                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JUL 23 1998
                                      TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                      Clerk

 DENNIS BACKMAN and JEANETTE
 BACKMAN, co-personal representatives
 of the estate of Tama Jean Backman,

          Plaintiffs-Appellants,
 v.                                                          No. 97-2271
 UNITED STATES OF AMERICA,                              (D.C. No. 96-CV-628)
                                                              (D. N.M.)
          Defendant-Appellee.




                                   ORDER AND JUDGMENT*


Before BALDOCK, MAGILL**, and HENRY, Circuit Judges.


      Plaintiffs, the parents of Tama Jean Backman and personal representatives of her

estate, appeal the district court’s grant of summary judgment in favor of Defendant

United States of America. Plaintiffs filed a medical malpractice claim pursuant to the

Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging that medical personnel at the


      *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
               Honorable Frank J. Magill, Senior Circuit Judge, Eighth Circuit Court of
Appeals, sitting by designation.
Shiprock Indian Hospital in Shiprock, New Mexico, negligently treated their daughter.

Defendants filed a motion to dismiss or, in the alternative, for summary judgment,

arguing that under the doctrine established in Feres v. United States, 340 U.S. 135 (1950),

the district court lacked subject matter jurisdiction over the Plaintiffs’ Federal Tort

Claims Act (“FTCA”) claim. The district court agreed and granted Defendant summary

judgment. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

                                              I.

       On October 5, 1994, Backman, a lieutenant in the Public Health Service, went to

the emergency room at the Shiprock Indian Hospital in Shiprock, New Mexico.

Lt. Backman suffered from Turner’s Syndrome, a congenital condition associated with a

narrowing of the aorta. She informed medical personnel in the emergency room of her

condition. The treating physician concluded, however, that her chest pain was caused by

a virus and sent her home with pain medication. During the next five days she was

treated at the emergency room several times, complaining of increasingly severe chest and

back pain. She died on October 10, 1994, of a ruptured aortic aneurysm. Plaintiffs

allege that the hospital medical staff caused her death by failing to perform proper

diagnostic tests and improperly treating her symptoms.

       At the time of her death, Lt. Backman was a nurse at the Shiprock Indian Hospital,

an Indian Health Service (“IHS”) facility. The IHS falls under the ambit of the Public

Health Service (“PHS”) and Lt. Backman served on active duty in the PHS. The PHS, an


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agency of the Department of Health and Human Services is, along with the armed

services, a uniformed service of the United States. 42 U.S.C. § 201(p). Commissioned

officers of the PHS are entitled to many of the same statutory rights, benefits and

privileges provided to commissioned officers of the U.S. Army, see 42 U.S.C.

§ 213a(a), and are subject to discipline for failing to follow orders. Commissioned Corps

Personnel Manual, Chapter CC46, Subchapter CC46.4. As an active duty member of a

uniformed service, Lt. Backman was entitled to free medical care at any facility of any

uniformed service, including Shiprock Hospital, a PHS facility. See 10 U.S.C.

§§ 1072(1) & 1074.

                                              II.

       We review the district court’s grant of summary judgment de novo. United States

v. Jenks, 129 F.3d 1348, 1352 (10th Cir. 1997). In doing so, we view the evidence in a

light most favorable to the non-moving party and will uphold the decision only if no

genuine issue of material fact exists and the moving party is entitled to judgment as a

matter of law. Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997).

       The Feres doctrine bars FTCA suits brought by service members against the

United States for injuries “arising out of or in the course of activity incident to service.”

Feres, 340 U.S. at 146. Thus, we must determine whether Lt. Backman’s treatment at

Shiprock Hospital was incident to her active duty in the PHS. If so, then Plaintiffs’

claims are barred by the Feres doctrine.


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       We have consistently applied the Feres doctrine to bar medical malpractice claims

involving commissioned members of the uniformed services. Quintana v. United States,

997 F.2d 711, 712 (10th Cir. 1993) (reserve status national guard member barred from

bringing FTCA medical malpractice claim); Madsen v. United States ex rel. United

States Army Corps of Engineers, 841 F.2d 1011, 1013 (10th Cir. 1987) (service member

on terminal leave barred from bringing medical malpractice claim). We see no reason

why this doctrine should not apply to Plaintiffs’ claim. Lt. Backman was a

commissioned officer in the PHS at the time she received treatment at the Shiprock

Hospital. The Shiprock Hospital treats “beneficiaries,” i.e., Native Americans and PHS

commissioned officers, free of charge. Thus, as an active duty officer of the PHS,

Backman was entitled to receive free medical treatment at Shiprock Hospital. The record

shows that the hospital classified Backman as a “commissioned officer” and listed her

insurance as “Beneficiary Medical Program.” Medical treatment at a military or PHS

hospital, whether elective or required, is “incident to service” when performed upon a

service member on active duty. See Harten v. Coons, 502 F.2d 1363, 1365 (10th Cir.

