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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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