MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Support for members of our all-volunteer military is one of the few things most Americans can agree on. Politicians on both sides of the aisle praise the service and sacrifice of soldiers, sailors, airmen and Marines and their families who keep the home fires burning. Many military members routinely risk their lives and miss birthdays, holidays and milestones while away from their families. Less known is that since 1950 service has also meant giving up the right to sue the government for negligence.

MR. KOJO NNAMDIThe Feres Doctrine prohibits service members from suing for malpractice if they receive shoddy treatment in a military medical facility. And while many malpractice suits filed by or on behalf of military dependents have been settled over the past six decades, a case pending in Florida may set a precedent curbing their rights as well. Joining us in studio is Andrew Tilghman. He is a senior writer and Pentagon correspondent for the Military Times newspaper. That's the Army Times, the Navy Times and the like. Andrew Tilghman, good to see you again.

MR. ANDREW TILGHMANThanks.

NNAMDIJoining us by phone is Jonathan Turley. He is the J.B. and Maurice C. Shapiro professor of public interest law at George Washington University. He's also a practicing defense attorney. Jonathan Turley, how are you? Good to hear from you.

MR. JONATHAN TURLEYGreat. Thank you, Kojo.

NNAMDIJonathan, members of the military have been barred from suing the government for negligence since 1950. How did that come to be the case?

TURLEYWell, it should not have come to be the case, Kojo. In 1946, the Congress passed legislation called the Federal Tort Claims Act. It's a very important law most people don't know about. It allows you to sue the government because they waived what was called sovereign immunity. But there's a line in that law that says that there was one exception for claims, quote, "arising out of combat and activities of the military or naval forces during time of war."

TURLEYAnd there was a question as to how far that exception extended. Now most people, I think, quite wisely said that that was only meant to bar people from suing from combat injuries. That made a lot of sense. But three cases went to the Supreme Court in 1950 that changed the entire equation. Now, these were cases of really gross negligence on the part of the military. They were not combat-related injuries.

TURLEYIn one case, you had an individual who went in for a surgery and the doctor left a 30-inch towel in his stomach, 30 towel in the stomach. And on the towel, it actually said it was the property of the U.S. Army. So these would be rather straightforward tort cases, where you could sue for malpractice.

NNAMDISure.

TURLEYBut the court ruled to the contrary and decided that the Federal Tort Claims Act would bar any lawsuit by military personnel for any form of negligence, whether it's malpractice or any other form of negligence. The result was, in my view, horrific. Thousands of military families have been barred from recovery because of that decision. Even conservatives on the court, like Justice Scalia have denounced the decision as based on what some people would call an activist reading. But it's certainly a very broad, in my view, an unsubstantiated reading of the law.

NNAMDIIf you'd like to join the conversation, call us at 800-433-8850. Have you ever heard of the Feres Doctrine? What questions do you have about it? We might be able to answer them at 800-433-8850. Or you can send email to kojo@wamu.org. Andrew Tilghman, I imagine you signed a fair amount of paperwork when you joined the military. Is the average service member or the average service member's next of kin aware of their rights -- are aware how their rights are curbed under Feres?

TILGHMANI don't think that at the outset most service members are aware of that just because it's such a, well, a large life decision. I think they're probably low on the list of concerns, to be honest. But, you know, as the years go by and these issues come up, I think particularly after, you know, young enlisted guys get married and have a family, it has a far greater implications.

NNAMDIJonathan, over the last six decades the doctrine has been controversial and at times hotly contested. The last time it came before the Supreme Court in the '80s the case was narrowly decided in favor of the Feres Doctrine. You apparently don't think this is constitutionally sound law.

TURLEYI don't. I've been a critic of it my whole career. In fact, I have to say, as a law professor, I know of no other doctrine in my career that has caused so much harm to so many people. Frankly, it makes military personnel sort of budget basement items for torts. I mean, they are cheaper to kill and injure. And what people don't realize is that the vast majority of these accidents are just common garden variety negligence.

TURLEYThey're often committed by civilians, because what happens is that a military base is in competition often with civilian business. They have gasoline stations, theaters, bowling alleys, but they keep the proceeds of those activities. They go back into the base. So it's a big incentive to have these businesses. They often bring in civilians to run them, but they have a huge advantage over their competitors in that they can't be sued when they commit acts of terrible negligence.

TURLEYAnd these really are grotesque acts of negligence. In my study of Feres I did years ago, I found malpractice and negligent conduct occurring in the military that we haven't seen in decades in civilian hospitals or civilian businesses. It's literally the time -- the place that time forgot. It is frozen in the 1950s. And so, it makes military personnel cheap to kill and injure. And it's a very tragic doctrine.

