Semi-Hypothetical Feres Doctrine Question

[pgg]

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So, I'm an AD anesthesiologist, and I moonlight a bit. Mostly the scheduler is able to keep me out of cases where the patient is a Tricare beneficiary, because they can't get paid for any care I deliver. This motivates them to be diligent when assigning cases.

But every once in a while, an emergency, call, or add-on case comes in, and I do the case anyway, and nobody gets billed and nobody gets paid. Happens rarely, no big deal.


But what if there's a complication, and an active duty patient wants to sue for malpractice?

Can he do so? I carry my own liability policy that I pay for, in order to cover my moonlighting. But I'm not getting paid, and he IS active duty, getting care from an active duty physician (me), albeit at a civilian facility.


I was wondering about this Friday, when I did a case in a sick-as-hell retiree with resp and heart failure, who ended up spending the weekend in the ICU on a vent. Now, he's a retiree so the Feres Doctrine question is moot, and there wasn't a sue-able complication, but it made me wonder - what if he was AD and died and his family wanted to sue?

 

[orbitsurgMD]

Interesting question. If the member were AD, and you were not being paid because he was enjoying his AD benefits albeit at a civilian facility (which is an arrangement routinely made at some USA locations, IIRC, Newport, RI being one) does the member enjoy a right to sue for damages outside of Feres? Or for that matter, does the facility also enjoy Feres protection, as an agent of the government as they effectively would be, were they not performing as a contractor on other terms?

I don't know, but I would bet a decent lawyer could sort this out.

 

[IgD]

I suspect the feres doctrine would not apply since you are not providing treatment at the MTF or for the government. The liability would fall on you and the hospital where you were working.

 

[MTGas2B]

Tend to agree. I was always taught that Feres applied to torts against government officials who are carrying out their official duties. A moonlighting physician is not performing their official duties.

Not a lawyer, but if you are unable to bill for your services doesn't that change things? Doesn't that acknowledge you represent the government while caring for Tricare enrollees.

Pgg you should ask your malpractice carrier about that one.

 

[colbgw02]

Not a lawyer, but if you are unable to bill for your services doesn't that change things? Doesn't that acknowledge you represent the government while caring for Tricare enrollees.

Pgg you should ask your malpractice carrier about that one.

Well, that's what makes this scenario interesting. If the reimbursement schemes were different and moonlighting military physicians could bill for Tricare patients, then I doubt this question even gets asked. I think most of us would agree that if the provider could bill for the services, then this falls well outside the bounds of the Feres Doctrine. So the question is: does the payment involve alter the nature of the relationship?

My suspicion is that the answer is 'no' - that the law considers the two issues completely separate. To wit, whether or not a military physician is reimbursed for the care he provides has no relationship on whether or not that physician is performing his official duties. If the physician is not at his official duty station, wherever that might be, then he could be doing pro bono work, practicing cottage medicine, or filing a claim with an insurance company - his liability is the same.

Exceptions exist to the Feres Doctrine if the courts find that the injured party could have been harmed in a similar manner if he were a civilian. That exception may apply here, since the injured servicemember sought care as a de facto civilian. However, I admit that my understanding of the law is not well-developed enough to distinguish this scenario and a servicemember seeking routine care at a MTF. Namely, why would the exception apply to this scenario, but the military physician who botches a routine cholecystectomy at Military Hospital X remains protected?

 

[pgg]

Clear as mud.

Here's some more dirt to throw in the water:

Sometimes I get paid a flat $ amount to cover a period of call. Whether I do zero cases or work nonstop, I get the same amount. The anesthesia group collects a hospital subsidy independent of the amount of work they or their contractors do. They also bill patients' insurance directly (unless it's a AD moonlighter taking care of a Tricare beneficiary).

So ... if I'm getting paid from dollars the hospital pays the group for "coverage" which the group pays me for "coverage" ... but the group isn't billing Tricare, does that change anything? Because the hospital bills Tricare for facility fees, etc.



Surely the rational solution is to scrap the whole Feres Doctrine entirely.

 

[MTGas2B]

You pay for your own malpractice policy, right? I assume they have service line you can call or email with your question. I'd be curious to hear what they have to say.

 

[orbitsurgMD]

Well, that's what makes this scenario interesting. If the reimbursement schemes were different and moonlighting military physicians could bill for Tricare patients, then I doubt this question even gets asked. I think most of us would agree that if the provider could bill for the services, then this falls well outside the bounds of the Feres Doctrine. So the question is: does the payment involve alter the nature of the relationship?

