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Tort/Negligence – FTCA – Medical Malpractice – Army Hospital – Private Contractors – Gonzalez Act – Anesthesia – C-Section – Feres Doctrine

Tort/Negligence – FTCA – Medical Malpractice – Army Hospital – Private Contractors – Gonzalez Act – Anesthesia – C-Section – Feres Doctrine

Glenn v. Performance Anesthesia, P.A. (Lawyers Weekly No. 10-02-0847, 15 pp.) (W. Earl Britt, Sr.J.) E.D.N.C.

Holding: Since the defendant-anesthetists were working for the Army pursuant to a personal services contract, plaintiff’s only avenue for relief is the Federal Tort Claims Act. And since plaintiff’s decedent was giving birth at an Army hospital because she was active-duty military, the Feres doctrine bars recovery.

The anesthetists’ motion to dismiss is granted. Because their practice remains a defendant, this action is remanded to Cumberland County Superior Court.


On June 21, 2007, plaintiff’s decedent was a pregnant, active duty soldier when her water broke, and she went to Womack Army Medical Center for treatment. In preparation for a Caesarian delivery, the individual defendant-anesthetists inserted an intrathecal catheter into decedent. During placement of the catheter, the dura surrounding decedent’s spinal cord was punctured. Decedent delivered her son.

As a result of the puncture, decedent contracted meningitis. She died on June 27, 2007.

Party Substitution

The Attorney General certified that the anesthetists were acting within the scope of their employment as employees of the U.S. operating under personal services contracts with the Army, and the U.S. was substituted for those defendants.

Under the FTCA, an “employee of the government” includes “officers or employees of any federal agency, members of the military … and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” 28 U.S.C. § 2671.

The AG’s certifications answer the question of whether the anesthetists were acting within the scope of their employment, not the threshold question of whether they were federal employees. As a result, the court gives no evidentiary weight to the AG’s certifications in resolving the issue of whether the anesthetists were employees of the government.

Gonzalez Act

The Medical Malpractice Immunity Act, 10 U.S.C. § 1089, is commonly known as the Gonzalez Act. Pursuant to the Gonzalez Act, health care providers who serve under a personal services contract authorized by the U.S. Secretary of Defense are deemed to be employees of the government for the purpose of personal injury claims.

The anesthetists were operating under a personal services contract. The fact that the contract was entered into by defendant Performance Anesthesia, P.A., and not the individual anesthetists is immaterial. 32 C.F.R. § 107.5(a) clearly contemplates the ability of the Secretary of Defense to contract with an entity for the personal services of its individual employees, while treating those individuals as employees of the government for purposes of the FTCA.

As a result, the anesthetists are immunized by the Gonzalez Act, and they are not proper defendants. Any claims against them are, as a matter of law, claims against the U.S. Thus, the substitution of the U.S. for the anesthetists was proper, and a suit under the FTCA is plaintiff’s exclusive remedy.

Feres  Doctrine

In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held “that the government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” The Feres doctrine provides a blanket of immunity to protect the government against allegations of negligence in military contexts.

As a general rule, injuries sustained as a result of medical treatment at military facilities are “incident to service.” In circumstances involving alleged medical malpractice, courts have routinely found any lawsuit to be barred by Feres. Furthermore, Feres bars suits for medical malpractice even when the treatment was not for military-related injuries.

Plaintiff’s decedent was an active duty Army soldier at all times relevant to the incidents alleged in the complaint. She was entitled to treatment at Womack because of her status as an active-duty member of the military. The injuries are alleged to have resulted from the negligence of medical staff who were serving under a personal services contract pursuant to the Gonzalez Act. Thus, any injuries that decedent sustained as a result of such medical care were service-related injuries, and any claims that decedent had as a result are barred by the Feres doctrine.

Feres also bars recovery by family members where the cause of action is ancillary or derivative to the serviceman’s action for his own injury received incident to military service. Thus, because decedent’s claim is barred, plaintiff’s claim is also barred.

Plaintiff is left without a remedy. The FTCA provides the exclusive mode of recovery for the tort of a government employee even when the FTCA itself precludes government liability.

Motion granted. Remanded to state court.

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