TURLEYAnd it is based, in my view, on the hostility that existed on the court in the 1950s towards all personnel injury cases. I think it had more bearing from that than it did the actual statute.

NNAMDI800-433-8850. In the 1987 challenge, Justice Scalia was the only justice who ruled then and remains on the court today. He wrote a stained dissent that advocates for military families still like to sight today. He wrote that Feres was wrongly decided and heartily deserves the widespread, nearly universal criticism it has received. Andrew Tilghman, on the one hand, this seems sort of practical, military service is inherently dangerous.

NNAMDIAnd if every wounded soldier or family of those killed in action sued the government, there could be legal chaos. But cases in which Feres has been applied aren't limited to combat or even training exercises. How has it been stretched?

TILGHMANWell, I mean, clearly there's an underlying logic to it, which the original federal law was trying to express. I mean, you can't have a commander being worried whether he'd going to be sued or not when he's making split-second decisions on the battlefield. And, you know, there's certainly, as you say, there's training environments where you could envision this being completely reasonable.

TILGHMANI mean, if there -- you have some Marines out in the desert in California and they're practicing a very risky helicopter maneuver and the helicopter crashes, you know, that could be viewed as, you know, part of the reasonable application of this as a combatant activity. But, you know, starting with the Feres doctrine in 1950 and on out, it's been vastly expanded. And I think one of the things -- one of the dynamics at play, which is not even legal, it's as much practical as anything is that a lot of these types of negligence cases, medical malpractice cases come into the court system because attorneys take them on contingency fees.

TILGHMANI mean, most people don't have hundreds of thousands of dollars to launch a lawsuit, so they enter an agreement with an attorney, and the attorney intends to take a certain percentage of whatever the final settlement is. And I think that because this Feres Doctrine places the bar so high for getting these cases into court, there's probably a fair amount of cases that aren't even being filed in the first place and just aren't even looked at closely because attorneys just have to look at the landscape and react accordingly.

NNAMDIWe're getting a lot of calls. And I want to urge our callers to stay on the line. I just want to get through a couple more questions before we get to you because some people would like to make arguments that talk about the advantages of being in the military and maybe even the advantages of the Feres Doctrine. But, Jonathan, we've been talking mostly malpractice so far. But when you talk about what exists on a base, you say that it extends far beyond malpractice. It bars lawsuits in a vast array of activities, including travel, recreation and housing.

TURLEYOh, it's absolutely true. You know, the military has -- is almost a society within itself. It's a fully functioning governmental system. It has everything from theaters to grocery stores. And most of the -- the vast majority of Feres cases are so far removed from combat activities that it's almost farcical. I mean, some of them are criminal. You know, there were eight women in the military that sued the Army in Illinois, because the Army was aware that they had a person working in their office who was a presumed rapist.

TURLEYAnd they did nothing. Eight women were either raped or sodomized or harassed and this was a very typical case of what's called a workplace tort. Companies are liable for not taking steps to protect the employees. The court in this case found that even this guy who's a rapist had to be viewed as something that, quote, "is an important question regarding the management of military personnel" and said the women couldn't sue.

TURLEYAnother Lieutenant McConnell was virtually decapitated by a water ski because the civilian managers on the space failed to take very basic steps to maintain the vehicle. Julius Pringle, where he suffered brain damage after being beaten by a gang, a motorcycle gang who had virtually taken over a military bar with a knowledge of the management and they did nothing as he was beaten almost to death in the parking lot.

TURLEYThey run this gamut and they're all shocking. They're all gross -- cases of gross negligence. And in all the cases, the military and its contractors were able to walk away without any liability.

NNAMDIWell, there is, I guess, in the eyes of some -- another side to the Feres story, we'll start with Tom in Arlington, VA. Tom, you're on the air, go ahead please.

TOMHey, you're missing a key point and that is that the reason that people get money when they sue for negligence is because they need money because something is wrong. You know, they lost income, they have medical bills, they have all that. And one of the key things that the military provides and one of the main logic underlying the Feres Doctrine was that the military provides disability. They provide ongoing medical care.

TOMSo in the event of a medical malpractice they're going to fix the problem. They're going to provide disability. They're going to provide a lifelong pension and probably the longitudinal cost is far more than someone can get in the civilian world than a traditional malpractice court.

NNAMDIWhat do you say to that, Jonathan Turley, everything but pain and suffering?

