U.S.

ARMY MEDICAL DEPARTMENT CENTER AND SCHOOL

FORT SAM HOUSTON, TEXAS 78234-6100

TORT LAW, THE FEDERAL TORT

CLAIMS ACT, AND THE GENEVA
CONVENTION

SUBCOURSE MD0033 EDITION 100

 DEVELOPMENT

This subcourse is approved for resident and correspondence course instruction. It

reflects the current thought of the Academy of Health Sciences and conforms to printed
Department of the Army doctrine as closely as currently possible. Development and
progress render such doctrine continuously subject to change.

ADMINISTRATION

For comments or questions regarding enrollment, student records, or shipments,

contact the Nonresident Instruction Branch at DSN 471-5877, commercial (210) 221-
5877, toll-free 1-800-344-2380; fax: 210-221-4012 or DSN 471-4012, e-mail
accp@amedd.army.mil, or write to:

COMMANDER
AMEDDC&S
ATTN MCCS HSN
2105 11TH STREET SUITE 4192
FORT SAM HOUSTON TX 78234-5064

Approved students whose enrollments remain in good standing may apply to the
Nonresident Instruction Branch for subsequent courses by telephone, letter, or e-mail.

Be sure your social security number is on all correspondence sent to the Academy of
Health Sciences.

CLARIFICATION OF TRAINING LITERATURE TERMINOLOGY

When used in this publication, words such as "he," "him," "his," and "men" are intended
to include both the masculine and feminine genders, unless specifically stated otherwise
or when obvious in context.
.
 TABLE OF CONTENTS

Lesson Paragraphs

INTRODUCTION

1 TORT LAW AND THE FEDERAL TORT CLAIMS ACT…….. 1-1 –1-11
Exercises

2 THE GENEVA CONVENTION……………………………..…… 2-1 –2-6

Exercises

MD0033 i
 CORRESPONDENCE COURSE OF THE
U.S. ARMY MEDICAL DEPARTMENT CENTER AND SCHOOL

SUBCOURSE MDO033

TORT LAW, THE FEDERAL

TORT CLAIMS ACT, AND THE
GENEVA CONVENTION

INTRODUCTION

This subcourse defines a tort and describes how the breach of a duty can create a
lawsuit. A tort requires a duty, breach, causation, and injury. Medical personnel need
to know the provisions of the Federal Tort Claims Act and methods for improving patient
care and avoiding civil liability.

Included in this subcourse are provisions of the Law of War and the Geneva
Convention regarding medical personnel. Officers and enlisted soldiers are aware of
cases of unnecessary violence and atrocities committed during wartime. These highly
controversial episodes have been discussed for years, and even decades; almost thirty
years later, for example, we still remember the infamous My Lai massacre.

This subcourse is designed to provide you with a general knowledge of military law
as it applies to medical issues.

SUBCOURSE COMPONENTS:

This subcourse consists of two lessons. The lessons are:

Lesson 1, Tort Law and the Federal Tort Claims Act.

Lesson 2, The Geneva Convention.

Credit Awarded:

To receive credit hours, you must be officially enrolled and complete an

examination furnished by the Nonresident Instruction Branch at Fort Sam Houston,
Texas. Upon successful completion of the examination for this subcourse, you will be
awarded 4 credit hours.

You can enroll by going to the web site http://atrrs.army.mil and enrolling under
"Self Development" (School Code 555).

A listing of correspondence courses and subcourses available through the

Nonresident Instruction Section is found in Chapter 4 of DA Pamphlet 350-59, Army
Correspondence Course Program Catalog. The DA PAM is available at the following
website: http://www.usapa.army.mil/pdffiles/p350-59.pdf.

MD0033 ii
 LESSON ASSIGNMENT

LESSON 1 Tort Law and the Federal Tort Claims Act.

LESSON ASSIGNMENT Paragraphs 1-1 through 1-11.

LESSON OBJECTIVES After completing this lesson, you should be able to:

1-1. Define the terms that describe tort law and the
Federal Tort Claims Act.

1-2. Identify the characteristics of a tort versus a

crime.

1-3. Identify the types of torts.

1-4. Identify methods to recover damages in tort

cases.

1-5. Identify the Federal Tort Claims Act of 1943.

1-6. Identify the avenues of recovery apart from the

FTCA.

1-7. Identify individual personal liability of military

health care providers.

1-8. Identify the sanctions for negligence.

SUGGESTION After completing the assignment, complete the

exercises of this lesson. These exercises will help you
to achieve the lesson objectives.

MD0033 1-1
 LESSON 1

TORT LAW AND THE FEDERAL TORT CLAIMS ACT

1-1. INTRODUCTION

a. The newspapers today are filled with examples of interesting tort law cases. It
is through tort law that our society attempts to resolve conflicts between those whose
actions injure others and those who have suffered the injuries. Consider the following
recent examples. In one case, the headline reads, “Family files suit over blunder in lung
operation.” That case involved a patient who was to have a cancerous right lung
removed. The right lung was removed, but the problem was that the cancer was in the
left lung. Thus, the doctors removed the wrong lung, taking out the healthy organ and
leaving the patient with the cancerous lung. After the surgery, the doctors told the
patient that the lung they removed was found to be cancer-free after all; what they did
not tell him was that the cancer had been in the other lung all along.

b. In another example, the headline read, "Man jokes after foot amputated by
mistake." That same hospital made the news again when, several days later, the
following article appeared: "Second error at Florida hospital causes 77-year-old man's
death." This time, a respiratory technician disconnected the wrong patient from a
ventilator.

c. Another example: $95,000 went to the parents of a child following the birth of
a healthy infant. It is not that the tubal ligation failed (the patient had requested that it
be performed in conjunction with her delivery of her previous child). What the doctors
forgot to tell the patient was that they hadn't performed the procedure at all (In Re
Medical Review Panel on Behalf of Laurent, 657 So.2d 713 La. App. 1995).

d. Here is one that appeared in a local newspaper a few years ago. A patient
"entered the Balboa Naval Hospital in Long Beach, Calif., for an appendectomy. For
months after the surgery, she continued to feel the same symptoms of appendicitis.
Eventually she went to the emergency room of a civilian hospital. Doctors there told her
that she still had her appendix, but that she was missing an ovary and her fallopian
tubes."

e. In an unusual twist, after an automobile accident, the patient, a Jehovah's

Witness, refused blood transfusions at the hospital. As a result of her refusal, the
patient suffered permanent disability. The issue for the appellate court was whether the
defendant (who was admittedly responsible for the accident) should be held responsible
for the injuries the patient sustained as a result of refusing medical treatment. If not,
would this be an intervening cause that breaks the chain of causation? The court held
that the patient had no duty to undergo treatment contrary to her religious beliefs,
thereby making the defendant responsible for all of the patient's injuries Williams v.
Bright, 1995 WL 619381 N.Y. Sup.).

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 f. As medicine and technology combine to produce ever-increasing miracles, it
is a world that is ever growing, ever changing, yet always fascinating. It is a world that
you, as health care providers, need to have some basic familiarity with. Your primary
focus, of course, is on patient care, not lawsuits. Nonetheless, the fact is that a failure
to meet the standards of patient care may produce serious legal problems. The risk
management process, of course, focuses not simply on yesterday's accident, but on
prevention of tomorrows. Its concern for foresee ability of risk and taking precautions to
safeguard against that risk is really very similar (as we shall see) to the concerns
underlying the avoidance of tort liability.

1-2. DEFINITIONS

a. Tort. This is the breach of a duty, other than a contractual duty, which gives
rise to an action for damages. To create a lawsuit, though, we need more than the duty
and its breach. We also need causation and injury. Without these last two elements,
we may have negligence but nobody was hurt; that is, we were lucky (as was the
patient). So, in terms of torts, think about the four elements of: Duty, Breach,
Causation, and Injury. Although not actually an “element," something else we need is a
plaintiff; that is, somebody who wants to sue us. Try to avoid getting patients upset or
mad enough to want to sue, or that in and of itself can produce a lawsuit. We do not, of
course, guarantee results, and some patients may suffer adverse complications no
matter what we do (as such is simply the state of our technology.) Still, some patients
may perceive a bad result to be the result of negligence. If we act toward patients in a
cold and callous manner, they are more likely to want to sue, whether or not there is a
valid basis for doing so. An example is a case where a doctor kept sending bills to a
deceased patient. The husband informed the doctor several times to send the bills TO
HIM and not to his deceased wife. When the bills kept coming to his wife, the husband
sued the doctor. This is a good example of how you can create a lawsuit {McCormick v.
Haley, 37 Ohio App. 2d 73, 307 N.E. 2d 34 (1973), based on the negligent infliction of
emotional distress.

b. Crime. This is a wrong committed against society itself (with society as the
victim), as opposed to a tort (that is considered to be a wrong against an individual.) A
crime may violate one's duty TO DO something, or a duty NOT TO DO something.

