The opinion of the court was delivered by: TENNEY
Audrey Crumpler, administratrix of the estate of her husband John Ray Crumpler, instituted this medical malpractice, wrongful death action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"). The government has moved for summary judgment on the ground that the plaintiff's claim is barred by the Feres doctrine which precludes liability for injuries to servicemen that result from activities incident to military service. For the reasons given below, the motion is denied.
John Ray Crumpler enlisted in the United States Air Force on June 6, 1966. In December 1966, he started to experience seizures, severe headache, and other physical difficulties. About a year later, he was diagnosed as having epilepsy, a psychomotor seizure disorder, by doctors at the U. S. Naval Hospital in St. Albans, New York. Crumpler's case was reviewed by a United States Air Force Physical Evaluation Board ("PEB") in December 1967. The Board recommended that Crumpler be placed on the Temporary Disability Retirement List ("TDRL") with a disability rating of 30%. The PEB later amended its findings but the Physical Disability Appeal Board adopted the original recommendation. Crumpler was thus placed on TDRL on February 26, 1968.
Between 1968 and October 1972, Crumpler underwent a series of medical tests and examinations at various United States Air Force ("USAF") medical facilities. His condition worsened and he continued to be diagnosed and treated as epileptic. Eventually, after conducting a hearing at which Crumpler was present, the PEB recommended that he be permanently retired with a disability rating of 60%. This recommendation was followed by the Secretary of the Air Force and Crumpler was placed on the Permanent Disability Retirement List ("PDRL") on October 12, 1972.
There appears to be some dispute about Crumpler's medical treatment after he was placed on the PDRL. Mrs. Crumpler contends that her husband was examined and treated at several different USAF medical facilities from 1973 until 1976. Affidavit of Audrey Crumpler, sworn to February 1, 1980 ("Crumpler Aff."), P 5. Mrs. Crumpler's affidavit lists the facilities where her husband underwent different tests and treatments at various times. While the government does not directly refute each of these assertions, it apparently adopts the view that any of the medical examinations that could be at issue in this case occurred prior to October 1972 while Crumpler was on the TDRL. Although the government concedes that appointment slips in Crumpler's medical records indicate that he had appointments at the Neurology Clinic at Womack Army Hospital in Fort Bragg, North Carolina on June 16, 1973 and March 5, 1976, it states that "it is unknown from the available records whether he ever made the first appointment." Defendants' Memorandum at 3.
Crumpler died at the age of 29 on February 7, 1976. Dr. Page Hudson, Chief Medical Examiner of the Health Services Division of the North Carolina Department of Human Resources, sent Mrs. Crumpler a letter ten days later which stated that an autopsy revealed that her husband had died from a "huge brain tumor, cancer of the brain." Letter from Page Hudson, M.D. to Mrs. John Ray Crumpler, dated February 17, 1976, Exh. A to Plaintiff's Memorandum. Dr. Hudson indicated that even months before Crumpler's death, nothing could have been done to save his life. His letter continued:
The history Dr. Caldwell and I have is that your husband was discharged from the military because of "spells." I do not know how long ago this was or what sort of "spells" these were. If this was in the past two or three years it is almost a certainty that the brain tumor caused these. If this is the case then you may well be entitled to additional government benefits because of your husband dying of an illness that began while he was in the military.
I am not certain of these benefits, if any, but strongly recommend that you seek legal aid, an attorney or pursue other contacts you may have with the military.
The FTCA allows damage actions against the United States for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). One of the several limitations to this right of action excludes any "claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war". Id. § 2680(j). In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Supreme Court adopted an extremely restrictive interpretation of the Act that does not appear to be supported by the language of the statute but has withstood the test of time and has remained immune from congressional action. Feres actually involved three separate cases in which a serviceman on active duty sustained an injury as a result of the negligent conduct of other members of the military. The Jefferson and Griggs cases involved medical malpractice like the case at bar. Similarly, Feres and Griggs were actions brought by the executrix of the serviceman whose death allegedly resulted from the negligence of military personnel. Ruling on all three cases, the Court held "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 service." Id. 340 U.S. at 146, 71 S. Ct. at 159. The Court's decision was premised on its rather sarcastically stated view that "(t)he Tort Claims Act was not an isolated and spontaneous flash of congressional generosity." Specifically, the Court relied on several distinct factors to justify this judicially-created exception to the FTCA: (1) the fact that no private liability parallel to that asserted by the service members existed at common law; (2) the unfairness that could result from variations in state laws governing servicemen's tort claims; (3) the "distinctively federal" character of the relationship between the government and military personnel and the absence of a federal law permitting damages against the military in these circumstances; and (4) the existence of the Veterans' Benefit Act which provided a system of "simple, certain, and uniform compensation" for injuries or death of armed services members. Id. at 141-44, 71 S. Ct. at 157-158. Finally, the Court concluded that Congress did not intend to create "a new cause of action dependent on local law for service-connected injuries or death due to negligence." Id. at 146, 71 S. Ct. at 159.
The Feres Court sought to distinguish the case of Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949), which was decided the year earlier. Brooks allowed an FTCA action against the government for the death of one serviceman and injuries sustained by another when the automobile in which they were riding on a public highway was struck by an army truck. According to the Feres Court, the "vital distinction" in Brooks was that the injury "did not arise out of or in the course of military duty." 340 U.S. at 146, 71 S. Ct. at 159. Brooks was on furlough, driving on the highway and was "under compulsion of no orders or duty and on no military mission." Id.
A similar result was reached in the 1954 case of United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954). A discharged veteran brought an FTCA suit against the government for injuries sustained from negligent medical treatment. The Court held that the suit was governed by Brooks, not Feres, because the injury "was not incurred while respondent was on active duty or subject to military discipline." Id. at 112, 75 S. Ct. at 143. The respondent had already been discharged and "enjoyed a civilian status." Id. Reaffirming the distinction drawn in Feres "between injuries that did and injuries that did not arise out of or in the course of military duty," the Court ruled that the negligent act in Brown was not "incident to military service." Id. at 113, 75 S. Ct. at 143.
The Supreme Court recently reiterated its adherence to the Feres doctrine in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977). A serviceman had brought a tort suit against a private defendant and the latter sought indemnity from the United States under the FTCA on the theory that the government was primarily responsible for the aircraft malfunction that caused the serviceman's injuries. In holding that the indemnity suit was barred under Feres, the Court reviewed the underpinnings of that rule:
First, the relationship between the Government and members of its Armed Forces is "distinctively federal in character" . . .; it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stationed at the time of the injury. Second, the Veterans' Benefits Act establishes, as a substitute for tort liability, a statutory "no fault" compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government. A third factor was explicated in United States v. Brown, 348 U.S. 110, 112 (75 S. Ct. 141, 143, 99 L. Ed. 139) (1954), namely, "(t)he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such ...