TURLEYI have to strongly disagree. I teach tort and there's no comparison to the level of compensation. The caller is right. There is a system by which medical support is given. Most of the victims find that a rather painful irony. You know, there's one case involving an older women whose son went in for a very simple operation and came out quadriplegic. And I -- when she tried to sue, they said you can't sue, even though this was the grossest of negligence.

TURLEYAnd they said, but don't worry, you can continue to come to this hospital and get continued medical care. Well, she had to quit her job. It ruined her. Yes, he could go in for medical treatment. It was nothing compared to the type of recovery that he would have received in federal court, where she would have been able to continue to live her life. Instead she really had to give up everything to support him. If the objection was true, there wouldn't be many objections here.

TURLEYAnd then finally, many of the forms of damages that offer deterrents to the military simply aren't included. I think some pain and suffering all the way up to punitive damages, which are obviously rare. But what Feres does is it reduces the incentive for the military and its contractors to take steps to avoid malpractice. That's the reason medical hospitals have been routinely condemned for their lack of care and lack of modernization. That wouldn't happen if they were subject to being sued for having negligent levels of care.

NNAMDIGot to take a short break. When we come back, we will talk about -- we will continue our conversation about the Feres Doctrine and a case pending in Florida where apparently attorneys are trying to use the doctrine another new way. We're still taking your calls at 800-433-8850. You can send email to kojo@wamu.org. Send us a tweet @kojoshow or go to our website, kojoshow.org, join the conversation there.

NNAMDIIf you've ever been in the military and had concerns about your medical care or the care of a loved one, we'd love to hear from you, 800-433-8850. Do you think members of military should be able to sue the government for negligence? Why or why not? We're going to take a short break. I'm Kojo Nnamdi .

NNAMDIWelcome back to our conversation about the Feres Doctrine, which prohibits members of the military for suing for negligence or malpractice if they're being treated in a military hospital. We're talking with Andrew Tilghman, senior writer and Pentagon correspondent for the Military Times newspapers. And Jonathan Turley, J.B. and Maurice C. Shapiro professor of public interest law at George Washington University.

NNAMDIHe's also a practicing defense attorney, and taking your calls at 800-433-8850. Andrew Tilghman, we talked about the case pending in Florida or said we were going to talk about it. But U.S. attorneys are apparently trying to use the Feres Doctrine in another new way. What's happening there? And why is it significant?

TILGHMANWell, as we talked about the limits on service members themselves being able to sue the government has been around for 60-some years. But for the most part, military dependents, spouses, children, if they are the ones who are the victims of alleged medical malpractice, typically they have been able to get their case into court and/or seek a settlement with the Department of Justice. What's interesting about this case in Florida, it's the wife of a Navy sailor and...

NNAMDIJimmy German.

TILGHMANJimmy German, yes. She went in to the naval hospital in Jacksonville, Florida complaining of headaches. And they, you know, sent her home thinking that it was not a very serious situation. And it turns out she was having some brain hemorrhaging and she ultimately had a stroke and died later on. Now, her husband is seeking to file a suit on her behalf. And the U.S. attorney in Florida has raised in the preliminary phase of the trial a very far-reaching argument, saying basically that the medical care administered to Jimmy German's wife is part of military service and it should be barred under Feres.

TILGHMANSo not only is the military medical care provided to the service member themselves protected but potentially all the dependents, according to this argument.

NNAMDIDo you have a sense of why this new approach is being taken?

TILGHMANI don't. Actually, the Department of Justice hasn't really talked much about it. There's a couple of dynamics going on. I mean, first of all, aggressive efforts to keep lawsuits out of court is going to save the federal government some money. Last year, the Supreme Court opted not to hear a challenge to the Feres Doctrine. So there may be some sense in the legal community that this is kind of a safe time to make this argument.

TILGHMANBut it's unclear to me whether this is just the U.S. attorney in Florida making this argument or whether this has been signed off on by high-level policymakers in Washington. That's unclear and DOJ hasn't really talked about it.

NNAMDIYou know, Jonathan Turley, in a 2009 Virginian Pilot article on Feres, Congressman Randy Forbes, Virginia Republican said: It's undeniable that military medical care is in need of improvement. However, quoting here, he said: " I don't think the answer is always just having more litigation." Do you get the impression that what's going on in Florida is taking it, ratcheting it up a notch, so to speak, on the part of the U.S. Attorney's Office? And is that likely without the permission or acknowledgement of the Justice Department?