1-3. CHARACTERISTICS OF TORTS VERSUS CRIMES

a. Difference Between a Crime and a Tort. A tort is a private or civil

wrong/injury. The victim is the individual who was hurt. A crime, on the other hand, is a
public or penal wrong/injury. In the case of a crime, the victim is society and not simply
the individual who was injured. Tort cases are pursued by the private individual/entity
who was injured (to protect private interests), whereas criminal prosecutions are
brought by the district attorney in the name of the State. In other words, in the case of a
tort, the state doesn't prosecute, the victim does. Thus, whether or not the wrongdoer is
taken to court depends on the victim's desire to sue. In the case of a crime, the victim
cannot prevent the state from bringing criminal charges (since crimes are prosecuted by
the government to protect its own interests).

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 b. Desired Results. In a tort case, the basic purpose is to compensate the one
who suffered the loss as the result of another's conduct. The law seeks to place the
cost on those who, reflecting our concepts of justice, ought to bear it. It also seeks to
prevent future losses and harms by regulating behavior. By making people accountable
for their actions, the law exerts a deterrent effect. In a criminal case, the law goes
further, and seeks to punish the offender, reform the offender, protect society from any
further criminal acts by the offender, and deter the offender (and any others similarly
inclined) from engaging in such acts in the future. In a criminal case, the wrongdoer
faces more than having to pay damages to the one he injured. The offender may also
face a criminal fine and imprisonment.

c. Different Standards of Proof. In a tort case, the one who brings the action
must prove his case by a preponderance of the evidence. This means that the fact-
finder must be convinced that the plaintiff's version of the facts is more likely to be true
(as opposed to defendant's version). In a criminal case, the state must prove guilt
beyond a reasonable doubt, which is a much higher standard. There is a higher
standard for criminal cases because the sanction is much more severe. In a criminal
case, the offender is facing a severe stigma and a possible loss of liberty. An example
is assault and battery; this is a tort, as well as a crime. Another example is the crime of
larceny (its tort equivalent is "conversion"). In other words, some torts involve conduct
that is so serious to the interests of society that it also constitutes a crime. An individual
can be prosecuted by the state for the crime and also by the individual for the tort. This
isn't a double jeopardy issue, since we aren't talking about successive criminal
prosecutions here.

1-4. TYPES OF TORTS

a. Intentional Torts.

(1) lntent. This isn't necessarily a hostile intent or an intent to do anyone

harm. It is, rather, the intent to do an act that invades the interests of someone else.
Tort liability extends to the consequences desired and those that are reasonably
foreseeable. Think of it this way--if I force you to receive medical treatment you didn't
want, the fact that I was only trying to do what was good for you isn't the point. I may
create tort liability even though I wasn't trying to hurt you.

(2) Voluntary act by the defendant. An act one is forced to perform does not
normally result in tort liability (where is the intent to invade the interest of another?). If
you have the intent, but no act, you have intent in a vacuum. We don't make that intent
legally actionable (besides, even if we did" how would you ever prove it?). An
intentional tort comes into being when you proceed to try to carry out that intent.

(3) Torts against the person or against property. Intentional torts can be
against the person or against property.

(a) Against the person.

MD0033 1-4
 1 Assault: an act that arouses in another a reasonable fear of an
imminent unpermitted physical contact with his person. "Fear" doesn't necessarily
mean fright, but rather knowledge of the impending touch or contact.

2 Battery: an intentional and unpermitted physical contact with or

touching of the person of another. The assault is when you swung at the victim; here,
you hit him. An example of this would be performing a surgical procedure on a patient
without any consent.

3 Infliction of mental distress: extreme and outrageous conduct

that causes another to suffer a severe emotional response or great mental anguish.
As was noted, it is important to strive for good relationships with your patients; if they
are close to suing, don't push them over the edge. Again, repeatedly sending bills to a
deceased person is obviously going to get the surviving parent/spouse upset.

4 False imprisonment: the unlawful detention of the person of

another, for any length of time, whereby he is not free to move about at will.

5 Invasion of privacy: an intentional interference with another

person's interest in his privacy or his right to be "let alone. "An example might be
forcing a person to undergo a form of medical treatment to keep him alive, but which the
patient does not want. Such a situation may violate the patient's "right to die."

(b) Against property. In this class, we are focusing on negligence, as a

basis for liability under the Federal Tort Claims Act. We are not going to focus on torts
against property. Simply be aware that torts such as trespass and conversion (stealing)
exist.

b. The Tort of Negligence.

(1) Negligence defined. Negligence is the failure to use that degree of care
required under the circumstances to prevent harm to others. It can be a failure to act
(nonfeasance) or acting carelessly (malfeasance). It is conduct that creates an
unreasonable risk of harm to others. The negligent act must create this risk; the actor is
liable for the reasonably foreseeable results of that negligence. Negligence must take
into account the circumstances that confronted the actor. Think of it this way: If I am
driving down the street, doing the speed limit, and I run into your car, was I negligent? It
would appear so, but there are fact situations that might change the determination
completely. What if a child comes flying out from behind a parked car? Now, under
these facts, suppose I (the driver) have essentially two choices: (1) hit the child; or (2)
veer to avoid hitting him, which will cause me to run into your car? Now what--was I
negligent for having hit your car? The point is that we have to look at the
circumstances, since negligence does not exist in a vacuum.

(2) The standard of care. The applicable legal standard is one of

reasonableness, and is called "ordinary care" (sometimes called "due care" or
"reasonable care"). The legal determination to be made is whether the conduct in

MD0033 1-5
question constituted ordinary care: "What would the reasonable person of ordinary
prudence have done under the same or similar circumstances?" Think, then, about how
a hospital nurse, for example, might be found to have acted negligently. The issue
involves a determination of what the reasonably prudent hospital nurse would, and
should, have done under those circumstances? This may involve a failure in
assessment; that is, did the nurse obtain necessary information from the patient? If so,
did the nurse appreciate its significance? It may also involve a failure to document and
communicate? Think of examples of negligence at the supervisory level: failure to train
subordinates; failure to properly allocate time and other resources; assigning
subordinates to duties they are not equipped to perform and, to make it worse, failing to
supervise them to determine whether or not they are capable of performing them; failure
to assign and maintain priorities; failing to notice their inability to properly act in a
situation; and failure to intervene and protect the patient.

(3) The "reasonable man/person" standard. In assessing and evaluating

the propriety of one's behavior, courts measure it against the standard of the
"reasonable man." This isn't simply a reflection of how the average person behaves,
but is how the typical person ought to behave in circumstances in which there is a
potential or actual risk of harm to others. The reasonable person is not perfect or
infallible; he is allowed errors of judgment or mistakes in perception, and may be
momentarily distracted, but such errors must have been reasonable or excusable under
the circumstances; they must have been consistent with the exercise of ordinary care.
The "reasonable man" or "reasonable person" standard is a mythical ideal person. The
actor is held to the standard of what this person would have done in similar
circumstances. The characteristics of the reasonable person are:

(a) the actual physical attributes of the actor/defendant;

(b) normal intelligence and mental capacity;

(c) normal perception, memory, and experience; and

(d) Any special knowledge, skills, training, or experience required for

the activity at issue. In other words, the "reasonable person" standard, as specifically
applied to a physician, is not exactly the same as the "reasonable person" standard
applied to an air traffic controller or airline pilot. While both are professionals and while
we expect them to have some special knowledge, the particular knowledge that we
expect them to have is different between the two. Doctors needn't know how to fly
planes, and we don't expect pilots to know how to do open heart surgery.

(4) Legal elements necessary to establish liability for negligence.

(a) Duty owed by the actor to conform to a standard of care.

(b) Breach of the duty to conform to the standard.

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NOTE: While these two elements constitute "negligence" in the abstract, to be
actionable, however, you also need the next two:

(c) Actual injury to interests of another.

(d) Causal connection between the breach of duty and the injury.

NOTE: An easy way to remember this is to think of the four" D's of negligence: Duty,
Deviation, Damage, Direct causation.

