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JOHNSON v. UNITED STATES

April 12, 1990

ARLENE A. JOHNSON, Plaintiff,
v.
THE UNITED STATES, Defendant



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 I. Introduction

 Plaintiff Arlene A. Johnson brings this action against the United States under the Federal Tort Claims Act, 28 U.S.C. ยงยง 2671-2680 (1988) ("FTCA"), alleging that Army physicians and medical personnel negligently misadvised her for almost four months that she had AIDS, which resulted in her having an unnecessary and unwanted abortion. The United States has moved to dismiss on the ground that this action is barred by the Feres doctrine, which prohibits service members from recovering for injuries sustained "incident to service" as a result of negligent conduct on the part of government personnel. See United States v. Johnson, 481 U.S. 681, 686, 95 L. Ed. 2d 648, 107 S. Ct. 2063 (1987); Feres v. United States, 340 U.S. 135, 146, 71 S. Ct. 153, 95 L. Ed. 152 (1950). The motion has been fully briefed by the parties. *fn1" For the purposes of deciding it, we assume that all of plaintiff's factual allegations are true. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Shear v. National Rifle Association of America, 196 U.S. App. D.C. 344, 606 F.2d 1251, 1253 (D.C. Cir. 1979); Smith v. Hurd, 699 F. Supp. 1433, 1435 (D. Haw. 1988).

 II. Background

 At all relevant times, plaintiff was on active duty as a member of the United States Army at the Walter Reed Army Medical Center ("Walter Reed"). On or about September 9, 1986, plaintiff donated blood to a public blood drive sponsored by Walter Reed. At that time, she was informed that her blood would be subjected to routine screening for the AIDS virus. *fn2" Plaintiff was under no military orders or compulsion to donate blood at Walter Reed, and the blood drive was open to the public.

 On or about October 8, 1986, Walter Reed doctors and other hospital personnel informed plaintiff that she had tested positive for AIDS. On that same day, Walter Reed personnel drew a second blood sample from plaintiff for the purpose of conducting followup ELISA and Western Blot tests. *fn3" Walter Reed personnel continued to advise plaintiff that she had AIDS until February 3, 1987, at which time she was told by a Walter Reed doctor that there had been a "mistake," that she "did not have AIDS," and that there had been an "error" in the "paperwork." *fn4"

 In November 1986, prior to being notified of this error, plaintiff discovered that she was pregnant. On November 21, 1986, doctors at Walter Reed advised plaintiff that her child would most certainly be born with AIDS and would not live beyond five years. The doctors indicated that under these circumstances it would be better for plaintiff to have an abortion than to carry the child to term. As a result of this counseling, and for no other reason, plaintiff had an abortion on December 4, 1986. Two months later, plaintiff was informed by Walter Reed that there had been an "error" in the "paperwork" and that she did not have AIDS.

 None of plaintiff's blood tests showed a positive AIDS result. In fact, the ELISA and Western Blot tests showed negative results. Thus, Walter Reed personnel never had any medical basis for advising plaintiff that she had AIDS.

 Plaintiff, on October 5, 1988, submitted a claim for $ 750,000 to the Commanding General at Walter Reed. Her claim was rejected in a letter postmarked March 24, 1989. Plaintiff subsequently brought this action under the FTCA alleging that, because of the negligence of Walter Reed employees, she suffered an unnecessary and unwanted abortion, an unjustified invasion of privacy, and physical and mental pain, including serious and lasting harm to her psychological well-being. Plaintiff is not eligible for compensation for these injuries under any other statutory or administrative scheme. *fn5"

 III. Discussion

 Under the Feres doctrine, the United States is not liable to service members under the FTCA for injuries that "arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146; see also Johnson, 481 U.S. at 686; United States v. Shearer, 473 U.S. 52, 57, 87 L. Ed. 2d 38, 105 S. Ct. 3039 (1985). Three broad rationales underlie this doctrine. First, because of the federal relationship between the government and members of its armed forces, an "underlying federal remedy that provides 'simple, certain, and uniform compensation for injuries'" should be applied. Johnson, 481 U.S. at 689 (quoting Feres, 340 U.S. at 144). A second and independent rationale is the existence of generous statutory disability and death benefits for service-related injuries. Id. (footnote omitted). Third, suits brought by service members against the United States for injuries suffered "incident to service" are the types "of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." Shearer, 473 U.S. at 59. Whether a particular injury arose out of "an activity incident to service" typically depends on the extent to which these rationales are implicated. See Appelhans v. United States, 877 F.2d 309, 311 (4th Cir. 1989).

 Plaintiff argues that her voluntary donation of blood at the blood drive was not "incident to service." For several reasons, we agree. First, when plaintiff charitably donated blood on September 9, 1986, she was "under compulsion of no orders or duty and on no military mission." Feres, 340 U.S. at 146; cf. Valdiviez v. United States, 884 F.2d 196, 198-99 (5th Cir. 1989) (donating blood during a military sponsored drive was not within the scope of a serviceman's employment). Compare Johnson, 481 U.S. at 691 (decedent was killed while performing a rescue mission on the high seas, a primary duty of the Coast Guard of which he was a member). Second, the blood drive was open to the public, not a purely military event. *fn6" The opportunity to donate blood did not turn on plaintiff's active military status; had plaintiff been a civilian, she could and would have made precisely the same contribution of blood. Compare Del Rio v. United States, 833 F.2d 282, 286 (11th Cir. 1987) (as a benefit incident to active military service, plaintiff was eligible for prenatal care at a military hospital). Plaintiff's opportunity to contribute blood was not a benefit incident to active military service. Third, although the Feres doctrine prohibits recovery for medical malpractice suffered "incident to service," see Feres, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (barring two medical malpractice claims); Appelhans, 877 F.2d at 311-312 (Most courts "have held that medical treatment at military facilities is 'incident to service.'") (citations omitted), *fn7" it does not extend to the initial screening of plaintiff's blood at a military sponsored blood drive open to the public. Walter Reed's policy was to screen the blood of all donors, service members and civilians alike. The primary function of this screening is to protect potential donees from contaminated blood, not to provide an occasion for medical advice to donors concerning their own health. *fn8" Under these circumstances, the initial screening of plaintiff's blood and any resultant "error" in the "paperwork" cannot be considered medical treatment received as a benefit "incident to service." Fourth and finally, plaintiff is not eligible for alternative compensation for her injuries under any other statutory or administrative scheme. *fn9"

 The United States places undue weight on Shearer, 473 U.S. 52, 87 L. Ed. 2d 38, 105 S. Ct. 3039, in which the Supreme Court barred an FTCA claim based on the death of a service member who, while off duty and off the base, was kidnapped and murdered by another private. Shearer rested primarily on the third rationale behind Feres, that civilian courts should not "second-guess military decisions" where impairment of "essential military discipline" might result. Shearer, 473 U.S. at 57 (citations omitted). The plaintiff in that case alleged that commanding officers had failed to exercise reasonable control over the private who kidnapped and murdered the decedent. The ...


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