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ANTOINE v. UNITED STATES

January 31, 1992

JILL A. ANTOINE, and GREGORY A. ANTOINE, Plaintiffs,
v.
UNITED STATES OF AMERICA Defendant.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 On April 5, 1991, plaintiffs filed a complaint with this court seeking damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., for injuries allegedly resulting from negligent medical care provided by employees of the United States Army. The case comes before the court on defendant's motion to dismiss. Upon consideration of defendant's memorandum of points and authorities in support of its motion to dismiss, plaintiffs' memorandum of points and authorities in opposition, and defendant's reply, defendant's motion to dismiss will be granted.

 FACTS

 Plaintiff Major Jill Antoine is an active duty Army officer assigned to the Walter Reed Army Medical Center (WAAMC). Major Antoine has been on active duty continuously since March 1985. Motion to Dismiss (Motion), Attachment 1 at para. 3. As an active duty Army officer, Major Antoine was and is entitled to medical care and treatment in military medical facilities, Including WRAMC. Id. at para. 4. In September of 1988, while stationed at WRAMC and assigned to duty at Fort Myer, Virginia, Major Antoine underwent an MRI *fn1" scan for her back and neck at WRAMC as part of treatment for back pain she was experiencing. Plaintiffs' Memorandum of Points and Authorities in Opposition to Motion to Dismiss (Opposition) at 1. The subsequent MRI report stated that Major Antoine had a mass in her neck on which follow-up using ultrasound was recommended. Id. Plaintiffs allege the examining physician failed to inform them of the findings and recommendations of the MRI report. Id.

 The mass was later found to be malignant cancer of the thyroid for which Major Antoine underwent a radical thyroidectomy and chemotherapy. Id. Plaintiff Major Jill Antoine subsequently brought this action for pain, suffering, mental anguish and loss of earnings. Complaint at para. 12. Plaintiff Gregory Antoine (plaintiff Jill Antoine's husband) then joined in this action for loss of consortium and loss of the services of his wife. Complaint at para. 14. Plaintiffs bring their claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. The defendant subsequently filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. for lack of subject matter jurisdiction and failure to state a claim for which relief can be granted.

 ANALYSIS

 A. The Feres Doctrine

 The Issue to be resolved in this case is whether this Court has subject matter jurisdiction over a claim, brought under the FTCA, in which an active duty Army officer asserts that she was injured because of negligent Army medical care. Defendant argues that plaintiffs' claim is barred by application of the Feres doctrine which states 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 military service." Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950).

 Plaintiffs argue, first, that although Feres controls in this case, "[it] is simply unfathomable that obtaining a technical diagnostic procedure for a condition completely unrelated to service in the military could be considered an 'activity incident to service' in the armed forces." Opposition at 2. Here, since all parties to the action agree that the Feres doctrine applies, all that is left for the Court to determine is whether the activity, in which plaintiff was engaged at the time of her injury, is in fact considered "incident to service" within the meaning of Feres.

 B. The "Incident to Service" Test

 As defendant points out, both of the companion cases decided along with Feres involved suits against the Government by active duty military personnel for medical malpractice which arose out of medical care provided by military hospitals. Motion at 13. On this point of law, the Fourth Circuit held that although "active duty status, standing alone, is insufficient to invoke the Feres doctrine's bar (See e.g. Pierce v. United States, 813 F.2d 349 (11th Cir. 1987); Johnson v. United States, 704 F.2d 1431 (9th Cir. 1983))[,] . . . the fact that [plaintiffs'] injury occurred as a result of medical treatment by military doctors, . . . conclusively demonstrates that the injury was 'incident to service.'" Appelhans v. United States, 877 F.2d 309, 311 (4th Cir. 1989). This Court agrees with Fourth Circuit.

 The other Circuit Courts also agree with this reasoning and have consistently held that because the injured individual "could not have been admitted, and would not have been admitted, to the [military] hospital except for his [or her] military status . . . it inescapably follows that whatever happened to him [or her] in that hospital and during the course of treatment had to be 'in the course of activity incident to service.'" Stutts v. United States, 421 F.2d 170 (5th Cir. 1970). See, e.g., Rayner v. United States, 760 F.2d 1217, 1219 (11th Cir. 1985) ("The provision of benefits to soldiers because of their status as military personnel is considered "activity incident to service."); Madsen v. United States, 841 F.2d 1011, 1014 (10th Cir. 1987) ("once it is determined that a service member . . . was on active duty during the time military medical was rendered, the treatment is necessarily incident to service and judicial inquiry ends."). This Court, in fact, held that in "cases involving tortious acts against an active duty serviceman which are alleged to have occurred solely at the hands of military doctors working at military medical facilities and performing official duties . . . In itself is a sufficient basis on which to invoke Feres immunity." Misko v. United States, 453 F. Supp. 513, 514 (D.D.C. June 22, 1978).

 In the case before the Court, there is no dispute that plaintiff Jill Antoine is bringing a tort claim against the Government for injuries alleged to have occurred due to the negligence of military doctors working at military medical facilities and performing official duties. Thus, it necessarily follows that the Government is ...


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