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Feres Doctrine denies access to justice for members of the armed forces injured by the negligence of others in the armed forces

Posted Monday, August 22, 2016 by Alison Harper

Normally, the Federal Tort Claims Act provides an avenue for a plaintiff to sue the federal government for personal injuries caused by government employees or agents. However, the Feres Doctrine, which stems from a 1950 U.S. Supreme Court decision, continues to deny justice and accountability to service members who suffer injuries as a result of the negligence of other enlisted personnel.

The case, Feres v. United States, bars members of the military from suing the government under the FTCA for damages incurred during active duty, even as a result of another service member’s negligence. The Court decided that allowing these types of suits would result in inconsistent rulings because of variations in state law and could jeopardize the relationships between service members and their commanding officers. Additionally, the Court was reluctant to force officers to defend military decisions in civilian courts.

A recent Kitsap Sun article sheds light on this unfortunate gap in our civil justice system. Active duty service member Rebekah Daniel delivered a healthy daughter at the Naval Hospital in Bremerton. However, after giving birth her medical providers were unable to stop bleeding, leading to her death.

Had she not been active duty at the time, and had the alleged negligent medical care not been provided by service personnel, Ms. Daniel’s surviving husband and daughter would have a claim. However, the Feres Doctrine bars troops like Ms. Daniels from suing the government for injuries that are “incidental to service.” That includes claims of medical negligence by government doctors, nurses and other health care providers.

Because of this, the doctrine has resulted in the dismissal of cases alleging serious malpractice in such mundane situations as routine appendectomies or even childbirth. Supporters of the doctrine maintain that the Veterans Affairs Department’s system of disability benefits and compensation would sufficiently redress any injuries. Opponents argue that the monetary compensation is not on par with what would be available to a civilian in the same position. More importantly, they feel that there is no accountability for the mistakes or negligence of military doctors.

The Feres Doctrine not only bars families of service members from filing wrongful death or loss of consortium claims (like Daniel’s surviving spouse and daughter) when a service member is killed, but it also bars service members from recovering damages from the US Government for personal injuries experienced while in the performance of their duties. The bar does not extend to killed or injured family members of service members, so the spouse or child of a service member may still sue the US for injuries.

In the past ten years, the Supreme Court has declined to hear at least two cases questioning the application of the Feres Doctrine to medical malpractice suits. Federal Appellate Courts are therefore obligated to apply the rule in its current form. Even as one 10th Circuit Judge recently characterized the doctrine as overbroad and unfair, he acknowledged that “Feres is not ours to overrule.” However, another appeal on this same issue is currently pending with the Supreme Court, and, if the Court decides to hear the case, the doctrine could be reconsidered for the first time in almost 30 years. Critics of the rule hope that it will be narrowed to exclude medical malpractice and allow recovery for injured service members.

Because of this bar, government medical providers are not held accountable for their negligent actions. Without accountability, there is less incentive for future health care to be safer, which puts future service member / patients at increased risk.

You can read the full Kitsap Sun article here:

Husband of Navy nurse sues over her death

Other sources for this blog post can be found here:

Tragedy and injustice: The heartbreaking truth about military medical malpractice

Military Medical Malpractice

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