Most Americans are protected from medical negligence through a combination of state statutes and common law. These laws require doctors to provide a specific standard of care at the same level of care any other reasonable doctor in their position would provide, thus protecting patients from uneducated or careless decisions by their doctors.
One group of people in the US doesn’t share these rights: the military. The nearly 1.4 million active duty military personnel in the country are barred from holding government doctors responsible for medical injuries. Feres v. United States— decided by the Supreme Court in 1950— ruled that under the Federal Tort Claims Act the United States is not liable for injuries to military personnel that were sustained while on active duty and that resulted from harm done by others in the armed forces.
This not only means that active duty military personnel are left without legal recourse for doctors’ negligence, but also means that their families face increased difficulties in filing malpractice cases.
Military doctors treat more than the armed forces, they also treat over two million civilians including the families of service members, retired services members, and many others. These groups are legally allowed to file malpractice claims they face unusual barriers. Investigations at military hospitals are kept confidential, and results of investigations surrounding malpractice claims are kept secret from those who can file the claims.
According to an article by the New York Times, the Army controls most of the military’s hospitals and treats four civilians for every one active duty service member. But this 1:4 ratio was not reflected in a study that found that between the years 2003 and 2013 the Army reported 50 times as many medical professionals for malpractice cases with civilians as with active duty service members.
Between those same years, the Amy did not report any clinicians treating active duty service members for malpractice, though there were over 250,000 hospitalizations.
The spouses and children of active military service members and retired military personnel who can file claims face a much more difficult case than the average American. Cases that are filed for harm done on US soil allow the government as long as six months to investigate or deny the claim, which usually prompts additional legal actions by the plaintiffs. If the medical injury occurred overseas and the military denies the claim, lawsuits cannot be filed and plaintiffs face very limited appeal options.
This is a legal battle that is ongoing both for active duty military service members and for their families and others who are allowed the few legal rights. One recent controversial case is Ortiz v. United States, ex rel. Evans Army Community HospitalHospital .
Captain Heather Ortiz experienced a sudden blood pressure drop while in the hospital preparing for a C-section. Her baby suffered fetal distress and severe brain damage. The most recent conclusion to the case ruled that the baby’s injuries were a result of the mother’s injuries. She was an active duty service member at the time, so the government cannot be held liable for damages to the baby.
This case is currently under petition, legal professionals have filed amicus briefs to the Supreme Court urging the justices to take on the issues Feres v. United States started in 1950. For now, it is important for both active duty service members and for their spouses, children, retired service members, and any other people treated at military hospitals to know their rights.