appearance, and had a more positive attitude. (T. Katta Tr. 48-50.)
On December 7, 1984 Dr. Munas found Ted Katta to be in nearly full remission. On December 20, 1984 and January 3, 1985, Dr. Munas found Ted Katta to be in full remission. Accordingly, on January 3 Dr. Munas changed the schedule of Ted Katta's visits to once per month. Ted Katta's next appointment with Dr. Munas was scheduled for January 31, 1985.
According to Tina Katta, after December of 1984 Ted Katta indicated that he was not going back to the VA. He had stopped taking his medication. (T. Katta Tr. 50-51.) It was after Ted Katta stopped taking his medication and stopped going back to the VA that his condition began to worsen. (T. Katta Tr. 51.) Tina Katta admitted that her ex-husband had a pattern of beginning treatment and other activities, and then repeatedly dropping out.
(T. Katta Tr. 51-54.)
On January 9, 1985 Dr. Sumner Garte, a vocational psychologist, interviewed Ted Katta. Dr. Garte referred Mr. Katta to see Jerry Pence, an employee of the Illinois Disabled Veteran's OutPatient Placement on January 10 and 23, 1984. A progress note relating to Ted Katta, dated January 10, 1985, signed by Mr. Pence, was part of Dr. Garte's file.
On January 16, 1985 Ted Katta went to the Central Testing Unit at the North Chicago VA for psychological and vocational testing.
On January 22, 1985, Claire Cafaro, a social worker, interviewed Ted Katta. Ms. Cafaro found that Ted Katta presented himself somewhat guardedly and did not acknowledge the need for treatment other than job counseling. Ted Katta also expressed to Ms. Cafaro his wish not to return for further treatment. In fact, he asked whether he had to keep coming to the VA. Also on January 22, 1985, Dr. Aldo Santorum, a psychologist, conducted a psychological evaluation of Ted Katta.
In January of 1985 Helen Katta was aware that her son's behavior was beginning to deteriorate. (H. Katta Tr. 48.) His nightmares, screaming, and running up and down the hallway had started again. (H. Katta Tr. 49.) He began breaking things again. (H. Katta Tr. 50.) He appeared to have stopped taking his medication. (H. Katta Tr. 66.) Ted's ex-wife, Tina, also noted that Ted was back to his "same horrible self." (T. Katta Tr. 45.)
Neither Helen nor Tina Katta informed anyone at the VA of Ted's worsening behavior. (T. Katta Tr. 51.) Indeed, after his interview and evaluation at the North Chicago VA on January 22, 1985, neither Ted Katta nor his parents ever sought the help of the medical staff of the VA or Chicago Read.
Ted Katta failed to appear for his appointment with Dr. Munas on January 31, 1985. On February 15, 1985, Dorothy Haymes, a case management technician in counselling psychology, called Ted Katta to inquire whether he planned to return for further counseling. Ms. Haymes' note of that same day reflects that Ted Katta did not wish to return for further counseling appointments and that he was looking for work.
On February 21, 1985, Dr. Garte sent Ted Katta a letter along with a questionnaire about the Counseling Psychology Service, of which Dr. Garte was chief. The North Chicago VA has no record that Ted Katta responded to that letter or questionnaire.
On February 28, 1985 Ted Katta again failed to appear at his scheduled appointment with Dr. Munas at the North Chicago VA. On March 27, 1985 Ted Katta failed to appear yet again for his scheduled appointment with Dr. Munas. On March 28, 1985, Dr. Munas signed a note discharging Ted Katta from clinic status because of his refusal to appear for appointments.
In the spring of 1985, Ted Katta repeatedly tore up mail he received from the VA without reading it. Although Helen Katta knew of this behavior, she did not inform anyone at the VA. Tina Katta also failed to notify the VA that her ex-husband's condition was worsening. (T. Katta Tr. 51.)