My suspicion is that the answer is 'no' - that the law considers the two issues completely separate. To wit, whether or not a military physician is reimbursed for the care he provides has no relationship on whether or not that physician is performing his official duties. If the physician is not at his official duty station, wherever that might be, then he could be doing pro bono work, practicing cottage medicine, or filing a claim with an insurance company - his liability is the same.

Exceptions exist to the Feres Doctrine if the courts find that the injured party could have been harmed in a similar manner if he were a civilian. That exception may apply here, since the injured servicemember sought care as a de facto civilian. However, I admit that my understanding of the law is not well-developed enough to distinguish this scenario and a servicemember seeking routine care at a MTF. Namely, why would the exception apply to this scenario, but the military physician who botches a routine cholecystectomy at Military Hospital X remains protected?

That would require that the government hold two mutually contrary positions on the same party and the same act. On one hand, the doctor cannot bill because he is an active duty service member, not just because the patient is an active duty member, so his work would be effectively government work, i.e., "official duties." If the doctor were not active duty, he could bill for his work. The patient's active duty status is necessary but not sufficient to wrap the service as a government benefit. Where he is doing the work is not relevant, Feres applies outside government facilities, on deployment, wherever. To say then that Feres would not protect the doctor because the duties are somehow "not official" turns the notion of official duties on its head, or requires one hold that the same service provided active duty members is at once an official duty and not an official duty. Given that the government demands consideration in this case, services from active duty members included in active duty pay, then the other conditions of active duty service should also apply, including protection under Feres. And it makes sense when you consider every other aspect of an active duty doctor's life, personal time is subject to capture under official orders, moonlighting requires command permission and its practice benefits presumably accrue some benefit to the government in improving practitioner case experience.

I would bet a strong case could be made for protection under Feres.

 

[colbgw02]

That would require that the government hold two mutually contrary positions on the same party and the same act. On one hand, the doctor cannot bill because he is an active duty service member, not just because the patient is an active duty member, so his work would be effectively government work, i.e., "official duties." If the doctor were not active duty, he could bill for his work. The patient's active duty status is necessary but not sufficient to wrap the service as a government benefit. Where he is doing the work is not relevant, Feres applies outside government facilities, on deployment, wherever. To say then that Feres would not protect the doctor because the duties are somehow "not official" turns the notion of official duties on its head, or requires one hold that the same service provided active duty members is at once an official duty and not an official duty. Given that the government demands consideration in this case, services from active duty members included in active duty pay, then the other conditions of active duty service should also apply, including protection under Feres. And it makes sense when you consider every other aspect of an active duty doctor's life, personal time is subject to capture under official orders, moonlighting requires command permission and its practice benefits presumably accrue some benefit to the government in improving practitioner case experience.

I would bet a strong case could be made for protection under Feres.

I understand the logical inconsistencies, but I don't think it would matter. As much as we'd like it to be, the law doesn't always follow logic, nor is it internally consistent.

From the court's opinion: the alleged negligence must have been committed by someone "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."

And again, I understand the argument - the nature of the reimbursement scheme between a Tricare provider and Tricare beneficiary creates a de facto on-duty scenario, where Feres would apply. However, I don't think a de facto scenario based on Tricare regulations is enough to overturn an explicit relationship outlined by ODE regulations.

 

[orbitsurgMD]

Tricare is establishing the agency here; they are 1. agents of the government, and 2. claiming that an active duty physician providing services to an active duty member outside a government-owned facility constitutes official duties and therefore may not be paid for by the government under the Tricare program. The government might try to pretend it can hold contradictory positions but I doubt that they would want to try that before a Federal court. Same act, same actor can't be two mutually exclusive things. And I don't see any inconsistency with the ODE citation you give; the doctor is a military member acting within the scope of his official duties, in fact they make the argument themselves.

They would have a tough time dodging Feres given their longstanding exclusion of payment based on what is in essence an official duties argument.

I think this would quickly devolve to a matter of estoppel.

 

[bogatyr]

If you get run over by a humvee on a training exercise the Feres doctrine would apply. Does anyone think the Feres doctrine still applies if that same individual were to run you over in his POV off post? I see it as the same argument.

 

[edmadison]

I think a little legal background would be helpful here.

1) The government (and its agents) have sovereign immunity. You can't sue the government unless it has consented to be sued (there are some exceptions, but they don't apply to this case).

2) The Federal Tort Claims Act establishes ways you can sue the government when it has injured you (usually through one of its agents). If an FBI agent accidently shot you, you could sue the government for that negligence through the FTCA.

