Lack of accountability has been the hallmark of DoD's Anthrax Vaccine Immunization Program. In May 1999 the Army's top immunologist exhorted colleagues against continuing anthrax shots in cases of a clear contraindication. Unfortunately, there are still current examples of service members who developed significant and unresolved health complications after receiving anthrax shots and who now are being told they must risk worsening their conditions by taking the shot again. The AVIP was touted as a "Commander's Program" that forced line officers to play doctor. However, five years later most commanders and many military health professionals are still unaware of Army medical guidance on identifying and screening out individuals at risk for reactions. Thus, commanders are forcing some service members to jeopardize their health, and the Pentagon's Health Privacy regulation could allow such actions to go uninvestigated and unpunished.

The Feres Doctrine Shields DoD from Liability for Medical Malpractice and Related Cover-Ups. Pentagon memos obtained by Congressional investigation of the anthrax vaccine program revealed statements that the Feres Doctrine did not apply when care standards were not met. This reality was best exemplified by the 2001 conviction of the Army anesthesiologist who caused the death of a Marine colonel's daughter. For this malpractice and related Army cover up, the doctor was court-martialed only due to the intervention of the Commandant of the Marine Corps. The doctor was sentenced to dismissal from the service, and is still licensed to practice medicine. The Marine colonel whose daughter died expressed hopes through his attorney that "no military family will have to strain, struggle and suffer as they did in order to learn what medical care was actually provided to a family member at a military medical facility."

DoD must revisit its Health Privacy Regulation and ensure that the restriction on medical record access is adjusted to comply fully with PL 105-85 intentions to improve future access to medical records for service members and those who need to know.

Recommendations

1. Congress should send a letter from the subcommittee to the Secretary of Defense insisting on immediate full compliance with health monitoring requirements of Public Law 105-85 and identifying accountability consequences.

2. Service members should be given a copy of the manufacturer package insert for each immunization and pharmaceutical they receive so they can know what reactions to look for.

3. Military doctors, nurses and corpsmen should all be given continuing education on the 26page guidance written by Engler, Pittman and Grabenstein on when to waive vaccines for those at risk of severe reactions.

4. The Subcommittee should communicate to DoD and introduce legislation, if appropriate, that assures the right of military patients and their family members to obtain complete and unhindered access to their medical records.

Further Considerations Regarding Inadequate Force Health Protection Impacts on the Department of Veterans Affairs

The need for the DoD to adhere to Public Law 105-85 is even more important given that the Veterans Administration (VA) increasing patient workloads, under-funding, and continuing disconnects between DoD and VA health information systems. As with Gulf War I, the VA will shoulder the burden of learning about mystery illnesses from toxic battlefield exposures and/or from force health protection drugs and vaccines. To illustrate the challenges already faced by the VA, I have attached charts presented last week by the Vietnam Veterans of America to the House and Senate Veterans' Affairs Committees.

Given these VA challenges, Congress must force DoD to make it easier for service members to trace potential ailments to deployment events rather than stand in the way of accurate diagnosis and effective treatments as has been done with veterans from the first Gulf War. Complying with the requirements of Public Law 105-85 is simply the right Pentagon policy to maintain the trust of service members and their families.

Conclusion

Effective Force Health Protection measures should be characterized by the following:

A) They should not be "FORCED"

B) They should enhance service member HEALTH before and after deployment, and not unnecessarily risk their health

C) They should be designed to offer PROTECTION for service members, not protection for military medical clinicians responsible for questionable health policies and practices

Public Law 105-85 meets these criteria except for experimentation allowances, and it is my hope that service members will benefit from DoD's full implementation of the provisions of this law.

Mr. Chairman, I again thank you for the privilege of submitting this statement. I hope the committee finds the analysis useful, and I stand ready to assist in further efforts to improve health care management for fellow citizens in the armed forces.