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Feres Doctrine Anything but Fair to Servicemembers

Posted Monday, May 27, 2019 by Tyler Goldberg-Hoss

On this Memorial Day, it is obvious that we take time to remember and honor those men and women who have died while protecting our country.

It is also a good time to reflect on a law which continues to single out these same men and women for unfair treatment when they are injured as a result of the negligence of other enlisted personnel. This law is called the Feres Doctrine, and it needs to be changed.

The Doctrine was created in part to avoid litigating military decisions in civilian courts. However, in practice it prevents much more than that. In the context of medical care, it prevents patients from bringing claims of medical negligence involving care at Naval Hospitals such as the one in Bremerton.

We have written about the Feres Doctrine nearly three years ago in the context of the case of Rebekah Daniel.

Ms. Daniel was active duty when she delivered a healthy daughter at the Naval Hospital. Unfortunately, doctors allegedly failed to stop her from bleeding, and she died.

A local attorney attempted to bring her claim, knowing the odds were long because success would mean changing this long-standing rule. Recently, the Supreme Court denied the family’s petition to have her case heard.

This case has nothing to do with allowing a Court to determine whether some military decision in the field of battle negligently caused a servicewoman to die. It has to do with allegations of medical negligence causing Ms. Daniel her life. If she were not enlisted, her family could have brought her claim on behalf of her surviving husband and daughter. That would have allowed for the court system to properly weigh the allegations, and if negligence was committed, to properly compensate the family for the terrible harm it caused.

This would have further acted as a deterrent for future care at the Naval Hospital, hopefully contributing to a safer hospital and society for all of us.

But because of the Feres Doctrine, none of that will happen.

You can read more about the history of this legal case, what justices may have been willing to scrap the Doctrine, and other ways the rule may be changed here:

U.S. Supreme Court declines to hear medical malpractice case for death at Bremerton military hospital

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