By late July of 1985, Ted Katta's condition had deteriorated substantially. (H. Katta Tr. 85.) He had become abusive and threatening again both to his parents and to his ex-wife, Tina. (H. Katta Tr. 85-86; T. Katta Tr. 42-43) In fact, Helen Katta saw the same symptoms again in her son that had led her to have him involuntarily committed to Chicago Read in October of 1984. (H. Katta Tr. 86.)
During the period between 1982 and 1985, when Ted Katta was living with his parents, his three sisters never offered to do anything to help him. Helen Katta never suggested that his sisters help him. (H. Katta Tr. 83.)
Toward the end of July, 1985, Helen Katta and her husband took a three-week trip to a property they owned in Arizona. (H. Katta Tr. 57-58, 86.) Ted Katta stayed at his parents' home in Chicago, alone. (H. Katta Tr. 58, 87.) Before Ted Katta's parents left for Arizona, Ted repeatedly asked Helen Katta how long she would be gone and when she would be coming home. (H. Katta Tr. 87-88.)
Although Helen Katta had no telephone at her Arizona property, she gave her three daughters a telephone number where she could be reached in Arizona. She did not give the number to Ted Katta, but believed his sisters had given him her phone number. (H. Katta Tr. 58-59, 88.)
While his parents were in Arizona, Ted Katta called his daughter, Deneen, who was living with her mother in McHenry, Illinois. Ted Katta asked Deneen to come spend a week with him in Chicago. She refused.
On August 8, 1985, Ted Katta called his son, Bryant, who also lived with Tina Katta in McHenry. He asked Bryant and his sister to spend the weekend with him. Bryant told him that they had other plans.
On August 9, 1985 Ted Katta's parents returned from Arizona. (H. Katta Tr. 59.) They had not spoken with Ted for the entire three weeks they were gone.
(H. Katta Tr. 58-59, 88.)
Helen Katta and her husband arrived at their home on August 9 at 6:30 p.m. When they greeted their son, he did not respond. A short while later he stormed out of the house. (H. Katta Tr. 59.)
Ted returned a short while later. He then left the house and returned again two more times. (H. Katta Tr. 60.) Ted Katta left the house one last time. (H. Katta Tr. 60.) Helen Katta never saw him again. (H. Katta Tr. 61.)
That same evening, at approximately 11:30 p.m., Ted Katta walked into the path of a Chicago Northwestern commuter train near the intersection of the 4200 block north and the Kennedy Expressway in Chicago. He died from that collision.
The Government makes several arguments as to why the VA cannot be held liable for Ted Katta's death. The court finds either one of two dispositive: (1) based upon the facts brought out at trial, the Feres doctrine deprives this court of subject matter jurisdiction over this case; and (2) even if the Feres doctrine were no bar to plaintiff's claim, plaintiff has failed to prove by a preponderance of the evidence that the VA's alleged negligence proximately caused Ted Katta's death.
The court discusses each of these issues below.
A. The Feres Doctrine
In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Supreme Court created an exception to the limited waiver of sovereign immunity contained in the FTCA. The Court held that "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." Id., 340 U.S. at 146, 71 S. Ct. at 159. The Feres doctrine bars suits by servicemembers against the Government even if the alleged negligence is by civilian employees of the federal government, as opposed to alleged negligence on the part of members of the military. United States v. Johnson, 481 U.S. 681, 686-88, 107 S. Ct. 2063, 2066-67, 95 L. Ed. 2d 648 (1987).
In this case the court finds that Ted Katta's death arose out of his post-traumatic stress disorder -- a disorder brought on as a result of Mr. Katta's military service in Vietnam. Accordingly, the Feres doctrine precludes any liability for Ted Katta's death which the Government otherwise might bear.
At trial plaintiff proved that Ted Katta suffered from PTSD. Plaintiff first presented the testimony of James L. Moore, the social worker at the North Chicago VA (Moore Tr. 2-3) who interviewed Ted Katta on February 3, 1982. (Moore Tr. 6.) On Ted Katta's application for treatment, Mr. Moore concluded that Ted Katta was suffering from PTSD.
