The men and women who serve in our armed forces take an extraordinary risk in order to keep our country safe. This week, members of Congress are considering legislation that would permit members of the armed forces to bring about medical malpractice claims for negligence suffered during service, a remedy not currently available to our troops, veterans, and/or their families.
The inability to bring a medical malpractice suit stems from the Feres Doctrine. In Feres v United States, the Supreme Court ruled that servicemen who suffered injuries after picking up highly radioactive weapons fragments from an airplane crash were not permitted to recover damages from the government. As a result, the Feres Doctrine (or Feres Rule) was established: the federal government is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty, on furlough, or resulting from the negligence of others in the armed forces.
“Negligence of others in the armed forces” currently extends to the negligence of military doctors and other healthcare personnel, even when that negligence could cause illness, injury, or death.
This spring, Representatives from the House of Congress introduced legislation that would allow limited exemptions to the Feres Doctrine to permit lawsuits against the Defense Department by troops and their families in cases of extreme medical neglect or abuse.
Opponents from the Department of Defense claim that permitting these types of claims would upset the current military compensation and benefits system and could result in “an explosion” of frivolous cases against the military. Proponents argue that the current system discourages improvements in the military health system and deprives our troops of justice when they are the victims of malpractice.
The Supreme Court had the opportunity to weigh in on Feres earlier this year. The widower of a Navy lieutenant sought to overturn the rule in a wrongful death case against the federal government after his wife bled to death during childbirth at Naval Hospital Bremerton in 2014. The Ninth Circuit Court of Appeals upheld a district court dismissal of the case, which was then brought to the nation’s highest court. In May, SCOTUS declined to hear the case, though Justice Ginsburg indicated she would have granted a hearing and Justice Clarence Thomas issued a strongly worded dissent: “Such unfortunate repercussions – denial of relief to military personnel and distortions of other areas of law to compensate – will continue to ripple through our jurisprudence as long as the court refuses to consider Feres.”
Those who support permitting service members to bring such claims must now look to the legislative branch to take action.