(5) Proximate causation vs. intervening cause. Proximate causation simply

means that the defendant is responsible for those results that are reasonably
foreseeable. To use an example, suppose I run someone over with my car late at night
and leave him lying in the middle of the road. Is it reasonably foreseeable that another
car will come along and hit him, injuring him further? If the answer is "yes," then I am
responsible for all of the resulting injuries (since, after all, it is all my fault). If the answer
is "no," then the results are not reasonably foreseeable, and I would not be responsible
for those subsequent results.

(6) Kinds of facts. Under what sort of facts, then, might I not be responsible
for the defendant's further injuries? Suppose an ambulance comes by and picks up the
injured person, taking him to the hospital. What if, on the way to the hospital, the driver
loses control of the ambulance and runs into a phone pole or tree, causing the patient to
be thrown from the ambulance, which breaks both of his arms--was THAT, my fault?
The issue is whether or not this sequence of events was reasonably foreseeable. Take
it a step further--what if the patient is taken to the hospital and while there, falls off of the
operating table because nobody put up the side rails or watched over the patient--was
that my fault? Suppose the patient is injured when the physician commits an act of
malpractice?

(7) Important concept. The concept to grasp here is that the defendant is
legally liable for those results that were reasonably foreseeable. That doesn't mean
every outcome, no matter how remote or unlikely. Indeed, there has to be a common
sense limit here, or someone would sue someone's parents on the theory that it's their
fault (if they didn't have children, the children wouldn't have caused the car accident 16
years later).

(8) Common defenses to tort liability. Common defenses are contributory

negligence and assumption of the risk. An example of contributory negligence on the
part of a patient would be failing to follow the doctor's instructions (lose weight, don't
smoke, don't climb stairs, and so forth), or not being candid when providing history and
symptoms. An example of assumption of risk would be, despite informed consent, the
patient electing to have the surgery anyway, knowing of the hazards involved. Another
example would be refusing medical treatment, even when your doctor tells you it may
result in your death.

MD0033 1-7
1-5. RECOVERY DAMAGES IN TORT CASES

a. Compensatory Damages. The purpose here is to return the injured party to

the position he was in prior to the injury to make him "whole." Recovery may be had for
all adverse physical and mental consequences of that injury.

b. Punitive (Exemplary) Damages. This serves to punish the actor and make
an example of him in order to deter others. Such damages may be allowed in cases
involving intentional or reckless conduct.

NOTE: However, those punitive damages are not allowable under the Federal Tort
Claims Act in suits against the United States Government.

1-6. LEGAL DOCTRINES

a. Respondeat Superior. "Let the master answer. "An employer is liable for the
wrongful acts of an employee if such acts occur within the scope of employment. As we
shall soon see, under the Federal Tort Claims Act, the United States (US) Government
may be held liable for our negligent acts, where those acts occur within the scope of our
employment.

b. Sovereign Immunity. Units of government are immune from tort liability

unless they consent to being sued. Unless the Government waives this immunity, it
cannot be sued. Again, as we shall shortly see, the Federal Tort Claims Act (FTCA) is a
limited waiver of this immunity. It is "limited" because the Government has not
subjected itself to civil liability for any and everything.

c. Res Ipsa Loquitur. "The thing speaks for itself. (Negligence may be inferred
(dispensing with the need for expert testimony) when: (1) plaintiff's injury was caused
by an instrumentality or condition which was under defendant's exclusive control at the
time; (2) in the ordinary course of events, plaintiff's injury would not have occurred if
defendant had used ordinary care; and (3) plaintiff's conduct did not significantly
contribute to the event which caused the injury. Examples of this would be operating on
the wrong part of the body, and leaving foreign objects in a patient's body after surgery.
Think of it this way, if a patient goes in to have the right arm amputated and you remove
the left arm, do you think the court needs an expert witness to testify that such conduct
breached the applicable standard of care? There is no need for expert testimony in
such a case, as a court can make this determination on its own.

1-7. THE FEDERAL TORT CLAIMS ACT (1946)

a. Limited Waiver of Sovereign Immunity. Again, the waiver is limited,

because the objective wasn't to subject the government to liability for everything it did.
If that happened, the Government would be paralyzed under an avalanche of lawsuits.
Think about it; why waive immunity at all? Sovereign immunity results in injured
plaintiffs with no legal remedy; that is, they cannot bring suit against the wrongdoer. As
our society became more and more industrialized, we had more and more government

MD0033 1-8
employees operating more and more vehicles, planes, and so forth, and having more
and more accidents. Eventually, Congress intervened with the passage of this law.

b. Scope of the The Federal Tort Claims Act. The US may be held liable
(under state law) for negligent acts (of federal employees acting within the scope of
employment) in the same manner that a private person would be held liable. This
means that the government employee must have been doing his job; that is, doing the
business of his employer at the time of the accident (although he may have been doing
it negligently or poorly). In other words, if you are a government health care provider,
you are covered by this law when doing your job, even if you prescribe the wrong
medication, fill the wrong prescription, or otherwise negligently perform your duties.

c. Exceptions to The Federal Tort Claims Act Liability.

(1) Most intentional torts. As a general rule, employees who commit

intentional torts; i.e., conversion or assault and battery, are not performing the
government's business at the time anyway. Employees who commit intentional torts are
not normally acting within the scope of their employment.

(2) Claims arising in foreign countries. Although excluded by the FTCA

itself, this doesn't mean that the doctor who injures someone overseas is not protected.
Under 10 USC 1089 (as applied by our claims regulation, AR 27-20), the doctor who
acts overseas will be protected by the same immunity that protects those who act within
the US. In other words, we get to the same result, but via a slightly different road.

d. Proper Claimants Under the The Federal Tort Claims Act

(1) The public at large. As an example, Fort Sam Houston is an open post.
Particularly during events like the 4th of July celebration or Armed Forces Week, vast
numbers of civilians come onto our installations.

(2) Military family members/dependents. This would include those injured in

military medical facilities.

(3) Retirees from military service. These are persons who sustained injuries
while on active duty and are now retired from either time served on active duty or for
medical reasons.

(4) The Feres rule-non-liability to Soldiers. In Feres v. United States (1950),

the, Supreme Court held: "The Government is not liable under the Federal Tort Claims
Act for injuries to servicemen where the injuries arise out of or are in the course of
activity incident to service." "Incident to service" is a very broad term, which essentially
applies to the soldier who is on duty or on post, or performing the government's mission
at the time of the tort. It applies when the soldier:

(a) is performing official duties; or

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 (b) is on a military installation; or

(c) is in a military aircraft; or

(d) is in a military medical/dental facility.

(5) Derivative suits by dependents. If the soldier cannot sue, how about the
spouse? A spouse or dependent child can sue for injuries that THEY sustain; that is,
the spouse/child is the victim. They cannot, however, sue for derivative injuries, which
are those that they sustain as a result of the injury to the soldier. In other words, the
spouse or children cannot sue for derivative injuries, which are those they sustain as a
result of injury to the soldier. So, the wife/husband could sue for their own injury, but
could not bring a suit for wrongful death or loss of consortium as a result of the injury to
the soldier. Suppose a military helicopter veers off-course and crashes into a set of
Government quarters on Ft. Sam Houston. The soldier who lives there is injured, as are
his spouse and children. Can any of them bring suit under the FTCA? The soldier
cannot. He was injured "incident to service," so the Feres bar prohibits his suit. The
spouse and children can bring suit for their own injuries, but not for injuries sustained by
the soldier. Suppose they were all asleep at the time of the crash, and the soldier
wasn't on duty? The answer is that it doesn't matter. "Incident to service" includes
mishaps occurring on-post.

(6) Soldiers cannot sue. Why not let soldiers sue the military under the
FTCA? The reason is because courts do not want to have soldiers sue their superiors
every time they are ordered into harm's way or otherwise told to do anything. Courts do
not want to get involved with having to police everything a commander tells his soldiers
to do; such a situation would destroy military discipline and make it impossible for
commanders to effectively give orders to their subordinates. Imagine a commander
who orders his soldiers to something that they perceive as unwise and dangerous. The
military couldn't function with orders routinely questioned and subject to lawsuits and the
review of our courts.

(7) The process for seeking recovery under The The Federal Tort Claims
Act.

(a) The injured party must first file an administrative claim within 2
years of the time he knew or should have known of the injury. The time period is
normally tolled, or interrupted, during a period when the patient would not reasonably
have known, for example, of an object having been left in his body.

(b) The government has 6 months to review and either pay or denies
the claim. If the government does nothing, the plaintiff can proceed to court as though
the claim had been denied.