(Moore Tr. 7-8; Pl. Ex. 3 at G000433.) Dr. Helen Mitchell, a staff psychiatrist at the North Chicago VA, signed the medical certificate containing Mr. Moore's diagnosis of PTSD. (Moore Tr. 8-9; Pl. Ex. 3 at G000433.)
At trial, Mr. Moore did not change his diagnosis that Ted Katta suffered from PTSD. Over the ten year period that Mr. Moore had been working at the North Chicago VA prior to diagnosing Ted Katta, Mr. Moore had been involved with hundreds of cases of PTSD. (Moore Tr. 10.) Indeed, between diagnosing Ted Katta on February 3, 1982 and trial, Mr. Moore had seen over five hundred more cases of individuals with PTSD. (Moore Tr. 10.) This court found Mr. Moore's testimony relating to Ted Katta's PTSD both reliable and credible.
Plaintiff's medical expert, Dr. Donald G. Langsley, also testified that Ted Katta suffered from PTSD. (Langsley I Tr.
78; Langsley II Tr.
18, 55.) Specifically, Dr. Langsley testified that on November 30, 1984, when Ted Katta was transferred to the North Chicago VA, Mr. Katta suffered from PTSD. (Langsley I Tr. 83.) Dr. Langsley further testified that up until his death, Ted Katta's history of PTSD was a factor which made him a potential suicide candidate. (See, e.g., Langsley II Tr. 72.) Dr. Langsley based his opinions in part on a Veterans Administration Rating Decision stating that Ted Katta was suffering from PTSD at the time of his death.
(Langsley I Tr. 63; Pl. Ex. 6 at CF000038.)
In addition to proving that Ted Katta suffered from PTSD, plaintiff proved by a preponderance of the evidence that Ted Katta's PTSD was a result of his combat experience in Vietnam. For example, Mr. Moore testified that Ted Katta's combat experience in Vietnam was the stressor that evoked his PTSD. (Moore Tr. 23-24, 29.) Similarly, Dr. Langsley testified that Ted Katta's PTSD stemmed from his experiences in Vietnam. (Langsley I Tr. 83.) Accordingly, the court finds that Ted Katta's PTSD arose out of an activity incident to service -- namely, his traumatic Vietnam War combat experiences.
Finally, this court finds that Ted Katta's death was a suicide resulting from his PTSD. Dr. Langsley testified that in wounded Vietnam war veterans PTSD may last "for years and years and years, indeed for a lifetime." (Langsley II Tr. 56.) Dr. Langsley identified Ted Katta's PTSD as one of the risk factors which would make Ted Katta a potential suicide candidate. (Langsley II Tr. 72.) Again, Dr. Langsley based his opinion that Ted Katta's death was suicide in part on the Veterans Administration Rating Decision which concluded that Ted Katta killed himself.
(Langsley I Tr. 63; Pl. Ex. 6 at CF000038-39.)
Mr. Katta's behavior corroborates the court's conclusion that Mr. Katta committed suicide because of PTSD stemming from his Vietnam combat experiences. Ted Katta's combat experiences were undisputedly traumatic. He received multiple gun shot wounds, resulting in injuries to his right hip, right arm, and right shoulder. He lost sixty five pounds during the approximately one year he was in Vietnam. Indeed, his physical condition was so changed that his mother did not even recognize him when he returned home.
After his discharge from military service, Mr. Katta refused to discuss his experiences in Vietnam with anyone. He appeared to harbor much understandable anger and hatred about the experience.
Although Ted Katta had no sleeping problems before he went to Vietnam, after returning home he started to have violent nightmares -- nightmares relating to his combat experiences.