3) The Feres Doctrine is an exception to the FTCA. It blocks active duty service members from suing the government or its agents for negligence while the service member is doing his/her job (this is losely interpreted -- sleeping in the barracks would meet this test).

The Feres doctrine is not applicable in this case because there is no sovereign immunity/FTCA case. PGG is working outside the system. He is not acting as an agent of the United States government.

Ed

 

[Gastrapathy]

He is not acting as an agent of the United States government.

Ed

This is the key question. Is he acting as an agent of the USG? Well, he's AD 24/7, his command authorized his moonlighting with the express instruction that he not bill TRICARE and he provided medical care to an AD service member. I'm not really sure you can say with certainty how a court would rule.

 

[orbitsurgMD]

This is the key question. Is he acting as an agent of the USG? Well, he's AD 24/7, his command authorized his moonlighting with the express instruction that he not bill TRICARE and he provided medical care to an AD service member. I'm not really sure you can say with certainty how a court would rule.

It goes further than that: he cannot bill Tricare because the doctor is an active duty member performing a service for another active duty member which they claim is ineligible because the service is an official duty which therefore makes it ineligible for Tricare payment. If the doctor was a civilian contractor, Feres would not apply.

They have claimed official duty as the cause for exclusion of Tricare payment. They would have to claim the opposite, as agents themselves of the government, to exclude Feres.

 

[orbitsurgMD]

If you get run over by a humvee on a training exercise the Feres doctrine would apply. Does anyone think the Feres doctrine still applies if that same individual were to run you over in his POV off post? I see it as the same argument.

That might also possibly enjoy Feres protection (or enjoinder, depending on which side of the tort you are sitting) but it is not the same argument. A doctor providing medical services is manifestly performing duties as a doctor. All that follows is checking the boxes for both his and the patient being active duty. Government says this is then official duty. And they have memorialized this claim by virtue of their longstanding exclusions of Tricare payments for services performed under those circumstances, because it is "official duty."

Would doctor at home on the recall roster be engaged in "official duties?" Case for that.
Would HM3 Smith at home also on a recall roster be the same? Probably. If HM3 Smith T-bones LT Jones (MC) on the way to WalMart, does Feres apply? I bet it does.

 

[edmadison]

I think everyone is focusing on the correct issue here: is the doctor acting as an agent of the Government at his moonlighting job? I think the argument that he is an agent because he cannot bill is a fair one, but ultimately a loser for two reasons. First, There is a tremendous body of law on what constitutes scope of employment for the FTCA. Factors such as who controls your hours, who tells you where to work, who establishes workplace standards are all key to this. Although the commander assents to the moonlighting, ultimately it is the moonlight hospital that determines these issues. Also note that you must have a state medical license to moonlight where in a military setting your license can be from anywhere.

The second argument is more practical. If you argue that the moonlighting physician is acting within the scope of his military position when working at the outside hospital because the service members and their dependents cannot be billed, then you open up a huge new liability under the FTCA. Although the AD members couldn't sue under the Feres doctrine, the dependents could sue under the FTCA. This makes a routine state malpractice case a federal one and requires suit against the United States rather than the provider. I think it's a really hard sell to argue that sovereign immunity and the FTCA apply here.

That being said, if you came into my law office as the physician, I probably would take the case and try to make the opposite argument -- you never know what the judge will say.

Ed

 

[orbitsurgMD]

Re scope of employment:
Who controls your work hours? Here, your commanding officer and his designated subordinates. They also have the authority to deny moonlighting requests at their discretion, and can order you to quit at any time for any reason. Workplace standards are set by, you guessed it, the government, at least as concerns federal statute and regulation that governs both military and civilian workplaces. The place from which one has a state license should not be relevant, only that one has one.

Cart, meet Horse. The moonlighting physician is working within the scope of his official duties because the government says it is so, and that is the basis for denying payment for that service under Tricare, not the other way around. Oh, and the government has enjoyed consideration on that argument. And why should it be so hard for a sovereign immunity issue to be accepted or understood? That happens all the time. It's part of routine pre-trial fact finding and case assessment. So what if a local lawyer has to put on his shiny shoes and try the case in front of a judge he doesn't know.

I suspect this would be dismissed under Feres, probably summarily.

 

[pgg]

You pay for your own malpractice policy, right? I assume they have service line you can call or email with your question. I'd be curious to hear what they have to say.

I asked and am awaiting a response. I'll post what they tell me here.