Number 147, November 2004:
Professional Malpractice Liability for Recalled Reservists in Health-Care and Legal Services Professions
BY COL JOHN S. ODOM JR., USAFR, * AND CAPT SAMUEL F. WRIGHT, JAGC, USNR*
Q: I am a major in the Army Reserve Medical Corps and an obstetrician in private practice, and I am being called to active duty soon. I am concerned about paying my medical malpractice premiums while on active duty, because my annual premium is greater than my annual salary as a major. I cannot afford to pay the premium, but neither can I afford to be without the insurance.
I have performed many deliveries in the weeks and months leading up to my entry on active duty. My medical malpractice insurance is written on a claims made basis: I need to have insurance in effect at the time a claim is made, not just at the time of the alleged malpractice. Even if I perform no more deliveries (in my private capacity) after I am mobilized, I could easily be sued while on active duty for a delivery that I performed before entering active duty. I am losing sleep over this. Help!
A: Don't worry, because Congress solved this problem in 1991, with an amendment to the Soldiers' and Sailors' Civil Relief Act (SSCRA). On December 19, 2003, President Bush signed the Servicemembers' Civil Relief Act (SCRA), a long-overdue comprehensive rewrite of the SSCRA, which was originally enacted in World War I and re-enacted on the eve of World War II. The provision we have in mind is codified in 50 United States Code Appendix, section 593 (50 U.S.C. App. 593).
Under this provision, you can safely suspend your medical malpractice insurance during the period of active duty. Upon your release from active duty, the insurance company is required to reinstate your coverage at the same premium even if the company is aware that there is a claim pending against you. The insurance company may not like this result, but it is the law. If someone sues you (or files a claim in those states requiring medical review panels before suit can be filed) while you are on active duty because of alleged malpractice that occurred before you entered active duty, that suit or claim will be stayed (held in abeyance) until you leave active duty. See Section 593(f).
Note: The protections of Section 593 apply not only to physicians but also to dentists, nurses, nurse anesthetists and other health-care providers, as well as attorneys and paralegals. While the SCRA authorizes the Secretary of Defense to designate other services to be professional services for purposes of Section 593, no professions other than health-care and legal services have been so designated.
You need to notify your insurance carrier now of the fact that you are entering active duty. You must do so in writing, and we suggest you do so by certified mail. A military legal assistance attorney can assist you with this critical step. You should either go to your post or base legal office or to http://assistance.law.af.mil. That Web site will show you, from your ZIP code, the nearest military (not necessarily Air Force) legal assistance office. Call and make an appointment today.
Q: But what about possible medical malpractice liability as a result of medical care that I provide while on active duty, in the scope of my military service?
A: Congress solved that problem in 1975, when it enacted the Gonzalez Act. For almost 30 years now, military physicians, dentists, nurses, etc., have been individually immune from suit for alleged malpractice in their government capacities. It is conceivable that a suit could be filed against the U.S. government, and that the government could have to pay if you were negligent, but you personally are immune from individual liability. Congress later extended this individual immunity to federal employees generally, military and civilian, in the medical context and in every other context. See 28 U.S.C. 2679(b)(1).
Q: I thought that servicemembers were precluded from suing the government under something called the Feres doctrine. What gives?
A: More than half a century ago, and just four years after the Federal Tort Claims Act (FTCA) was enacted, the Supreme Court determined that there is no cause of action under the FTCA for wrongful death of or personal injury to a member of the armed forces if the injury or death was incident to service. See Feres v. United States, 340 U.S. 135 (1950). The incident to service standard is very broad; it includes medical malpractice and many other potential causes of action. In Feres, the Supreme Court consolidated three cases for purposes of argument and decision, two medical malpractice cases and a third case about a barracks fire that resulted in the death of an Army officer, Lieutenant Feres.
The Feres doctrine does not preclude suits against the government by military retirees, dependents, and others for their own injuries. If, for example, you perform deliveries on military wives while you are on active duty, there could conceivably be an FTCA suit against the federal government alleging negligence on your part, brought on behalf of either the mother or the infant. But if a claim arises from the death of or injury to a service member, the claim is Feres-barred regardless of who (estate, widow, widower, etc.) brings the claim.
Q. What if I had just paid my entire year's malpractice premiums when I got mobilized? Can I get a refund from the carrier for the unused portion of the policy year after I suspend the policy?
A: Yes, if you want a pro rata refund for the remainder of the policy year, you are entitled to one. You may also tell the insurer to keep the unearned premium to apply it to any unpaid premium becoming due upon the reinstatement of the coverage. See Section 593(b)(2)(B).
Q. What if someone had a malpractice action pending against me at the time I was mobilized? What happens to that action?
A: Under a separate provision of the SCRA (Section 522), your attorney will be able to request a stay of those proceedings (whether it is a suit or an administrative claim) if your military duties prevent you from being present and assisting in the defense. Provided you follow the requirements of the statute and your commanding officer is willing to sign a letter to the effect that you cannot be granted leave for the civil matter, the action is required to be stayed.
Q. How do I need to notify my malpractice insurer when I'm released from active duty? How long do I have to give notice that I want to reinstate my policy?
A: You must notify your carrier that you want to reinstate the policy within 30 days of your release from active duty. Do it in writing and send the notice via certified mail. The carrier then notifies you of the due date for payment of the premium and you must pay the premium within 30 days after receipt of that notice, or you may forfeit the right to force the carrier to reinstate your policy. See Section 593(c).
Q: What if I moonlight while I am on active duty? Will I need medical malpractice insurance for that?
A: Most definitely yes. Moreover, you will need the prior permission of your commanding officer to practice medicine outside your military duties. The Joint Ethics Regulation (applicable to all branches of the Armed Forces) provides that work outside of military duties cannot interfere with the performance of military duties. Your commanding officer has the authority to permit or deny permission for outside employment. See 5 C.F.R. 2635.802; DoD 5500.7-R.
We strongly advise you not to try to practice your profession while on active duty, except in your military capacity. Our advice applies not just to physicians but also to all members of the armed forces, and particularly Reserve Component members who have been recalled to active duty for a national emergency. We invite your attention to Law Review 106, Don't Try to Work at Your Civilian Job While on Active Duty.
One of the great lines in the 1954 classic film, The Caine Mutiny, came when Commander Queeg, played by Humphrey Bogart, told Lieutenant Keefer (Fred McMurray), War is a 24-hour job. There will be no novel-writing on the USS Caine. The same point can be made today for Reserve and Guard members called to active duty who may be tempted to continue practicing their civilian professions while in uniform. While you are on active duty you should be devoting your full time and attention to your military duties.
Q. I have a friend in the Reserve JAG Corps who has also been mobilized. I know he wants to do something to cut his expenses while he's on active duty. Can he suspend his malpractice coverage just like the doctors?
A: Short answer: yes. Each of the answers above regarding medical malpractice liability insurance applies equally to policies of professional liability insurance covering providers of legal services (e.g., attorneys, paralegals, title examiners).
* Military title used for purposes of identification only. The views expressed herein are the personal views of the authors and should not be attributed to the U.S. Marine Corps, the Department of the Navy, the Department of Defense, or the U.S. government. The best way to reach Captain Wright is by e-mail, at email@example.com.