True or false: The United States’ military personnel have the same rights as convicted felons when injured by medical malpractice.
False. Our soldiers are not afforded the same rights that we extend to our nation’s imprisoned felons – and the outdated Feres Doctrine is to blame.
Soldiers injured through the negligence of military doctors are prevented from successfully suing the government by the Feres Doctrine. This doctrine stems from three separate court cases decided by the U.S. Supreme Court in 1950 over the Federal Tort Claims Act. The doctrine prohibits damages from being recovered from the government in cases of battle injuries and medical malpractice alike.
The Feres Doctrine makes sense in a battlefield context: The government should not be liable in a lawsuit for mistakes made by a battlefield medic or a surgeon operating out of a tent a mile behind the front line of battle. Civil lawsuits don’t provide a sensible, practical solution to mistakes in that setting.
But the Feres Doctrine makes no sense outside the battlefield context — where most soldiers get most of their medical care. When a soldier gets an appendix removed state-side, during peacetime, there’s no better reason to let the government escape liability for negligently harming that soldier, than there would be to give a civilian hospital a free pass to perform surgery negligently on a civilian. But the Feres Doctrine does just that — it excuses negligent medical treatment.
For example, in 2014 a Navy lieutenant gave birth to her first child in a Naval hospital in Washington. Four hours later, the new mother died after losing more than a third of her blood to post-partum hemorrhaging. Because she was a soldier under the care of a military hospital, her husband, Walter Daniel, was unable to raise a claim for medical malpractice or negligence.
Rather than complacently accept the doctrine as law, he set out to change it.
Daniel v. United States was distributed to the United States Supreme Court for conference this past March, marking a significant step to a possible overturn of the nearly-70-year old Feres Doctrine.
As Lloyd Bell says, “The Doctrine inflicts injustice on military personnel. It says U.S. military personnel can be harmed by medical negligence with impunity. It protects sloppy medical providers at the cost of soldiers. It says that soldiers are second class citizens — not entitled even to the same rights of a prisoner harmed by medical negligence in a prison hospital.”
In addition to potential review by the Supreme Court, the Feres Doctrine has provoked attention by Congress. The U.S. Congress has introduced legislation that would allow service members and their families to sue the government, in certain cases, when a member of the military is a victim of military medical malpractice.
According to Bell, “Congress should modify the Federal Tort Claims Act to confine government immunity to its proper battlefield setting. Hopefully, the Supreme Court will do its part, but Congress should act as well.”
Bell Law Firm is monitoring the Supreme Court and Congressional advancements closely and looks forward to a potential revisit to the doctrine.
For more thoughts from Lloyd about the doctrine, head to Military.com