(c) The injured party can sue in US District Court if: (1) No settlement
within 6 months; or (2) formal denial. Note that the lawsuit must then be filed within 6

MD0033 1-10
months of date of denial. Trial is before a federal district judge (no jury trial under
FTCA). Also, remember that punitive damages cannot be awarded against the US.

(8) Employee sued as an individual.

(a) Obtain commander's scope of employment certificate.

(b) Ask U.S. Attorney for representation.

(c) Remove case to US District Court.

(d) Implead US Government under FTCA (note that under 28 USC

Section 2679, where the government employee was acting within the scope of his
employment, the EXCLUSIVE and sole defendant is the US itself, not the individual
employee.

(e) Dismiss state case against government employee.

1-8. AVENUES OF RECOVERY APART FROM THE EDERAL TORT

CLAIMS ACT

Be aware that apart from the FTCA, there are claims statutes that may allow
some compensation to injured parties. They may not be able to file a multi-million dollar
civil lawsuit, but they can at least seek compensation for their loss. There are, for
example, several claims statutes set forth in AR 27 -20. These allow payment of claims
for damage to household goods in transit and other losses occurring on-post. Another
example is the Foreign Claims Act, which permits payment of claims by inhabitants of
foreign countries for injury or damage caused by US military or civilian personnel in
overseas locations. Another possible means of relief is the filing of a private relief bill in
Congress. This is how plaintiffs used to have to seek compensation, prior to the
passage of the Federal Tort Claims Act. In cases where parties cannot bring an action
under that law, they still may resort to this remedy.

1-9. INDIVIDUAL PERSONAL LIABILITY OF MILITARY HEALTH CARE

PROVIDERS

a. Gonzalez Act, 10 USC Section 1089 (1976). Pursuant to this statute, under
the Federal Tort Claims Act, the sole remedy for negligent acts of military health care
providers acting within the scope of their duties or employment is against the US. The
bottom line: no individual liability.

b. 1988 Amendments to the THE FEDERAL TORT CLAIMS ACT. Pursuant

to 1988 amendments to the Federal Tort Claims Act (29 USC Section 2679), the
principal found in the Gonzales Act was extended to cover ALL government employees,
not just health care providers. Whether the individual is a doctor, nurse, physician's
assistant, or anything else, he is protected from personal liability (so long as he was
acting within the scope of his employment at the time of the accident/negligent acts).

MD0033 1-11
Lawyers, too, for example, face malpractice litigation. 28 USC Section 2679 protects
them as well, so long as they act within the scope of their employment. Examples of
legal malpractice might be failing to act as the reasonably prudent attorney would have
acted under the circumstances. Did we locate and interview witnesses, and otherwise
properly investigate/handle the case? "Malpractice" is negligence on the part of any
professional; that is, lawyer, doctor, nurse, or architect.

1-10. SANCTIONS FOR NEGLIGENCE

a. Criminal Sanctions Under the Uniform Code Military Justice. This exists
apart from the issue of possible tort liability. Criminal sanctions are generally reserved
for the most egregious breaches of patient care. Possible Uniform Code Military Justice
(UCMJ) provisions that might be applicable would be:

(1) Negligent homicide (Article 134. Uniform Code Military Justice. This is
an unlawful killing resulting from simple negligence (the lack of due care). An intent to
kill or injure is not required. It is an act/omission of a person who is under a duty to use
due care that exhibits a lack of that degree of care of the safety of others which a
reasonably careful person would have exercised under the same or similar
circumstances.

(2) Involuntary manslaughter (Article 119. Uniform Code Military Justice.

This is an unlawful killing that is the result of culpable negligence (a negligent act or
omission accompanied by a culpable disregard for the foreseeable consequences).
Culpable negligence is carelessness greater than simple negligence; it is a negligent
act/omission accompanied by a culpable disregard for the foreseeable consequences to
others of that act/omission. As opposed to negligent homicide, here the deviation from
the acceptable standard of care is much more severe; it is a question of degree
between the two.

(3) Dereliction of duty (Article 92, Uniform Code Military Justice). This is the
willful or negligent failure to perform one's known duties. A duty may be imposed by
treaty, statute, regulation, lawful order, standard operating procedure (SOP), or custom
of the service. Knowledge is either actual or of the nature of something that reasonably
should have been known. A person is derelict in the performance of duties when that
person willfully (intentionally) or negligently fails to perform that person's duties or when
that person performs them in a culpably inefficient manner. Negligence has the same
meaning we have previously looked at, that is, the failure to meet the applicable
standard of due care. "Culpable inefficiency" is inefficiency for which there is no
reasonable or just excuse. A person is not derelict in the performance of duties;
however, if the failure to perform those duties is caused by ineptitude rather than by
willfulness, negligence, or culpable inefficiency, and may not be charged under this
article, or otherwise punished (for example, a recruit who really tries but cannot qualify
with the M-16 or pass a physical training (PT) test is not derelict).

MD0033 1-12
 b. Administrative Sanctions.

(1) Adverse efficiency report (OER/EER).

(2) Written reprimand.

(3) Military occupational specialty (MOS) reclassification (enlisted).

(4) Administrative reduction (enlisted).

(5) Reports to accrediting or licensing agencies.

(6) Limitations on privileges.

(7) Reports to National Data Bank.

1-11. CONCLUSION

You work in an area that has a great potential for litigation. Ours is a litigious
society and, as our technology produces even greater and greater miracles, we
ironically find ourselves facing a system in which we have both the most advanced
technology in the world, as well as the most malpractice litigation. Patients who may
have died 20 years ago can now be kept alive. We have the ability to detect fetal
abnormalities and affect the development of that fetus long prior to birth. Today, some
patients claim a right to die; others claim a right not to have been born. This is an
exciting and developing area--one where the law and medicine converge.

Continue with Exercises

MD0033 1-13
EXERCISES, LESSON 1

INSTRUCTIONS: The following exercises are to be answered by marking the lettered

response that best answers the question or by completing the incomplete statement, or
by writing the answer in the space provided.

After you have completed all the exercises, turn to, “Solutions to Exercises at the end of
the lesson and check your answers.

1. A ___________ is the breach of a duty other than a contractual duty.

2. A ___________ is a person who files a lawsuit against another person.

3. A ____________ is a wrong committed against society itself, where society is the

victim.

4. The difference between a tort and a crime is that a tort is a private of criminal
wrong, whereas a crime is prosecuted by the _________________________.

5. In tort cases, the law attempts to compensate toe one who suffered the loss,
whereas in criminal cases the law seeks to _____________ the offender.

6. One who brings a tort action must prove the case by a preponderance of the
_______________.

7. In a criminal case, the state must prove guilt beyond a ______________ doubt.

8. The two types of torts are intentional, and ______________________.

9. An intentional tort can be against a person or against _________________.

10. Government units are _____________ from tort liability unless they consent to
being sued.

Check Your Answers on Next Page

MD0033 1-14
SOLUTIONS TO EXERCISES, LESSON 1

1. tort (para 1-2a)

2. plaintiff (para 2-1 a)

3. crime (para 2-1 b)

4. government (para 1-3a)

5. punish (para 1-3b)

6. evidence (para 1-3c)

7. reasonable (para 1-3c)

8. negligence (para 1-4a-b)

9. property (para 1-4a (c))

10. immune (para 1-6b)

End of Lesson 1

MD0033 1-15
 LESSON ASSIGNMENT

LESSON 2 The Geneva Convention

LESSON ASSIGNMENT Paragraphs 2-1 through 2-6.

LESSON OBJECTIVES After completing this lesson, you should be able to:

2-1. Identify the sources of the Law of War.

2-2. Identify The Treaties of the Law of War.

2-3. Identify the reason why we comply with the

Law of War

2-4. Identify the underlying principles of the Law

of War

2-5. Identify hoe the Geneva Convention relates to

medical personnel and medical equipment.

SUGGESTION After completing the assignment, complete the

exercises of this lesson. These exercises will help you
achieve the lesson objectives.

