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1977 Army Law. 1 (1977)

handle is hein.journals/armylaw1977 and id is 1 raw text is: DA PAMPHLET 27-50-49 HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C. The Gonzales Bill Captain Stephen H. Rovak, Litigation Division, OTJAG On 8 October 1976 President Ford signed Public Law 94-464, commonly known as the Gonzales Bill. The bill is of great importance for all of those persons, military or civilian, whose jobs involve providing medical care for the Armed Forces.' The first section of the bill makes the Fed- eral Tort Claims Act 2 the exclusive remedy for those seeking damages for allegedly im- proper medical treatment by Armed Forces medical personnel. This legislation immunizes ' any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of the armed forces from pjersonal liability for dam- ages caused by a negligent or wrongful act or omission, while acting within the scope of his employment.3 The act specifically waives sec- tion 2680 (h) of the Federal Tort Claims Act, so that the Gonzales Bill covers actions which allege false imprisonment, assault and battery, etc., as well as negligence (as in the case of an allegation of assault and battery by the physi- cian's failure to obtain an informed consent prior to surgery).' In cases where a person protected by the bill is sued individually, the Attorney General is authorized to defend the suit, and if the suit is brought in a state court, the suit is subject to removal to the appropri- ate Federal District Court. Once in federal court, the suit is to be deemed a tort action against the United States. For situations in which the remedy of the Federal Tort Claims Act is likely to be precluded (such as in the case of negligence in a military hospital out- side CONUS), the bill authorizes the govern- ment to purchase liability insurance for its personnel or to hold them harmless.5 The second section of the bill e authorizes payment of malpractice claims and judg- ments against National Guard medical person- nel by the Federal Government, and sets out procedures for the implementation of this authority. The aim of this section is to encour- age the participation of medical personnel in the various National Guard organizations; since National Guardsmen and National Guard employees are generally not considered fed- eral employees for Federal Tort Claims Act purposes, torts committed by them when not in federal service are not cognizable under the Federal Tort Claims Act. Further, they are often subject to personal liability for tortious conduct and the Gonzales Bill serves to in- demnify them should they be sued individually for acts taken within the scope of their medi- cal duties. Th3 Department of Defense and the various services are currently drafting regulations which will implement the Gonzales bill. For the present, Staff Judge Advocates should take steps to insure that all medical personnel within their commands are advised to notify immediately their Staff Judge Advocate should they be named in any lawsuit involving the performance of their medical duties. Staff Judg3 Advocates should, in turn, immediately notify the Litigation Division, (HQDA, DAJA-LTT, WASH DC 20310, AUTOVON 225-1734) if they are aware of any suits involving medical personnel within their com- mands. More specific instructions will be an- JP

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