TURLEYI would think it was done with the permission of Main Justice. And first of all, Andrew's reporting on this has been terrific. He's one of the best reporters in the country. And his writing on that particular case has really raised this issue nationally. I would be surprised if Main Justice did not approve of this because it is a very significant change. And it runs against the grain. Lower court judges have been, as Justice Scalia pointed out, uniformly critical of Feres.

TURLEYI've never seen a doctrine where so many judges will be critical of the doctrine and grudgingly apply it because they have no choice. But we judges are the boots on the ground. They see how harmful this doctrine is. But they have no choice but to continue to apply it and to cause greater harm to these families. But what the Obama administration is doing here is really unbelievable.

TURLEYBecause just as courts have been trying to struggle to find ways to make this doctrine less harmful, the administration is coming in in Florida and could radically expand the doctrine to children and spouses who are injured. And I think that Andrew makes some very good points. The most important one is that this is really about money and the -- if you allow these people to sue, two great amounts of money could potentially be lost. One is liability.

TURLEYBut the other is that the military would have to clean up its act that it would cost a lot of money for the U.S. military to get on the level of the most basic reasonable precautions that you see in a standard McDonalds. They are so negligent in how they approach many of their activities that it would cost a lot of money. And that's the sad truth here is that in the name of military discipline, which is in my view a rather fraudulent argument, we're simply just cashing in on these families by saying we're not -- we're going to keep that money. We're not going to spend it to prevent accidents. And when they occur, we're not going to give you money to make you whole.

NNAMDI800-433-8850. Do you think members of the military should be able to sue the government for negligence? Why or why not? 800-433-8850 or send us a tweet @kojoshow. Andrew Tilghman, as recently as August 2011, the federal government agreed to pay $2 million plus to settle a suit brought by a Staff Sergeant Adam Cloer who said medical staff in Kentucky was negligent in his wife's death of rectal cancer.

NNAMDIBut the U.S. attorney apparently told you that the suit should be dismissed regardless of whether Navy doctors made medical errors, because troops should not be allowed to sue for negligent care provided to their dependents.

TILGHMANYeah, I was very surprised when the U.S. attorney, you know, provided that statement to us because it seem to run counter to the cases that they've been settling as recently as last summer. I mean, there's been a long track record of DOJ settling cases with dependents. And I've looked at the military records. I mean, they settle, you know, each service settles dozens. I mean, I don't think it's typically hundreds, but it's certainly dozens of cases every year that involve medical malpractice through things that aren't Feres barred.

TILGHMANAnd in the vast majority of cases those are dependents. So, I don't know quite what the formal policy is right now. It seems like it's kind of in a potentially in a state of flux.

NNAMDIHere is Yosef (sp?) in Washington, D.C. on the phone. Yosef, you're on the air, go ahead please.

YOSEFYes, Kojo, thank you. You might take this as a bit of a sidebar. I don't know if you entertain it or not. But in the event that an individual convicted of a murder or homicide in the military spends 25 years in prison and then DNA establishes, you know, his innocence. But what would happen to the situation like that, especially would it be able, you know, to get some conversation especially if he got hurt, you know, suffered some sort of traumas while he was unlawfully in prison.

NNAMDIThat is -- that is, in fact, the sidebar, Yosef. But Jonathan Turley might be able to address it anyway.

TURLEYWell, I -- there would be some recovery, including back pay and things like that. It would not be the type of recovery that you see in the civilian world. What this all represents is just the lack of deterrence to negligence. And, you know, when you quoted, Kojo, the congressman earlier, I'm afraid that history doesn't bare out the statement that lawyers, you know, will not necessarily make medical care better.

TURLEYYou know, my study looked at the military precisely because I was interested in that question. Often, as law professors, we debate what a total liability has a behavioral impact on companies. And it occurred to me that the military was this place that time forgot. It was frozen in the 1950s. And so, we could compare the standards and practices in the military with comparable industries outside the military and see what differences emerge between one system that had a liability and one did not.

TURLEYAnd the differences were breathtaking. I mean, some of the things that occur in a military medical area are positively medieval. But even outside the medical area, we're talking about very basic forms of negligence that we just don't see anymore because of the deterrence of liability. Liability, I know, has a bad image. You know, the people -- this image of lawyers cashing in on harm. But those contingency lawyers that everyone likes to, you know, demonize, represent the most significant deterrent to negligence in this country.

TURLEYAnd they put their own money on the line. The reason it's called contingency is they take to litigate these cases. And that can be millions of dollars. Those lawyers simply cannot help medical -- help military families because there's no way they could recover, they're barred from liability. And so, if you're a contractor with the military, which is a private company, you're living in this ideal world where you know that if you hurt someone on a military base even with an act of negligence, you can't be sued

NNAMDIAnd maybe one of the unintended consequences of Feres, Andrew Tilghman, is that it makes it really hard to determine the quality of military medical care. How?