MD0033 2-1
 LESSON 2

THE GENEVA CONVENTION

2-1. INTRODUCTION

a. Consider the following, which is, unfortunately, taken from the decisions of
the military appellate courts in an actual case: "The insertion was not opposed by hostile
fire... Despite expectations of heavy resistance, C Company moved through My Lai
without receiving any fire. The unit encountered only unarmed, unresisting, frightened
old men, women, and children. The villagers were found in their homes eating
breakfast and beginning their morning chores. The villagers, including infants held in
their mothers' arms, were assembled and moved in separate groups to collection
points."

b. What happened next is history: One of the collection points for the villagers
was in the southern part of the village. There, PFC Meadlo guarded a group of between
30 to 40 old men, women, and children. Lieutenant Calley approached Meadlo and told
him, 'you know what to do, and left. He returned shortly and asked Meadlo why the
people were not yet dead. Meadlo replied he did not know that Calley had meant that
they should be killed. Calley declared that he wanted them dead. He and Meadlo then
opened fire on the group, until all but a few children fell. Calley then personally shot
these children. He expended 4 or 5 magazines from his M16 rifle in the incident.
Lieutenant Calley and Meadlo moved from this point to an irrigation ditch on the east
side of My Lai. There, they encountered another group of civilians being held by
several soldiers. Meadlo estimated that this group contained from 75 to 100 persons.
Calley stated, "We got another job to do Meadlo," and he ordered the group into the
ditch. Calley and Meadlo opened fire on them. Calley admitted that he fired into the
ditch with the muzzle of his weapon within five feet of the people in it. He expended
between 10 and 15 magazines of ammunition on this occasion...immediately
afterwards, a young child was observed running toward the village. Calley seized him by
the arm, threw him into the ditch, and fired and killed him.

c. “(He) saw twenty to thirty Vietnamese women, children, and a few old men;
saw Lieutenant Calley and SGT Mitchell shove these Vietnamese down into the ditch
and fire into them from four or five feet. The victims screamed and fell. (Private) Conti
found Lieutenant Calley and SGT Mitchell firing from six or seven feet into a ditch filled
with people who were screaming and trying to crawl up... They were just scattered
all over the ground in the ditch, some in piles and some scattered out 20,25
meters...They were very old people, very young children, and mothers. There was blood
all over them... They were--the majority were women and children, some babies...There
was blood. Some appeared to be dead, others followed me with their eyes as I walked
across the ditch,” US v. Calley, 46 CMR 1128 (ACMR 1973), and US v. Calley, 48 CMR
19 (CMA 1973). The Government's official inquiry into this incident concluded that
"during the 1st Platoon's movement through the southern part of the sub hamlet, its

MD0033 2-2
members were involved in widespread killing of Vietnamese inhabitants (comprised
almost exclusively of old men, women, and children)," (LTG (R) W. R. Peers, The My
Lai Inquiry).

d. The Government's investigation revealed that while this carnage was taking
place, CWO Hugh Thompson, assigned to an aero-scout unit of the 123rd Aviation
Battalion, observed a large number of wounded civilians. Ironically, he radioed back so
that Charlie Company would send medical assistance. When he returned to the scene
a short time later, however, he found that the civilians were all now dead. Continuing
on, he found a ditch containing the bodies of numerous murdered civilians. Shortly
thereafter, he observed a group of 8-12 women and children running for a bunker, being
chased by a group of US soldiers. Having seen the ditch filled with bodies, he landed
his helicopter between the fleeing civilians and the US soldiers. As he left his helicopter
to talk with the lieutenant who appeared to be leading the soldiers, Mr. Thompson told
his gunner to “cover him real close.” The end result is that Mr. Thompson radioed back
and had other aircraft arrive to evacuate the civilians to safety. Mr. Thompson later
testified that he told his gunners to cover him, and to fire if the soldiers continued their
attack on the civilians while he was trying to get them to safety.

e. Suppose the American soldiers had continued their attack on the civilians-
what steps would the gunners have been entitled take to stop the Americans? The
answer is whatever steps were necessary. By international law and treaty, we are
obligated to prevent grave breaches of international law.

f. The events mentioned above are known today as the "My Lai Massacre."
Keep them in mind as we discuss the subject of the law of war, and our obligations
under it. Some people look at what happened at My Lai and say there is no law of war,
and that to fight wars by rules makes no sense; that is, that the only rule is that there
are no rules. Such people claim that a soldier's duty is to kill, and cause death and
destruction and suffering to the enemy, by any and all means available.

g. Military leaders, who have witnessed first-hand the horrors of war, know that
rampant violence, looting, pillage, killing and destruction accomplish no military
objective and are wasteful and counter-productive. During combat, things like honor,
duty, compassion, and reason are not to be discarded, to be replaced by the horrors of
places like My Lai. Words like Auschwitz, Dachau, and Buchenwald still bring back
horrible images more than 50 years later, reminding all mankind of a period when
humanity abandoned its morality, its conscience and its very humanity. To say those
horrors happened in the name of warfare does not depreciate their enormity; that was
the lesson from Nuremberg as history judged those responsible for the atrocities,

h. We don't prohibit things like that just because we're nice guys; war isn't "nice and
a lot more is involved here than simply how we wish ourselves to be regarded by the
rest of the world. There are very important reasons why we follow these rules, and we
will look at them today. In doing so, we will pay particular attention to the 1949 Geneva
Convention that granted special status to medical personnel. When captured, they are

MD0033 2-3
entitled to “retained person" status, and are not prisoners of war. They are entitled to
carry out medical duties only, and are to be repatriated once they are no longer needed
for the fulfillment of those duties. We will focus on the legal ramifications of your actions
in a combat area; understand that this area is critical to who and what you are. Your
compliance (or non- compliance) with the rules we will be talking about today can and
will have drastic repercussions on your fellow soldiers and those of our allies. As a
health care provider in the middle of a combat zone, you may find yourself caring for not
only our wounded, but also that of the enemy. Understanding why we do things like that
is critical to the successful accomplishment of your role during war time.

2-2. SOURCES OF THE LAW OF WAR

a. Customary Rules of War. Certain rules have evolved over the years as a
result of centuries of warfare. These rules didn't simply spring into being; they are
based on lessons learned by military leaders regarding the most efficient and effective
ways to wage war. The purpose of these rules is to allow a military force to most
efficiently accomplish its mission without causing unnecessary destruction and
suffering. This, of course, should sound like one of the basic principles of warfare
("Economy of Force"). Our soldiers do things in combat that make sense; at the same
time, though, they don't do things that are stupid. Violating the law of war is stupid.
History has taught US that lesson, and it is important that we learn from it.

b. Treaties of War. Several international agreements represent the major

efforts of the leaders of the world to reduce to written law certain basic concepts
concerning the customary law of war. The Hague Conventions of 1907 limit the kinds of
targets that military forces may attack, and the kinds of tactics and weapons that may
be employed against them. The Geneva Conventions of 1949 protect certain
categories of persons (prisoners of war, civilians, wounded and sick at sea, wounded
and sick on the battlefield, and medical personnel). What if a country won't sign one of
the treaties--is it still bound by customary international law? The answer is yes. Basic
principles of international law transcend the treaties and obligate all nations of the world.
Keep in mind, though, that we don't follow these rules simply because a treaty or a law
says we must; we follow them because the lessons of history have taught US that NOT
following the rules is stupid and self, defeating.

c. Compliance With the Law of War.

(1) It is federal law. Violations of the law of war are crimes, punishable
under the UCMJ. From the perspective of the commander in the field, compliance with
the law enables US to achieve a military victory faster, with minimal loss of life on both
sides. That's the point-just killing a lot of people and blowing up a lot of things won't win
a war. Think about how Iraq wasted its military resources targeting civilian areas in
Israel, indiscriminately sending SCUD missiles against: Tel Aviv (which wasn't even a
party to the conflict). Look at what good that did for Iraq while the coalition forces were
attacking military targets in Baghdad. Look at the result. Violating the law didn't allow
Iraq to obtain a military victory, but simply brought ruin upon its people and outrage on

MD0033 2-4
the part of the world. Even Iraq's neighbors were horrified at its barbaric behavior. The
United States, by carefully targeting military objectives and using minimum destructive
force, brought the war to a speedy resolution with minimum loss of friendly forces. The
Iraqi military machine was in ruin and the American forces went home to a hero's
welcome, after a ground war that lasted only a few days. The fact that our soldiers can
be prosecuted for law of war violations may not always deter them. In a combat zone,
some soldiers will commit acts of malingering (self-destruction), and may be willing to
do almost anything to get out of combat and into safety. At least in jail, nobody is
shooting at them. If they can get a trip back to Leavenworth, they might welcome that.
So, the fact that this is the law is, of course, a reason for following the rules. It is an
important reason; it is not, however the only reason.

