Marcus S. Smith Hildegard U. Smith v. William Marshall, Jr., M.D.

This is a medical malpractice suit against a military physician. Jurisdiction in the district court was founded on diversity of citizenship. The case presents two questions never addressed by this circuit: (1) whether an American military physician working in a foreign country is immune from a malpractice suit under 10 U.S.C. § 1089 (1982) and (2) whether the physician is immune from suit under the recently enacted Federal Employees Liability Reform and Tort Compensation Act of 1988 (“FELRTCA”). FELRTCA, Pub.L. No. 100-694,102 Stat. 4563 (1988). The district court dismissed the complaint against the physician, substituted the United States as a defendant, and then dismissed the action. We have jurisdiction under 28 U.S.C. § 1291 . We reverse.

FACTS AND PROCEDURAL HISTORY

Sergeant Marcus Smith was stationed in Italy. William Marshall, M.D. worked as a military physician in the Army medical facility in Vicenza, Italy. He treated Hilde-gard Smith, Sergeant Smith’s wife, during the birth of the Smiths’ son, Dominique. The Smiths allege that, as a result of Dr. Marshall’s negligence, Dominique sustained massive brain damage.

After the briefs were filed in this appeal, Congress…