TILGHMANOh, absolutely. I mean, one of the second order effects of this is that allegations of misconduct and negligence don't make their way into the public record. I mean, if you have a normal civilian hospital and you wanted to do some research about them, you can go to the courthouse and look up cases and there would be, you know, as many, many examples of precisely what had gone wrong and how that was resolved.

TILGHMANWith the military, only the rate of medical malpractice cases in the military is such a small fraction of what it is in the civilian sector because of the Feres bar. And as a result, you know, as a reporter, in our newspaper we've tried to take a look at medical malpractice issues and it's extremely difficult because there's just very little that makes its way into the public record in any form.

NNAMDIAndrew Tilghman is a senior writer and Pentagon correspondent for the Military Times newspaper. He joins us in studio. Jonathan Turley is the J.B. and Maurice C. Shapiro professor of public interest law at George Washington University and a practicing defense attorney. He joins us by phone. Here now is Ron in Burke, VA. Ron, you're on the air, go ahead please.

RONWell, good afternoon. My only question this afternoon is I've been an active duty now for 32 years. I'm a health care administrator within the system for 20 plus years. I have a masters in health law and an MBA and I've been doing this for some time. And I have to say that I think the system as it is now is quite good. You know, the true value of an active duty member suing based upon some malpractice, you know, we don't live in a perfect world.

RONAnd I can't imagine an active duty member being able to sue because something went wrong in a battlefield or something like that. I hate to say it, but it doesn't make any sense to me. But the family members, I think, allowing them to have access to litigation process is reasonable. If I have to say one thing on behalf of the military health care system, we have some of the finest doctors in the world in the military's health system.

RONWe have some of the finest nurses in the world in the military health system, some of the finest core men in the military system. And so, I have to step back to say that our system is a accredited to the joint commission and various other accrediting agencies. And I will tell you that the military health system had since the '80s -- and I've been in since 1979 -- I will tell you that they have come such a long way that what I'm hearing on the radio just appalls me.

RONYou know, everywhere you're going to find there's something -- various accidents. There's, you know, people don't get up in the morning and say, I think I'm going to deliver bad care today. That's not what they do. And so, whether you're from the civilian health care or military physicians and nurses, people who are delivering care, these incredible people, and they come in to do the best they can. So, I happen to disagree and...

NNAMDIRon, before you go -- Ron, before you go, obviously you've been doing a commendable job for more than 32 years. But what you seem to be saying -- and Andrew Tilghman can correct me if I'm wrong -- is we have to take your word for it because the question that I had asked of Andrew Tilghman earlier is that it makes it difficult for those of us not in the military to determine the overall quality of military medical care. How would you suggest that we determine that? You obviously know it from the inside.

RONWell, I would have to say that one of the standards that the civilian community uses as well and that is simply that Joint Commission. The Joint Commission comes in and do various standards, intense standards I might add, will come into a facility and for well over a week go through systems and processes, meet with executive board, meet with the folks that are -- everybody from the housekeeping staff to the labs, to radiology, the doctors, the nurses, everybody is fair game.

RONAnd then we also have open forums where patients are allowed to go ahead and comment to these people if they like. And so, our military hospitals continue to score exceptionally high. And I'm -- when I say high, I'm talking about in the 90s plus. And then there's another methodology and that is the health care system put out a request, if you have an appointment at a medical treatment facility, you will get within days a request to provide feedback on your care. And...

NNAMDIOkay, allow me to have Andrew Tilghman comment.

TILGHMANWell, I think Ron's absolutely correct that the vast majority of military medical care is perfectly fine and competent. And they treat thousands of patients every year without any problems at all. But one of the things that Ron said which I agree and I think is interesting is he said that, you know, retaining the access for spouses and children is reasonable. And I think that he uses the word reasonable.

TILGHMANI think what's interesting here is that when we get into the legal matters, what this is suggesting is that these cases -- that there's no opportunity for people to judge whether this case is reasonable or that case is reasonable. I mean, what Feres does is it potentially bars these cases from being heard at all. And...

NNAMDIJonathan Turley?

TURLEYYeah. I have to disagree with that. Some aspects of what was illustrated by the caller. First of all, in terms of the improvements since 1980s, that certainly may be the case in his hospital. And I would certainly agree that there are a great number very committed and excellent staff working in the military medical field. And they really are, you know, deserving to be commended. But the record does not support the idea of the improvements since 1980.