(2) Foreign relations/world opinion. Think back to images of My Lai, which

still haunt our military almost 30 years later. What effect did the bodies of murdered
children and their mothers/fathers/brothers/sisters have on world opinion toward the US
effort in Viet Nam? Photographs of the massacre, literally, sent a shock wave around
the world. It was an absolute public relations nightmare for the US, causing uproar in
the world press and in Congress. It did more to hurt the US war effort than anything
North Vietnamese propaganda could have ever hoped to accomplish. It made many of
our own people (to include our own soldier’s question who we were and what we were
fighting for. Such a loss of morale can, of course, be devastating. Advances in
communications allow for instantaneous news coverage. During Desert Shield/Storm,
the media was everywhere, as it was when our troops landed in Somalia. During the
Gulf War, the media sent home pictures of our soldiers liberating Kuwait and receiving
surrendering Iraqi POWs who were trying to turn themselves in to American soldiers,
American journalists, or anyone from our Country. Think about what that did to
strengthen our morale and war effort, both for the troops over there, and those back
home. Think about how this looked as the press flashed the images across the world.
Indeed, the news media can help coalesce public and world opinion to support the war
effort, or to question and challenge it.

(3) Domestic public opinion/publicity. Similar to world opinion and how we

are viewed by the press, look at what the My Lai Massacre did to home front support of
the war effort. Violating the law makes our allies, the American people, Congress, the
press and, indeed, even our own soldiers, question our war effort. This loss of support
can be crippling to our soldiers who are fighting a war on strange and foreign soil.
During Desert Shield/Storm, school children across America sent presents to our
soldiers and wrote them letters; there were prayer vigils across the land as our soldiers
went into harm's way. Our soldiers took with them the thoughts of our entire nation, and
they knew it. Words cannot measure the importance of that kind of support. Imagine,
though, how America would have reacted if they saw images of murdered children
laying in ditches across the desert, the handiwork of our soldiers-do you think our
school children would have sent the letters and presents? More likely we would have
set off demonstrations across the land against our own soldiers. Americans regard
themselves as fighting war for noble purposes. Defending tiny nation like Kuwait

MD0033 2-5
against a bully marauder was just such a cause. We went to Iraq to take on the bully
and make it retreat. Imagine how America would have reacted if we allowed ourselves
to become the very evil we had gone over there to fight against.

(4) Reciprocity with nations involved. The idea here is that if one nation
complies with the law, all nations involved in the conflict will have an incentive to do so
likewise. That doesn't always work, of course but this doesn't mean that we simply
ignore rules ourselves. This is just one of the reasons for complying with the law; there
are many others. Besides, the reverse is true--if we violate the rules, we will inevitably
cause the enemy to do so likewise, resulting in retaliatory reprisals against our own
forces. Thus, our violations will, indeed, come back to haunt us and we may wind up
having caused the deaths of our own fellow soldiers.

(5) Facilitation of restoration of peace. History has shown us that today's

enemy may be tomorrow's friend. Recall that in World War II, our adversaries were
Japan and Germany; today we have various treaties with them, bound together by our
common interests. Similarly, during World War II, the US and Russia both fought
against Germany. Violating the law of war makes the enemy hate us with such fervor
that it may be much more difficult, if not impossible, for former enemies to now live
together in peace. The conflict, however, will not last forever; it is in our self interest to
resolve the fighting and return the warring parties to a state of at least peaceful co-
existence.

(6) Violations strengthen enemy\ resistance. While all of the above reasons
are important ones, if you had to pick the single most important reason, this would
probably be it. Our violations enrage the enemy and make its soldiers want to avenge
our atrocities; we make the enemy's desire to kill us that much stronger. What sane
soldier would want to give the enemy a rallying cry that could be used to strengthen its
resolve to fight on to the death and defeat us? This is a lesson that has been learned
from history, sometimes in a very painful manner. Think of the effect the Mexican Army
had when General Santa Ana's troops marched on the Alamo under the red flag, the
General having ordered that no prisoners be taken. With the subsequent slaying of the
defenders at the Alamo, Mexico won the battle that day, but its actions lead to its defeat
shortly thereafter at the San Jacinto River where General Sam Houston, leading the
badly out-manned Army of Texans, lined his men up and gave them the order,
"Remember the Alamo". Remember it they did.

(7) Malmedy Massacre. Think also of the Malmedy Massacre in World

War II and how the actions of the German soldiers gave the Americans a reason to fight
with even greater ferocity to avenge the deaths of their fellow soldiers. The point here is
that our violations can give the enemy a rallying cry, something that may urge enemy
soldiers to fight on to the death in order to bring death and destruction to our own
soldiers. Why would we give the enemy an incentive NOT to surrender? What we want
is to encourage him to surrender, not deter that from happening. During the Gulf War,
for example, many lives were spared (many of which were undoubtedly our own) when
the Iraqi Republican Guard stopped fighting against the advancing Coalition Forces.

MD0033 2-6
Which would you prefer: (a) 10,000 enemy soldiers laying down their weapons and
surrendering; or (b) 10,000 enemy soldiers willing to fight to the death in order to take
as many Americans as possible to the grave with them? The answer is obvious.

(8) Personal/religious/moral values. Our conduct in combat says a lot about

who and what we are. Strangers in the strange land we have deployed into, we take
with US all that we are. We can fight a battle to stand along with the forces of justice
and good in the world, or we can come to be viewed (or, perhaps worse, come to see
ourselves) as the evil that we would oppose. Americans are not a mercenary force,
simply looking for a chance to blow things up; rather, they fight for a purpose, which is
reflected in our national values. The way we wage war says a great deal about the
values that we are fighting to defend. You can't defend freedom and liberty in the world
if you see yourselves as herding a lot of women and kids into a ditch and murdering
them in places like My Lai.

(9) Violations breed indiscipline. Discipline in combat is critical. Without it,

our forces become an unruly mob, more of a treat to themselves than any enemy.
Violating the law breeds more violations and soon there is only ensuing chaos, as law
and order (and the chain of command) break down. Soldiers who feel free to violate the
rules and commit rape and murder may decide that all is fair game, and that any
indiscretions are now permissible. No commander can lead troops in such a scenario.
Undisciplined soldiers are simply accidents and crimes waiting to happen. In an
environment as dangerous as the Gulf War, such a situation would be a recipe for total
disaster.

2-3. UNDERLYING PRINCIPLES OF THE LAW OF WAR

a. General. Before turning to the treatment afforded medical personnel, it is

important to first briefly look at the basic rules governing combat in general. The rules
cover both prohibited weaponry/means of warfare and prohibited targets. Think of the
term "MAP."

b. Military Necessity. This is the “M”. The law does not allow indiscriminate
violence. Certain targets are prohibited from attack. Prohibited targets include civilians,
the wounded and sick, prisoners of war, and medical personnel (we'll return to this in
more detail shortly). Medical units may not be deliberately attacked (although they may
10 their status by committing acts harmful to enemy). Also, certain buildings may not be
attacked.

c. Attack on Prisoners of war. Why not attack enemy POWs, since they're the
enemy, aren’t they? That sort of question misses the point. We want them to surrender
and if we mistreat or kill them, then other potential POWs will have no incentive to
surrender. Instead, they’ll keep on fighting to the bitter end. We want to get them to
surrender, not keep on fighting US to the death. Thus, murdering their comrades would
be stupid, since it would just prolong the war and cause other enemy soldiers not to
surrender. That makes no sense.

MD0033 2-7
 d. What Buildings Are Protected? The answer is hospitals, museums, and
others dedicated to religion, art, science, and educational or charitable purposes. Why
don't we target these? Asking, that is, looking at things upside down. The real question
is: why would you want to target such things? Are you going to end the war by blowing
up a museum, which enrages the enemy and perhaps causes it to target our museum
or hospital, and soon we've blown up all of each other’s museums and schools. Do you
think this will end the conflict? Why waste our scarce and very valuable resources flying
over a church so we can blow it up? What if the enemy shoots down our multi-million
dollar aircraft and we lose both it and our trained/experienced crew-- why did we waste
all of that? Was it so we could blow up a church or a museum? What would be the
point? Again, violating the law of war doesn't make sense; it's stupid. We target military
objectives, not churches and schools and hospitals. Instead of going after museums,
go after communications and logistics facilities; that's what will win the war. If the
enemy uses an otherwise protected structure for a military purpose, then the protection
is forfeited and it may be targeted. Prior to targeting it, we are required to first warn the
enemy to cease and desist (if the tactical situation allows for such). Another protected
place is what is called an "undefended place," which is an inhabited location near or in a
zone where opposing forces are in contact and which is open for occupation by an
adverse party without resistance. Such an area mustn't contain lawful military targets or
be used for military purposes. This reflects the fact that we cannot simply wage war
upon the civilian populace.