For example, more than once he slung his wife Tina over his shoulder while the two of them were sleeping in bed and shouted, "Don't worry, Mike, everything's okay, I got you, I got you." (T. Katta Tr. 7, 15-16.) At night he would sit alone in his home, with the lights off -- sometimes dressed in combat fatigues and face paint. After he moved in with his parents, Mr. Katta continued such conduct, repeatedly awakening during the night and running down the hallway waving a black scarf he had brought back with him from Vietnam.
By late July of 1985 -- a few weeks before his death -- Ted Katta's condition was much the same. He was exhibiting the same extreme behavior that had lead his mother to involuntarily commit him in 1984. A few weeks later Ted Katta walked into the path of a Chicago Northwestern commuter train, killing himself.
These facts, combined with the medical diagnoses of Mr. Moore and Dr. Langsley, convince this court that Mr. Katta committed suicide on August 9, 1985, as a result of PTSD stemming from his combat experiences in Vietnam.
Because the court finds that Ted Katta's death arose out of the PTSD caused by his service in Vietnam, the Feres doctrine divests this court of subject matter jurisdiction over this case. Feres, 340 U.S. at 146, 71 S. Ct. at 159.
Plaintiff's argument that this case does not implicate the policies underlying the Feres doctrine and thus is not barred by it is unavailing. Allowing claims like plaintiff's to proceed would risk "involving the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." Johnson, 481 U.S. at 690, 107 S. Ct. at 2069, quoting United States v. Shearer, 473 U.S. 52, 59, 105 S. Ct. 3039, 3044, 87 L. Ed. 2d 38 (1985). Lawsuits based upon suicides caused by military combat experiences necessarily implicate the military judgment and decisions of officers like those who commanded Ted Katta. Such military decisions are inextricably intertwined with the conduct of military missions. The integrity of such military decisions are expressly protected by the Feres doctrine. Id; see also Rogers v. United States, 902 F.2d 1268, 1271-72 (7th Cir. 1990).
Plaintiff cites United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954) for the proposition that the Feres doctrine does not bar her suit. The plaintiff in Brown brought suit under the FTCA for damages resulting from negligence in the treatment of his left knee in a VA Hospital. Id., 348 U.S. at 110, 75 S. Ct. at 142. Plaintiff had injured his knee while on active military duty. The VA allegedly negligently treated the knee (by using an apparently defective tourniquet) six years after plaintiff had been honorably discharged from military service. Id.
The Supreme Court in Brown held that the Feres doctrine did not bar suit by the plaintiff. The Court in Brown based its decision, however, upon the fact that the negligent act giving rise to the injury -- application of a defective tourniquet -- was not incident to military service. Id., 348 U.S. at 113, 75 S. Ct. at 144.
Unlike in Brown, in this case Ted Katta's death arose out of the course of his military duty -- specifically, as a result of the PTSD caused by Ted's service in Vietnam. Plaintiff argues that the VA failed properly to diagnose and treat Ted Katta and it was that "negligent act" -- like the defective tourniquet in Brown -- which caused Ted Katta's death. As discussed below, however, the court finds that even if the VA's decisions relating to Mr. Katta were negligent (which the court does not find), plaintiff has failed to prove by a preponderance of the evidence that such negligence proximately caused Mr. Katta's death. Accordingly, the facts of Brown are inapposite here.
Plaintiff also cites Cortez v. United States, 854 F.2d 723 (5th Cir. 1988) in urging that the Feres doctrine does not preclude her suit. Cortez involved a decedent who, because of severe mental disorders, had been placed on the Temporary Disability Retired List -- a military status for servicepersons separated from the Army but whose final status is deferred pending additional medical evidence. Id., 854 F.2d at 724. The decedent in Cortez ultimately was hospitalized in an army medical center, where he was allegedly left unattended in an eighth floor room. Id. The decedent jumped from the window of his hospital room to his death. Id.
The district court granted the government's motion to dismiss pursuant to the Feres doctrine. Id. The Fifth Circuit Court of Appeals reversed, holding that as a matter of law a member of the armed forces carried on the Temporary Disability Retire List is not, as a consequence of that status, prevented by the Feres doctrine from bringing an action under the FTCA. Id., 854 F.2d at 726.