TURLEYThere have been repeated investigations by Congress. A previous -- Pulitzer Prize was won by reporters that documented widespread gross malpractice in the medical -- military field, including doctors who had been stripped of their licenses in the civilian area and then found gainful employment in the military. Just in 2007, just recently, we had the Walter Reed scandal, which showed hospital rooms with molds, rats, cockroaches, rotting walls.

TURLEYYou know, we -- that is just in 2007. You know, we have cases that occur recently. In 2004, the death of Patrick Witt. You know, the nurse in that case put a tube down the wrong part of his throat in a routine appendectomy and killed him. Those are the types of things we see. Now, I think that one can certainly commend efforts to improve the military medical field, but I think we deluding ourselves if we suggest that it is on par with the civilian field.

TURLEYAs someone who has researched this as an academic, I can tell you that the military benefits greatly by having no record of malpractice. If I want to find out what the record of malpractice in the hospital is, I can hop of Lexus-Nexus, a computer system, pop out all of the suits against that hospital. You simply can't do that in the military, and that's a great benefit to them.

NNAMDIAllow me to go to Louis is Rockville, Md. Louis, you're on the air. Go ahead, please.

LOUISHi. I would offer you my perspective, which is that of someone who is a physician and is an attorney, someone who served on active duty for a while in the military medical establishment, not long enough to be a loyalist, but someone to have some perspective, and as an attorney, someone who's done medical malpractice work as a plaintiff's attorney.

LOUISI think there's some things that were said that were wrong, and some things that I would question. The wrong part was someone said something about the Colonel being cautious because he might be sued by a service member. No federal employee is sued in their own capacity. The Federal Tort Claims Act substitutes the government as a defendant. So, that's just a mistake in notion. He might not want to get dinged, but it won't be out of his personal pocket. So that's the way the Federal Tort Claims Act operates.

LOUISI listened to Professor Turley say over and over again how things happen in the military that wouldn't happen if they were subject to liability for their medical malpractice. I wonder what his evidence is? I mean, he seems to (unintelligible) ...

NNAMDIWell, allow me to have him attempt to offer it. Jonathan Turley?

TURLEYYes. Now, I think it's a fine point. There's no question malpractice occurs in the civilian hospitals, and the point is not that because liability exists in the civilian world, malpractice has ended. What I found, you know, in my study was the occurrence of malpractice that seemed a different kind of number of what we could discover, that there is certain types of malpractice that I think would have been unlikely to occur in the -- in many of these hospitals.

TURLEYThe military is routinely accused for example of sending service members back to their barracks or to their homes without adequate review of their medical conditions when they go into ER rooms. Hospitals tend to engage in what's called defensive medicine a bit more. They tend to -- what some people consider to be over evaluation. I don't certainly view that as over evaluation, but that type of thing does not occur to the same extent in the military.

TURLEYSo yes, there is malpractice. It occurs in the civilian world. But the anecdotal evidence that we have, and it's anecdotal because the military doesn't create records, are pretty stark in comparison to the practices in the civilian world.

NNAMDILouis?

LOUISWell, I think that's -- you keep giving anecdotal evidence. If you have published some study that can be scrutinized, I'd be very interested and I'd go look at it. You say that there are no records to compare, but of course they're not giving different medical care to active duty people and their dependents, so you have the records of Federal Tort Claims Acts that are brought against military medical establishments, and I don't know why that shouldn't be as reliable as anything to characterize their experience.

NNAMDIJonathan Turley.

TURLEYYeah. No. There's -- that's simply not the case. The records that you're referring to are not very helpful. Yes. There are records in terms of military personnel going in and going in for repeated visits, for example, because of misdiagnosis or failure to diagnosis. We're not entitled to those records. Those records are not reviewable. What's useful in the civilian system is that you have a record of obviously malpractice cases that make it into the system.

TURLEYBut in terms of saying, well, how dare you make these assumptions on anecdotal evidence, it's anecdotal because of the Feres Doctrine. I mean, there either is -- we don't have the same degree of information, and I don't think that's an accident. I think that it's a huge advantage to the military and finally, in terms of the number of cases, the vast majority of these cases of malpractice are never heard by anyone, because what happens is that somebody is injured, they suspect there's malpractice, but they're told about Feres, and it goes no further. They don't go to an attorney, and even though they go to an attorney, they're turned away.

NNAMDILouis, I'm afraid we're gonna have to end this short debate right there, but thank you very much for your call. I do have to move onto to Dan in Frederick, Md. Dan, tell us your personal experience.