e. Prohibited Tactics. Certain tactics are also prohibited, such as declaring

that no quarter will be given. This is common sense, as why would you want to
encourage the enemy to keep on fighting? If you knew the enemy soldiers would kill
you if you surrendered, what would you do? Would you surrender? Not hardly, it is
also forbidden to use a flag of truce to feign surrender in order to surprise an enemy.
We want the enemy to respect the white flag of surrender. If we want the enemy to do
something, then we can't hurt him because he did it. If we trick him, then what happens
next time? Again, the result will bring about the needless deaths of our own soldiers.
Similarly, we cannot use a red cross to move weapons in a vehicle we are disguising as
an ambulance. If we do this, then the enemy will have reason not to respect the red
cross and we will have given him a reason to attack our ambulances.

f. Avoiding Unnecessary Suffering. This is the" A." Weaponry must be

reviewed for its legality under the law of war (AR 27-53). The prohibition states that we
may not use weapons calculated to cause unnecessary suffering; that is, the suffering
may not be needless, superfluous, or grossly disproportionate to the advantage to be
gain by their use. Examples of prohibited weapons are hollow point ammunition;
dumdum (soft- nosed) bullets, irregular shaped bullets, substances/projectiles that
would tend to inflame a wound, and poisoned weapons. Weapons/ammunition issued
to US soldiers are legal, provided soldiers do not alter them

(1) The US has renounced the first use of chemical weapon by treaty. By
Executive Order, however, we have gone a step further and renounced use of this sort
of weapon altogether. We have renounced the use of biological weapons altogether.

MD0033 2-8
War is horrible enough without resort to something this. Biological weapons, for
example, involve living organisms that are capable of mutating into heaven only knows
what. We could unwittingly unleash a plague upon the enemy upon ourselves, and
upon the world.

(2) The world community has not arrived at a consensus that would prohibit
nuclear weapons. Their use would involve a strategic-level determination that such
would not cause unnecessary suffering and would proportional to the objective to be
attained. The attack on Japan, for example, brought about a prompt end to the War,
thereby avoiding the need to invade mainland Japan. Given the fanaticism of the
Japanese soldiers and their willingness to die for the cause, such an invasion would
likely have produced millions of casualties on both sides.

g. Proportionality. This is the "P," The rule is one of common sense; don’t
swat the fly by shooting it with a tank. The death/destruction must be proportional to the
military objective to be achieved. If an enemy soldier is firing at your unit from a window
of a hospital, you have the right to take him out. This doesn't mean that you need to
bring in the United States Air Force (USAF) to level the entire hospital as well as the
rest of the surrounding civilian community.

2-4. GENEVA CONVENTION RELATING TO MEDICAL PERSONNEL/MEDICAL

EQUIPMENT

a. General. We noted earlier that the law of war protects certain categories of
persons from attack. Medical personnel consist of one such category.

b. Article 24 and Article 26, Personnel. Permanent medical personnel

(doctors, nurses, and so forth), chaplains (Article 24 personnel), personnel of the
National Red Cross, and other recognized relief organizations (Article 26 personnel).
The position of The Surgeon General's Office is that all AMEDD personnel assigned to
AMEDD duties are Article 24 personnel. This includes personnel assigned to the
Medical Corps, Dental Corps, Nurse Corps, Medical Service Corps, and Medical
Specialist Corps. It encompasses not just doctors and nurses, but also physicians'
assistants, medics, and so forth, so long as they are permanently assigned to medical
duties.

c. Medical Support Personnel. What about support personnel that do not

directly treat patients; that is, the ambulance driver or office staff? Those who look after
the administration of medical units and establishment are similarly protected, as they
form part of the medical service of the military, that is, they are an integral part of the
medical unit/establishment, which could not function without them. The same is true for
those assigned to staff positions within an AMEDD organization. To use an analogy, if
a MASH unit were overrun by the enemy, Captain Hawkeye would be protected, but so,
too, would Colonel Potter, Corporal Klinger, Corporal Radar, and so forth. None of
these people are combatants. These personnel "shall be respected and protected in all
circumstances," and may not be intentionally attacked. Upon capture, they are

MD0033 2-9
"retained personnel," not POWs. If these personnel perform non-medical duties that are
harmful to the enemy, however, they lose their protection as retained personnel and will
be treated as POWs.

d. Personnel Performing Non-Medic Duties. What sort of non-medical duties

might a commander consider having his/her medical personnel to perform? Some
examples are: perimeter security, picking up/distributing mail and similar administrative-
type duties, in support the medical unit. That is the key; that is, the administrative duties
they perform must be in support of the medical mission, and not things like general
perimeter security on behalf of tactical units or things like that. In a deployment
scenario, professional personnel may find themselves doing all sorts of things. In
Desert Storm, for example, attorneys participated in the latrine detail, tent clean-up
defensive bunker construction, and things of that nature. These are not actions
"harmful to the enemy" and would not deprive a doctor of his special status.

e. Medical Duties Harmful to the Enemy. Is it a violation of the law of war for
a commander to order medical personnel to perform duties that are harmful to the
enemy; that is, to pick up a weapon and shoot at enemy soldiers? The answer is no.
The problem is that such actions would cause the medical personnel to lose their
protected status, thereby subjecting them to attack from the enemy. This would
jeopardize the lives of medical personnel and their patients. Were you to do this, it
might then result in the enemy launching an attack against our medical facilities and
personnel. After all, if it looks like, sounds like, smells like, and shoots like combatant, it
is likely to be regarded as one.

(1) Treatment of retained personnel.

(a) Can only be required to perform medical duties.

(b) Must receive at least the benefits conferred upon POWs.

(c) They may be retained as long as needed to tend to the sick and
wounded. They are to tend to any sick and wounded soldier, regardless of what
uniform that soldier is wearing.

(d) They must be repatriated (returned) when" retention is not

indispensable...as soon as a road is open for their return and military requirements
permit" (FM 27-10, paragraph 231).

(e) They must obey camp rules.

(2) Auxiliary medical personnel (Article 25). This covers persons other than
Article 24 personnel. They would normally be combatants, but have been "specially
trained for employment, should the need arise, as hospital orderlies, nurses, or auxiliary
stretcher- bearers, in the search for or the collection, transport, or treatment of the
wounded and sick" (FM 27-10, paragraph 226). If carrying out these duties at the time

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of capture, they may not be deliberately targeted. They are not, however, retained
personnel, but are treated as POWs. Upon capture, however, they shall be employed in
medical duties insofar as the need exists. Absent that need, though, they may be put to
work on other tasks around the camp.

(3) Medical units/establishments. A fixed medical establishment may not be

intentionally attacked. It should be situated away from military objectives, in order to
safeguard it from collateral damage. If captured, it must be allowed to continue caring
for the wounded and sick. As we saw previously, the protection is lost if it is used to
commit acts harmful to the enemy.

(4) Conditions not depriving a medical unit of its protected status.

(a) Unit personnel armed for their own defense. Suppose medical
personnel are carrying weapons does this jeopardize their protected status? The
answer is no, so long as they are carrying small defensive arms, to be used for their
own protection. Small arms mean things like a .45 pistol or M-l6 rifle. These may be
carried for the protection of the person and his patients, protection against an enemy
who might attack them in violation of the law of war. These people should not, however,
be carrying offensive weapons such as a .50 caliber machine gun or anti-tank weapons,
grenade launchers, or things like that.

(b) Suppose medical persons use these weapons to fire at enemy

soldiers? Our protected medical personnel are not combatants. They have an
important role to play in wartime, but shooting at the enemy isn't what that role is. So
long as the enemy complying with the law of war, the medical personnel may not use
their small arms weapons in such an offensive manner, or they will lose their protected
status and thereby become combatants. Once that happens, they are legitimate
targets. It is only when the enemy violates the law of war that the medical personnel
may use these defensive weapons. Is it a law of war violation if they use them against
an enemy who is complying with the law of war? The answer is no. What will happen,
though, is that they will lose their protected status, thereby bringing themselves (and
perhaps their medical unit) under attack.

(c) Unit is guarded by sentries. Remember, as long as the sentries are

guarding the medical facility, this would not result in a loss of its protected structure.
Again, though they may only use the weaponry in a defensive manner against an
enemy that is acting contrary to the law of war. So long as the enemy is complying with
that law, using the weaponry against him would be improper. Suppose the medical
personnel are guarding non-medical facility? This would jeopardize their protected
status. They should not be assigned to administrative duties not directly connected with
the operation/administration of the medical facility.

