The Feres Doctrine and Birth Injury

Military Medical Malpractice Laws Can Make Justice for Birth Injuries Harder to Obtain

Military_Health_System The servicemen and women of the United States place themselves at great risk when they enlist in one of the United States’ many armed services divisions, be it the Army, Navy, Marines or other organizations. As servicemembers, they can (and indeed are required to) receive care from military medical institutions. While generally, this allows our valued service members to obtain necessary care, there are certain situations where they are not receiving the quality care they deserve. When this happens, they can become injured. One controversial ruling called the Feres Doctrine (which is part of the Federal Tort Claims Act, or FTCA) states that active service members cannot sue their care providers – a ruling that prevents justice from being carried out appropriately.

In 2014, the New York Times featured an article that decried the state of medical malpractice in military hospitals, finding that infants born in military hospitals were twice as likely to be injured at birth than in civilian hospitals, and their mothers were more likely to have massive bleeding after birth as well. Internal reports in 2011 from the Pentagon stated that the harm rate in military hospitals was simply “unknown.” Policies in place intended to determine the root causes of medical malpractice are rarely carried out – routinely, less than half of root cause analyses (RCAs) are forwarded to the Pentagon’s patient safety center, a program designed specifically to handle these investigations.

These statistics are alarming for those giving birth in military hospitals. A sampling of the findings show:

  • Mothers in military hospitals were about 15% likelier to be injured if doctors used instruments during delivery (such as forceps or vacuum extractors)
  • Between 2009-2011, five out of every thousand babies experienced birth trauma. This adds up to a total of 239 babies injured by pregnancy, labor, delivery and neonatal complications and medical errors; if military hospitals met the national average of injury rates, only 107 infants (less than half) of this sum would have been injured.
  • Furthermore, between 2009-2011, the rate of injury for babies born at military hospitals was twice the national average (taking into account injuries ranging from cut scalps to brain bleeds).

The Feres Doctrine Bars Medical Malpractice Lawsuits and Undermines Accountability

Shortly after 33-year-old Navy Lieutenant Rebekah Moani Daniels gave birth at Naval Hospital Bremerton, she died of a hemorrhage which medical staff improperly handled. In a normal civilian hospital, this would have left her family with legal options such as a wrongful death lawsuit, but in the military setting, her active duty membership barred her family from suing the doctors responsible for her death, even in an incident the medical community dubs a ‘never event’ – an egregious medical error that should never occur. Maternal death by blood loss in childbirth is one of these events.

The original purpose of the Feres doctrine, the result of a U.S. Supreme Court decision from 1950, was to prevent lawsuits stemming from injuries sustained during combat, training and other activities that are part of military service, injuries that are classified as ‘incident to service’. However, the doctrine wrongfully protects military hospitals and medical staff from malpractice claims, which are key tools in ensuring accountability in medical practice. It is indisputable that injuries sustained during combat are indeed ‘incident to service,’ but injuries from medical staff during, for example, labor and delivery, should not be considered injuries ‘incident to service.’ The doctrine strips servicemember families of their ability to provide for their children’s care.

Recent Birth Injury Cases in Military Hospitals Bring Up Questions Regarding Military Immunity to Medical Malpractice

In 2009, Captain Heather Ortiz, an active-duty member of the U.S. Air Force, was admitted to a military hospital to deliver her baby by C-section. Medical staff at the hospital committed errors that caused her blood pressure to drop dangerously low, and, as a result, her baby became oxygen-deprived and will require life-long care for severe brain damage. The 10th Circuit Court of Appeals reluctantly denied Ortiz and her daughter redress, writing: “To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but [The Feres Doctrine] is not ours to overrule.” If Captain Ortiz had been a civilian wife of a serviceman, Feres immunity wouldn’t apply, and she would have been able to secure justice for her child. As an active-duty servicemember, however, that legal path is barred to her, because her daughter’s “…in utero injuries are unmistakably derivative of an injury to her mother.”

The Ortizes filed a petition to the U.S. Supreme Court in October 2015 to consider their case; the chances of the Supreme Court accepting the case for consideration were fewer than 5%, but it was still possible. However, in June 2016, the Justice Department offered to settle. The settlement will be forthcoming, pending approval by the court and a 3rd party that will decide whether the agreement is in the child’s best interests. If the case settles, the Supreme Court will not take on the case. Ortiz’s attorney, however, states that she believe that the Feres doctrine’s applicability to military medical malpractice will resurface time and again: “If the Department of Justice continues to file motions to dismiss claims of children of military mothers, we will be raising this issue again. I have a couple of birth injury cases where the mother was active duty, so I suppose we will find out.”

Legal Help for Birth Injury in Military Medical Malpractice Cases

Although active members of the military cannot sue the government for military medical malpractice, in many cases, their spouses and dependents can. Pursuing a military medical malpractice case, however, takes a background in military medical malpractice. Please reach out to the birth injury attorneys at Reiter & Walsh ABC Law Centers if your baby had a birth injury at a military medical facility. We focus only on birth injuries, and our firm’s knowledge includes FTCA medical malpractice, including a $21 million verdict for a child injured due to negligent care at a federal clinic. We would be happy to help you understand what happened to your baby during pregnancy, labor or delivery. Please reach out to us for a free and confidential case evaluation 24/7 by phone at 888-419-2229, live chat, or via contact form.


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