DANI'm not an academic, but I have personal experience with this. In 2009 I was injured in Afghanistan and I had served 13 years in the Army Special Forces. I went to Walter Reed and they gave me an epidural, and the epidural paralyzed me. I spent eight days in Walter Reed, and three days in a local hospital. When the neurologist and the pain medicine people came in, they quickly diagnosed me with PTSD and said that this was all in my head, even though my bladder was holding five times the amount that you could physically hold in it.

DANAnd after that I wasn't able to get any help whatsoever. The other doctors that were there, the physical therapists and stuff were like, no, you can't fake this, but yet the doctors who caused the injury weren't held accountable, and in many aspects they prevented care for a year and a half. It took me two years of fighting -- or a year and a half of fighting to basically get to John Hopkins and start getting some help. And I called lawyers in my attempts to fight back and stuff, and nobody would help me, and I know I'm not the only soldier that went through this.

DANI can tell you stories upon stories of four or five people that I know that are in the same situation.

NNAMDIDan, as...

DANAnd the majority of -- yeah, go ahead.

NNAMDII was -- go ahead, please, Dan. Please finish your statement.

DANI was like the majority of these soldiers just have to wait and deal with the hand that their dealt until they either get out the army or they can leave the army on a medical retirement.

NNAMDIDan, as we get a response from our panelists, I'm going to put you on hold, and if you care to, have you pass on your full name and a way to contact you with our call screener, so hold on for a second and let me hear if Andres Tilghman would like to say anything about that. I guess this is the kind of story you've been hearing as you've been covering this.

TILGHMANYeah. These are -- Dan tells a story that really offers a window into how heart wrenching these individual circumstances are. I mean, Dan served 13 years in Special Forces, and comes back and gets what he's describing as, you know, shoddy to negligent medical care, and I think that one of the things that makes this an interesting issue is the fact that the idea of supporting the troops and being supportive of soldiers like Dan is something that virtually everyone agrees on.

TILGHMANI mean, you have people in Washington that stumble over themselves to talk about how much they want to support the troops and yet this issue of medical malpractice and Feres Doctrine brings that completely non-controversial issue headlong into issues of tort reform which has become a very controversial bidder partisan battle, and I think that juxtaposition between the two is really remarkable.

NNAMDIJonathan Turley, before we go to break, care to put this in the broader context of tort reform?

TURLEYWell, I think that's part of the problem is that, you know, people that argue that these service members should be able to sue, are accused of trying to enrich personal injury lawyers. I don't do torts lawsuits, and it's very unfair to characterize it in terms of this tort reform movement. What you see in the military in my view is the result of a lack of deterrents, and the lack of having an independent ability to sue, to be able to go to -- simply to do what all civilians can do, to go to an attorney and say, you know, have I been injured here, and if I have been injured, can I seek recovery. Military personnel can't do that, and I think it does show in how the military treats them.

NNAMDIDan, thank you very much for your call. Jonathan Turley, thank you so much for joining is.

TURLEYThank you.

NNAMDIGot to take a short break. When we come back, we'll be continuing this conversation with Andrew Tilghman. It's a conversation about the Feres Doctrine. If you've called, stay on the line. We'll try to get to your call. The lines are still open at 800-433-8850, or you can send us a tweet @kojoshow. I'm Kojo Nnamdi.

NNAMDIWelcome back. We're talking with Andrew Tilghman. He's a senior writer and Pentagon correspondent for the military times newspapers. We're talking about the Feres Doctrine, and Andrew, I have a two-part question for you. Insurance coverage restricts the choices civilians make when it comes to their health care to an extent, but most of us have a fair amount of free choice when it comes to medical care. How much free will do military members and their families have when it comes to their coverage?

NNAMDIAnd we got an email from Mike in Alexandria who says, "Does Feres apply to military returnees who use TRICARE for their healthcare?"

TILGHMANNo. It only applies for the most part to military treatment facilities, and service members themselves don't have much choice at all. Basically they're told what their healthcare policy is going to be. It's called TRICARE Prime, and they for the most part have to go to military hospitals when that's an option.

NNAMDII talked with a former young navy wife who was warned off military care and signed up for TRICARE Prime and she said the referral she got for civilian doctors through TRICARE Prime were often less than impressive.

TILGHMANWell, that's a concern. I think there's -- that's sort of a slightly separate story of the reimbursement rates. There's a lot of doctors that don't take TRICARE and some of them that sort of technically say they do, you know, in practice they don't. Spouses and children can opt for an alternative TRICARE program that gives them a few more options to go out in the civilian market, but then they have to deal with deductibles and paperwork, and there's some downsides to that too.

