way related to Mr. O'Neill's eyesight deficiency.
The Feres doctrine is fully applicable to the present factual situation. Feres has been applied in several cases where negligence was alleged for failing to determine a physically disqualifying condition at a pre-induction medical examination, followed by a post-induction aggravation of such condition by reason of military service.
Joseph v. United States, 505 F.2d 525 (7th Cir. 1974), involved alleged negligence in discovering disqualifying flat feet, with a post-induction aggravation. The soldier was, as in the present case, discharged pursuant to AR 635-200, para. 5-9.1. The complaint was dismissed because the injuries for which damages were sought occurred while the plaintiff was in the service. A similar result was reached in Healy v. United States, 192 F. Supp. 325 (S.D.N.Y.), aff'd 295 F.2d 958 (2d Cir. 1961), involving aggravation of a pre-existing medically disqualifying heart condition. In Redmond v. United States, 331 F. Supp. 1222 (N.D. Ill., 1971), the plaintiff raised a contention that a fatal brain tumor was not determined prior to induction. The court dismissed the action, holding that negligence in the pre-induction medical was inseparably intertwined with active military service. The Seventh Circuit in Joseph v. United States, supra at 526, fn. 1, seriously questioned this rationale, but not the result. However, the Redmond rationale was followed in Kilduff v. United States, 248 F. Supp. 310 (E.D. Va. 1961), wherein the physical examinations both prior to and shortly after service were held to be a step in his [the soldier's] entry and exit, but nevertheless an event of his service."
Moreover, applying United States v. Brown, 348 U.S. 110, 99 L. Ed. 139, 75 S. Ct. 141 (1954), wherein the Court further defined the distinction drawn in Feres to cases where the injuries arose out of or in the course of military duty to the present case, the alleged malpractice and failure to disclose or advise plaintiff of the spreading cancer occurred while on active duty and arose out of such military duty. See, also, Glorioso v. United States, 331 F. Supp. 1, 2, fn. 3 (N.D. Miss. 1971), and cases cited therein.
It is unnecessary to decide whether a proper claim was presented administratively within the statutory period; and whether the "foreign country" exception of the Federal Torts Claim Act is applicable to the surgery performed in West Germany, both of which are additional grounds asserted by defendants in substantiation of the motion for summary judgment.
AND NOW, this 2nd day of June 1975, defendant's motion for summary judgment is GRANTED and plaintiff's motion for summary judgment is DENIED.
Judgment is hereby entered in favor of defendant and against the plaintiff on plaintiff's complaint.
BY THE COURT:
Donald W. VanArtsdalen / J.