The ‘Feres doctrine’ prohibits military personnel from pursuing medical malpractice lawsuits against government practitioners. A proposed amendment could change that.

Rebekah “Moani” Daniel was a labor and delivery nurse at the Naval Hospital Bremerton. When it came time to give birth herself, she arranged to do so at that same military hospital. Shockingly, the 33-year-old servicemember bled to death shortly after delivering her daughter, Victoria. 

Her husband, U.S. Coast Guard Lt. Commander Walter Daniel, believed the postpartum hemorrhaging which caused her death could have been prevented if staff had followed standards of care (defined as what reasonably competent medical professionals would have done if placed in that situation).

Supreme court building

Supreme Court building

However, he was unable to pursue a medical malpractice lawsuit because of a 1950 Supreme Court ruling called the Feres Doctrine, which is an exception to the Federal Tort Claims Act (FTCA).

The FTCA allows people such as veterans and military spouses to sue the federal government for acts of malpractice committed in military-run hospitals (it also enables family members to sue on their behalf, for example in the case of wrongful death). However, under the Feres Doctrine, “active duty” military services members cannot sue for their own injuries, nor can family members sue on their behalf (1). There is a certain degree of risk inherent to military service, and the Feres Doctrine aims to prevent claims based on injuries or harm that occurs “in the course of activity incident to service.” However, it has since been interpreted very broadly, and has prevented legal recourse for active-duty service members, even when the care they were receiving was routine/had nothing to do with a military injury (2, 3). Since Rebekah was employed by a military hospital at the time of her death, she was considered active duty, and therefore her husband could not sue on her behalf.

The Feres Doctrine has been widely criticized; many see it as a justification for flagrant acts of negligence. As put in a Change.org petition, signed by over 100,000 people, “Why should soldiers be denied recourse just because they are on active duty if they are injured or killed while getting ordinary (non-combat-related) medical care?” The petition goes on to state that, “Without a change, military hospitals have no incentive to improve their practices and discharge unqualified doctors” (4).

Lt. Commander Daniel felt similarly, and asked the Supreme Court to consider his wife’s wrongful death case. In the petition, his lawyer (Andrew Hoyal) emphasized that Rebekah Daniel’s death was simply the result of inadequate medical care, and not related to military combat or other job-related hazards. Nevertheless, the Supreme Court declined to hear it (5).

Daniel expressed his disappointment, saying,“Sadly, the justice system remains closed to our family, our colleagues, and the families who commit their lives to military service. Victoria and I won’t have the opportunity to learn what led to Moani’s [Rebekah’s] death, and to ensure others don’t experience the same tragedy” (2).

The answer may lie with Congress

Although the Supreme Court has refused to reconsider the Feres Doctrine, there is still hope for change. Both the House of Representatives and the Senate are considering legislation that would enable active duty personnel to sue for malpractice (or for family members to do so on their behalf).

Representative Jackie Speier, D-California, introduced the “Sgt. First Class (SFC) Richard Stayskal Military Medical Accountability Act” to the House in April. This bill is named after a veteran who has terminal cancer. Even though military doctors found a mass in Stayskal’s lung, they failed to inform him, and now it is too late for him to receive life-saving treatment (1). (The last bill to challenge Feres’ role in medical malpractice involved a similar case; the 2010 “Carmelo Rodriguez Military Medical Malpractice Accountability Act,” was named for a Marine sergeant who died from melanoma after doctors diagnosed it but failed to inform him [6].)

You can follow the progress of the SFC Richard Stayskal Military Medical Accountability Act here.

Senator John Kennedy, R-Louisiana has also introduced an amendment (to a proposed defense policy bill) that would also overturn the prohibition on malpractice suits (1, 6). Under his amendment, military personnel and family members could sue, so long as the care they received was not in a combat zone, a field facility, or a battalion aid station. 

Related reading

To learn more about the Feres Doctrine and the Federal Tort Claims Act (FTCA), particularly as they relate to birth injury litigation (our malpractice firm’s area of focus), check out the following pages:

About ABC Law Centers

ABC Law Centers was established to focus exclusively on birth injury cases. A “birth injury” is any type of harm to a baby that occurs just before, during, or after birth. This includes issues such as oxygen deprivation, infection, and trauma. While some children with birth injuries make a complete recovery, others develop lifelong conditions such as cerebral palsy and intellectual disabilities.

If a birth injury/subsequent disability could have been prevented with proper care, then it constitutes medical malpractice. Settlements from birth injury cases can cover the costs of lifelong treatment, care, educational resources, and more.

If you believe you may have a birth injury case for your child, please contact us today to learn more. We are happy to talk to you free of any obligation or charge. In fact, clients pay nothing throughout the entire legal process unless we win.

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Sources

  1. Service members may soon be able to sue the government for medical malpractice. (2019, June 19). Retrieved June 26, 2019, from https://connectingvets.radio.com/articles/feres-doctrine-senator-kennedy-joins-effort-allow-military-sue-malpractice 
  2. Grisales, C. (n.d.). Supreme Court declines to hear case to allow military medical malpractice lawsuits. Retrieved June 26, 2019, from https://www.stripes.com/supreme-court-declines-to-hear-case-to-allow-military-medical-malpractice-lawsuits-1.581863 
  3. Military Medical Malpractice. (n.d.). Retrieved June 26, 2019, from https://www.justia.com/injury/medical-malpractice/military-medical-malpractice/ 
  4. Sign the Petition. (n.d.). Retrieved June 26, 2019, from https://www.change.org/p/support-our-troops-amend-the-feres-doctrine 
  5. Supreme Court refuses to hear challenge to Feres Doctrine, which blocks service member malpractice suits. (2019, May 20). Retrieved June 26, 2019, from https://connectingvets.radio.com/articles/supreme-court-denies-review-feres-doctrine-challenge 
  6. Kime, P. (2019, June 19). The push to finally allow troops to sue the military over medical malpractice just got a major boost in Congress. Retrieved June 26, 2019, from https://taskandpurpose.com/john-kennedy-feres-doctrine-senate-bill 

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  1. Jeffrey Ziegler says:

    Be aware that Feres also protects the US military from legal malpractice by its own incompetent – and many times unethical – military lawyers.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.

    When I asked the top lawyer (then Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar. Lying to your licensing state bar is grounds for permanent disbarment. The state bar clearly acknowledged that the US Army lawyers were wrongfully “protecting” Fitzgerald and if they were not, the state bar would take action.

    I then sued in federal court. It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald since got promoted TWICE as an Army lawyer. Feres was NEVER designed 60 years ago as this kind of “protection.” Today it protects against everything to include corruption, misdeeds, and even cover-ups by US Army lawyers wearing stars on their shoulders.

    Fitzgerald became a prosecutor and sent people to Fort Leavenworth prison for violations LESS than what he is clearly guilty. Lying to the feds is a crime punishable by prison. You don’t believe that? Look at what happened with what Robert Mueller has done in 2018 and 2019.

    Go to the link https://www.facebook.com/people/Feres-Doctrine/100011369043077 and you will see it all.

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