argument that the usual medical
malpractice claim will not damage the military disciplinary structure, this Court is nevertheless bound
by Supreme Court and Fifth Circuit authority. The majority opinions in these cases hold that receipt
of medical care in military facilities by members of the military on active duty is activity incident to
service.3 In addition, the Fifth Circuit has held that Feres applies even if the underlying ailment was
not caused or aggravated by any military activity or duty, and the surgery was elective and not
necessary in order for the service member to perform any of his responsibilities within the military.

3

See also Hudson v. U.S., 461 Fed. Appx. 541 (9th Cir. 2011); Hancox v. Performance
Anesthesia, P.A., 455 Fed. Appx. 369 (4th Cir. 2011); France v. U.S., 225 F.3d 658 (6th Cir. 2000);
Sloan v. U.S., 208 F.3d 218 (8th Cir. 2000).
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See Hayes v. U.S. on Behalf of U.S. Dept. of Army, 44 F.3d 377 (5th Cir. 1995).
Conclusion
The Government’s motion to dismiss (docket no. 19) is granted and this case is DISMISSED.
The Clerk is directed to enter judgment according to Rule 58.
It is so ORDERED.
SIGNED this 26th day of November, 2012.

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XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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