Not much remains of the old English doctrine that the king can do no wrong, but the little that remains may be tested next term in the Supreme Court.
Two widely different cases are pending on petitions for review. One case involves poisoned grapes that probably weren't poisoned. The other involves a hernia operation that went wrong. Both cases arise under the Federal Tort Claims Act of 1946, and both cry out for the top court's review.In March 1989, an anonymous caller telephoned the U.S. Embassy in Santiago, Chile, and delivered an ominous warning: Chilean fruit exported to the United States had been injected with cyanide. The Food and Drug Administration at once put a hold on a cargo of Chilean grapes arriving in Philadelphia. An inspector found two grapes that contained puncture holes and a third that had been oddly split open.
On a Sunday afternoon, March 12, laboratory technicians made a macerated solution from the two punctured grapes. Their test showed a high concentration of cyanide. Later in the afternoon, the FDA flew samples of the solution to its lab in Cincinnati.
A little after midnight, the Cincinnati lab telephoned a vastly different report: It could find no trace of cyanide whatever.
Nevertheless, on Monday the 13th, the FDA cracked down. It prohibited further imports of Chilean fruit; it demanded the destruction of all Chilean fruit in the distribution process; and it urged grocers and consumers to destroy all Chilean fruit on hand.
Evidence subsequently emerged that the Philadelphia lab had botched the test. The cyanide contamination may have come from the lab itself. In any event, technicians had failed to follow required test procedures. The FDA had taken its drastic action without confirmation of any sort.
The economic effect in Chile was catastrophic. The suit against the U.S. government, brought by 2,400 Chilean growers and exporters, seeks $210 million in damages.
In the case of the Chilean grapes, the issue involves what is known as the discretionary clause in the Tort Claims Act. The clause grants immunity to federal officials who cause harm while performing a "discretionary function or duty."
The plaintiffs agree that the embargo was a discretionary act, but the botched laboratory test was not - and the Philadelphia lab's unconfirmed report was the proximate cause of the disaster. Question: Under these circumstances, may the U.S. government be sued?
The second pending case is not so complex. David Hayes, an enlisted man in the U.S. Army, elected to have an operation to repair a hernia. An Army surgeon at Fort Polk, La., accidently severed a main artery. Hayes died, leaving a young wife and two children. In civilian life, his widow plainly would have a suit for malpractice, but because Hayes was on active duty in the military, the federal courts have dismissed her claim.
Though the two cases arise under different sections of the 1946 act, they both are rooted in the old English doctrine. A sovereign may not be sued without the sovereign's consent.
The first major suit under the 1946 law arose from the Texas City disaster of April 15, 1947. A ship containing 800 tons of government-made fertilizer exploded. Nearly 600 persons died and 3,000 were injured. Dividing 4-3, the Supreme Court in 1953 found no federal liability.
Everyone agrees that servicemen cannot sue for death or injury in combat; top officials clearly have to be immune from the consequences of purely discretionary actions. But when federal technicians bungle a lab test, or an Army surgeon severs a main artery, the king has done wrong. Let the king pay.