TILGHMANSo while the options are available, they're difficult, and I think as the listener who emailed you was asking about retirees, for the most part, this doesn't affect retirees. Retirees typically have -- their military health care amounts to nothing more than just an insurance in which civilian doctors get reimbursed for their care.

NNAMDIAnd now for the legendary $64,000 question, turn to Scott in Arlington, Va. Scott, your turn.

SCOTTYes, sir. My question is while I'm active duty, my wife's a medical professional and I've seen the standards I think the previous caller had commented on the quality and the inspection process for medical. But one of the things I have a question about is great, okay, so you get rid of Feres, the lawsuits start, you look for class action places, you go after those. So what do I lose as a military member when you take away or you cut back on expenses to pay the lawsuits? How do I lose the recreation that you talked about about the person getting an injured an MWR during water skiing?

SCOTTThat means that individual now takes away the MWR facilities because we can't afford them anymore, so we have to get rid of that. So now where are those costs coming from? How are you going to pay for this ability to allow everyone to sue? That Special Forces individual who just called, I'm sure he's getting a medical pension full covered for the rest of his life. He doesn't have to pay an attorney for that, that just came to him. He was given lifetime medical and he's given lifetime payments for his injuries that he sustained.

SCOTTSo that individual is taken care of the same as what would happen to someone that if they received money, except now he's not paying it to an attorney, a portion of it to an attorney, he's covered by the system itself. So I'm just curious how you respond to that aspect of it. Thank you.

TILGHMANWell, I think that the caller raises an interesting point. I mean, and it kind of gets straight to the heart of these debates about tort reform. I mean, it's really a question of how you view lawsuits, and whether you think that lawsuits provide an essential from of accountability for individuals taking on large powerful institutions, or whether you think that ambulance chasing lawyers and all of their frivolous lawsuits are the root of all our problems.

TILGHMANI mean, I think that what Feres does, for better or for worse is it makes that set of trade offs and those rules vastly different in the military world than they are in the civilian world.

NNAMDIAnd I think Bruce in Rockville, Md. wanted to make a similar point. Scott, thank you for your call. Bruce, your turn.

BRUCEWell, yes. I actually did have something very similar about the fact that the V.A. provides benefits, both health benefits and survivor benefits, but one thing that's bothered me more as I've listened to the program has been the mischaracterization of exactly how the government is liable. I used to be a defense attorney for the government -- for the army years ago. All the assault cases that Professor Turley talked about aren't Feres barred, they're barred by the actual language of Federal Tort Claims Act which bars suits based on assault, false imprisonment and those things.

BRUCESecondly, contractors, not government employees, government employees the Federal Tort Claims Act covers. Contractors are not covered by the FTCA. They can be sued just like any other person.

NNAMDIEven if something occurs...

BRUCEI'm very bothered by that.

NNAMDIEven if something occurs on a military base?

BRUCEEven if it occurs on a military base, absolutely.

NNAMDIOkay.

BRUCEIf you talk to attorneys who do Federal Tort Claims Act, when they're -- not talking about Feres, which they all universally abhor, one of their biggest concerns is getting a contract doctor versus a federal employee doctor, either military or civilian employee, because if they get either of those, they have the deepest pocket in the world, whereas if they get a contractor, it's much more difficult to sue them. They don't have the government, at least in the army's case, actually trying to settle cases that should be settled. I can't speak for the other services, but that much I do know. So it's just very different from some of what I heard today.

NNAMDIOkay. Thank you very much for your call. And finally, we go to Abu in Bloomsburg, Pa. Abu, you're on the air. Go ahead, please.

ABUHi, Kojo. Back to what Mr. Turley was taking about. I don't know specifically, but I know for sure -- I don't know specifically of the other branches or the health care school for the other disciplines. I'm currently in nurse anesthesia school and I'm also a registered nurse and I'm a lieutenant in the reserves. I know in terms of military education, the nurse anesthesia program in the military is ranked number one in the whole nation.

ABUNot only military schools, but all the schools, all nurse anesthesia education programs and so the army actually produces some of the best ...

NNAMDIWell, you get the last word on this issue, Abu, so thank you very much for your call. Andrew Tilghman, thank you for joining us.

TILGHMANThanks, Kojo.

NNAMDIAndrew Tilghman is a senior writer and Pentagon correspondent for the Military Times newspapers. Thank you all for listening. I'm Kojo Nnamdi.