Like Brown, however, Cortez is inapplicable here. The court in Cortez simply held that servicemembers are not barred from recovering from the Government solely by virtue of being placed on the Temporary Disability Retired List. Indeed, because Cortez involved reversal of a grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court in Cortez never reached the issue of whether decedent's death in fact arose out of activity incident to service, as Ted Katta's did. It was also unclear whether the hospital's alleged negligence was the proximate cause of decedent's death. Accordingly, Cortez is unhelpful in resolving the issues of this case.
The lesson of Brown and its progeny is that when the injury for which a serviceperson brings suit occurs after discharge, when the serviceperson is no longer on active duty or subject to military discipline, a suit for damages resulting from that injury is not necessarily barred by the Feres doctrine. Brown, 348 U.S. at 112, 75 S. Ct. at 143. In this case, however, the relevant injury is Ted Katta's PTSD -- an injury caused by Ted Katta's combat experiences in Vietnam. Thus, this case is barred by Feres.
The court's holding in Laswell v. Brown, 683 F.2d 261 (8th Cir. 1982), is instructive. Laswell involved a decedent who was exposed to radiation during atomic tests while a serving in the military. After decedent died of Hodgkins Disease, plaintiffs brought suit against the United States. Plaintiffs alleged that the government negligently failed to warn of radiation hazards and failed to treat decedent for radiation exposure. In finding plaintiffs' claim barred by the Feres doctrine, the court in Laswell stated:
In [United States v.] Brown, there was an affirmative negligent action after discharge -- the misuse of the tourniquet. In the case at bar and in Thornwell [v. United States, 471 F. Supp. 344 (D.D.C. 1979)], the wrongful act [exposure to radiation] occurred while the plaintiff was a member of the armed forces. It is only the government's failure to remedy or, with medical treatment, to limit the damage inflicted while the plaintiff was in the service that leads to a claim for relief.
Id. at 267.
As in Laswell, in this case the allegedly wrongful act -- Ted Katta's combat experiences resulting in his PTSD -- occurred while Ted Katta was a member of the armed forces. Although Ted Katta did not kill himself until long after his discharge from the military, his suicide nonetheless resulted from his service-related PTSD. Accordingly, the court finds that the Feres doctrine divests this court of subject matter jurisdiction over plaintiff's claim. Judgment must be entered in favor of defendant.
B. Plaintiff's Failure to Prove Proximate Causation
Even if this court had subject matter jurisdiction over plaintiff's claim, plaintiff has failed to prove by a preponderance of the evidence that the VA's alleged negligence proximately caused Ted Katta's death.
To establish medical malpractice by the VA, plaintiff must prove the following: (1) the standard of care by which the physician's treatment is measured; (2) a deviation from that standard; and (3) that the deviation proximately caused the plaintiff's injury. Ramos v. Pyati, 179 Ill. App. 3d 214, 534 N.E.2d 472, 475, 128 Ill. Dec. 290 (1st Dist. 1989).
The court finds that plaintiff has failed to prove the third essential element of her claim -- that the VA's alleged negligence proximately caused Ted Katta's death. Accordingly, the court need not discuss at length the issue of whether the VA's conduct deviated from the standard of care. Nonetheless, because the court believes that the VA's decisions relating to Ted Katta were not negligent, a brief discussion of the issue of negligence is warranted.
1. Alleged Negligence
Plaintiff asserts several bases for her conclusion that the VA was negligent in treating (and failing to treat) her son. Specifically, plaintiff argues that the VA was negligent because:
(1) Dr. Munas allegedly examined Ted Katta for only fifteen minutes on November 30, 1984 before deciding to reduce his medication and release him;
(2) Dr. Munas reduced Ted Katta's medication, Mellaril, from 600 to 400 mg. a day on November 30, 1984;