1974). Consequently, we conclude that the treatment of Lt. Backman at the Shiprock

Hospital arose out of her service in the PHS; therefore, the Feres doctrine bars her claim.

See Scheppan v. United States, 810 F.2d 461, 463 (4th Cir. 1987) (status as

commissioned officer in PHS barred medical malpractice suit for elective surgery

performed at IHS hospital).


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       Against this backdrop, Plaintiffs argue that a paramount policy consideration

underlying the Feres doctrine is irrelevant to this case, weakening its application. The

Supreme Court has recognized three policy justifications for the Feres doctrine: (1) the

“distinctively federal” character of the relationship between the government and members

of the military; (2) the availability of alternative disability and death benefits; and (3) the

prevention of judicial interference in military affairs. United States v. Johnson, 481 U.S.

681, 689-90 (1987). Plaintiffs argue that the last principle does not apply in this case

because the hospital staff’s conduct was based on independent medical opinions and did

not impact military decisionmaking or discipline.1 We rejected a similar argument in

Madsen, where we held that once the record establishes that a service member was on

active duty at the time of the military medical treatment, the “treatment is necessarily

incident to service and judicial inquiry ends.” Madsen, 841 F.2d at 1014. Further

inquiry would itself result in judicial intrusion into military decisionmaking and would

defeat an important purpose of the Feres doctrine. Id. Because we have already

determined that Lt. Backman was on active duty in the PHS at the time of her treatment

at a PHS facility, our inquiry ceases.


       1
         Plaintiffs do not argue that the other two policy considerations are inapplicable to
this case. Instead, Plaintiffs argue that they are flawed and undermine the continued
viability of the Feres doctrine itself. Although some courts have questioned the
reasonableness of this doctrine, Supreme Court and Tenth Circuit precedent compel its
application to this case. We need not address the strength or weakness of the doctrines’
underlying policy considerations in order to reach our result, and therefore decline to do
so.

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       Plaintiffs also argue that we should not apply the Feres doctrine in this case

because 90 percent of the employees at the Shiprock Hospital are civilians and Lt.

Backman may have been treated by civilian medical personnel. Plaintiffs’ argument is

unpersuasive. The Supreme Court has never conditioned the application of Feres upon

the military status of the alleged tortfeasor. See Johnson, 481 U.S. at 686-87.

       We conclude that Plaintiffs’ FTCA claim is barred because Lt. Backman’s

treatment at Shiprock Hospital occurred while she was on active duty and was, therefore,

incident to service under the Feres doctrine. Accordingly, the judgment of the district

court is AFFIRMED.

                                                  Entered for the Court,



                                                  Bobby R. Baldock
                                                  Circuit Judge




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No. 97-2271, Backman v. United States

Henry, J., concurring

       Given the continuing vitality of Feres v. United States, 340 U.S. 135 (1950), I am

in complete agreement with the majority’s well-reasoned opinion. However, I write

separately in order to note that the somewhat dubious foundation of Feres seems to be

weakening.

       In his vigorous dissent in United States v. Johnson, 481 U.S. 681 (1987), Justice

Scalia emphasized that “the Feres rule is now sustained only by three disembodied

estimations of what Congress must (despite what it enacted) have intended[,] [and] [t]hey

are bad estimations at that.” Id. at 695 (emphasis in original). In fact, the Court has

characterized two of those three rationales–the distinctively federal relationship between

the government and military personnel and the availability of statutory veterans’

benefits–as “no longer controlling.” See United States v. Shearer, 473 U.S. 52, 58 n.4

(1985). Moreover, the Court did not even conceive of the third rationale–avoiding

judicial interference in military discipline–until well after it decided Feres. See id. at 57.

And it is, at best, doubtful that this last rationale even applies in the present case: The

Backmans’ complaint raises no claims that implicate military decision-making, and,

furthermore, 90% of the employees at Shiprock Indian Hospital are civilians.

Nonetheless, until Congress or the Supreme Court decides otherwise, Feres remains the

law of the land. See Johnson, 481 U.S. at 692.

       The personnel at Shiprock Indian Hospital may well have caused Tama Jean
Backman’s death by failing to order simple diagnostic testing. However, Feres ties our

hands. Thus, although Lieutenant Backman chose to dedicate herself to the service of

this country and may have lost her life because of that choice, a small death benefit is all

that her heirs may recover for their loss.

       In closing, I will simply remind the Public Health Service of the words of our

sister circuit in a very similar case:

       We take the liberty of urging . . . that the defendant, if it believes that some
       negligence may actually have occurred here, consider what steps can be
       appropriately taken to help the plaintiff[s]. This is the kind of suggestion we rarely
       make, and it of course is not binding on anyone, but we hope it will be heeded.

Bowers v. United States, 904 F.2d 450, 452 (8th Cir. 1990).




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