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 (d) Unit has weapons taker from the wounded on hand. This does not
violate the law of war or lose the hospital's protected status. The hospital must not,
however, transform itself into a stockpile of offensive weaponry, and should get rid of
this material ASAP.

(5) Medical transports. Like a hospital or other medical establishment, a

medical transport may not be attacked so long as it is performing its medical function. It
must, however, submit to an inspection by opposing force. If it is performing medical
duties, it must be allowed to continue with mission. If not, then it may be seized. At that
point, the transport itself (aircraft or ambulance) may be used by the enemy for any
purpose, although it will have to remove any distinctive medical insignia, such as a red
cross. (Note, however, that captured medical material must be used to treat the
wounded and sick).

(6) Distinctive emblems of the Convention. The most common is the red
cross on a white background. The Red Star of David hasn't been officially authorized by
the Convention, but it is recognized in practice. Suppose you recognize a medical
transport, but it does not bear a red cross or other emblem; can it be attacked? The
answer is no. The distinctive emblem is simply to facilitate its recognition as such, so
the enemy will be able to clearly identify it and, accordingly, not inadvertently target it. If
you recognize it without that emblem, then you know what it is, and you may not attack
it. Besides, once you recognize a structure as being a medical facility, why would you
want to attack it in the first place?

(7) Remove Red Cross marking from vehicle. What if the commander
orders the red cross removed from all military vehicles; does this violate the law of war?
The answer is no, but this may prevent the enemy from recognizing it as a medical
transport, thereby resulting in it being targeted. What if the commander wants to not
only remove the Red Cross, but also use the ambulance to transport military weaponry?
The answer is that so long as you don't misuse the protected symbol, you may use the
vehicle for a non-military purpose. Again, without the red cross, though, it may be
targeted. In this case, such targeting would be wholly appropriate, in view of the
intended use of the vehicle.

(8) Add Red Cross marking to vehicle. How about the opposite situation--
can I take a tactical vehicle and mark it with a red cross to avoid it being attacked while
it is performing non-medical functions? The answer is no, since the misuse of the
medical emblem is a war crime. Also, it's stupid, since you would cause the enemy not
to protect your medical facilities. Why invite the enemy to attack your medical
personnel?

(9) Priority of treatment of the wounded and sick. The priority of treatment is
based on the severity of the wound/injury; we may not discriminate in the allocation of
medical care based on one s nationality. The first priority is immediate; the second is
delayed; the third is minimal (can be returned to duty with minimal care) and the last
category expectant. Does this mean we may have to treat an enemy soldier before we

MD0033 2-12
treat one of our own? The answer is yes, depending on severity of injuries they have
sustained. As we noted at the beginning, we want the enemy to surrender. If enemy
soldiers feel we'll mistreat or kill them, then why would they ever surrender to us? We
want them to know we will take care of them upon surrendering; that is, that we will give
them food, water, shelter, safety, and medical attention. That way, we give them an
incentive to surrender. To do otherwise would be to encourage them to keep on
fighting, which would be stupid.

2-5. THE GENEVA CONVENTIONS AND GULF WAR

a. Actions By the Iraqis. The action of Iraqi's military leaders recently

demonstrated the importance of complying with the law of war. Iraq spent much of the
war effort wasting its military resources targeting civilian areas Israel, indiscriminately
sending SCUD missiles against civilian neighborhoods in places like Tel Aviv. (Israel, of
course, wasn't even a party the conflict.) What good did it do? The result was simply to
outrage the world, which reacted with almost universal condemnation of Iraq. Indeed,
even many of the Arab nations were horrified by what Iraq did, and these nations fought
alongside the Coalition Forces to defeat Sadam Hussein.

b. Mistreatment of Prisoners. Iraq mistreated captured American pilots. The

result did not make other American or Coalition soldiers afraid of Iraq; rather, it gave
them a little "something extra” to fight for. Meanwhile, regardless of Iraq's actions, the
Coalition Forces treated enemy prisoners in accordance with the Conventions. The
result was that a trickle of surrendering Iraqi prisoners soon erupted into a torrent, as
hundreds and then thousands of their soldiers fled in disarray. In short, Iraq's violations
simply brought ruin upon its people.

c. Home Front Support. How important is home front support? The answer is
that it is incalculable. Think of the American soldiers living in the sand, dust, and heat
for many months. Every morning, at chow line, the soldiers could reach into a huge
barrel full of letters of support and hope and prayer, written to them by Americans half a
world away. School children across America sent pictures and playing cards and food
and games, and anything they could send, as Americans said a collective, "thanks." At
a lonely Christmas in the desert, the soldiers received presents from people they had
never seen, and whom they never would see. But it represented solidarity, a union of
the American people and those who went into harm's way to protect its interests. And
when war erupted, the American people held their breath, for the soldiers had come to
be their sons and their daughters. We were over in the proverbial strange and foreign
land, fighting for the interests of a small nation that had been overrun by a bully, fighting
to defend other such nations, and to take on the bully and the terrorists in their own
back yard. And when it ended, the Americans came home to parades and cheers and a
welcome reserved only for heroes. Imagine what would have happened if the
Americans, instead of being the proud, dedicated, professional soldiers that they were
and that they are, embarked upon a course of senseless carnage, blowing up school
children, murdering people, and simply destroying everything and anything in their path.
The reaction back home would have been entirely different.

MD0033 2-13
 d. Allied Demonstration. We demonstrated to the world who we are and what
we are, and sent a loud message to all regarding the sort of things we fight for. War
isn't just to kill, maim, and destroy. War isn't a time when mercenaries can simply be
cut loose to destroy and ravage and pillage. The actions of the Coalition Forces
enabled the swift defeat of an enemy that had one of the largest military machines in the
world. Iraq's violation of international law did nothing to achieve a military objective or
victory, but simply united the world against it. It was a lesson for which Iraq paid dearly,
as is generally the case.

2-6. CONCLUSION

When your fellow soldiers ask why we comply with the law of war, the answer
isn’t just because we're nice people who want to do the right, humane thing. That may
be a part of who and what we are all about, but it certainly isn't the whole picture. The
law of war is the result of centuries of experiences on the battlefield. We do things
because it makes sense to do them, because violating the law of war is just plain stupid.
We don't bomb museums and blow up churches because that’s a stupid waste of
ammunition and a reckless irresponsible endangerment of the lives of our aircrews.
Such actions on our part would do nothing to shorten the conflict, but would only serve
to inflame the enemy and intensify its will to fight us to the death at all costs.
Compliance with the law of war enables us quickly attain a military victory, with minimal,
destruction and loss of life on both sides, and that's what this is all about.

Continue with Exercises

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EXERCISES, LESSON 2

INSTRUCTIONS. Answer the following exercises by marking the lettered response that
best answers the question or best completes the incomplete statement or by writing the
answer in the space provided.

After you have completed all of these exercises, turn to "Solutions to Exercises" at the
end of the lesson and check your answers. For each exercise answered incorrectly,
reread the material referenced with the solution.

1. The case of US vs. Calley during the early 1970s was pertaining to an event
known as the _____________________.

2. The ____________ Convention held in 1907 limited the kinds of targets that
military may attack, and the kinds of weapons that may be used against them.

3. The underlying principles of the law of war addresses military necessity, avoidance
of unnecessary suffering. And proportionality is known by _______________.

4. It is a violation of the Law of War for a _________________ to order medical

personnel to pick up a weapon and use it offensively at an enemy soldier.

5. Medical personnel may carry small arms such as the .45 ________ or
_____________ for the protection of the soldier and/or their patients.

6. We may not discriminate in the allocation of medical care based on one’s

____________________.

7. The first priority for treatment of the wounded and sick is termed ___________.

8. The reason for complying with the Law of War is that we want the enemy to
_________________ rather than to think we will mistreat or kill them.

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 9. Depending on the ____________ of injuries, we must threat to captured enemy
soldier before we treat our own.

10. When the enemy feels that we will not provide food, water, shelter, and safety, he
will be encouraged to keep on ___________ rather than surrender.

Check Your Answers on Next Page

MD0033 2-16
SOLUTIONS TO EXERCISES, LESSON 2

1. My Lai Massacre (para 2-1)

2. Hague (para 2-2b

3. “Map” (para 2-3a-e)

4. commander (para 2-4e)

5. pistol, M-16 rifle (para 2-4e(5)(a))

6. nationality (para 2-4c (9))

7. immediate (para 2-4c (9))

8. surrender (para 2-4c (9))

9. severity (para 2-4c (9))

10. fighting (para 2-4c (9))

End of Lesson 2

MD0033 2-17