There has been 70 years of judicial hand wringing following what has become a national disgrace in the aftermath of the 1950 Supreme Court decision of Feres v United States. Feres itself suggested Congressional action to address the ambiguities in the Federal Tort Claims Act giving rise to its decision.
For over for over 70 years, Congress has done nothing while the courts despite the hand wringing have delivered one unjust and devastating decision after another. The country’s active military deserve better. Our military deserves basic patient rights but they have none. The scope and injustice of Feres is best illustrated by a very recent opinion from the 10th Circuit Court of Appeals
Most Recent Unjust and Absurd Outcome Resulting from Feres
What would you say to this?
- A Female Captain in the military goes in for routine childbirth.
- Gross medical negligence with one inexcusable error after another results in oxygen deprivation to the child.
- The negligent medical care results in very serious and permanent harm to the baby.
- The case is dismissed immediately at summary judgment due to the 1950 Supreme Court opinion that has received near universal condemnation.
Is the mother/Captain entitled to answers on what happened and what went wrong? Should the baby receive fair compensation from the military for the horrible and permanent injuries resulting from the negligent medical care? If you said yes on either count, you would be wrong.
Why? Because apparently a routine childbirth in a military hospital somehow invokes chain of command and disciplinary issues. Read on to appreciate the absurdity and injustice in the logic and the outcome.
The Root of Injustice to Servicemembers: Feres v. United States
The 1950 Supreme Court opinion in Feres v. United States set the stage for 75 years of injustice to our military. The opinion states in short that the Federal Tort Claims Act which allows suits against the federal government does not allow suits against the military by active military personnel. There is in fact nothing in the Federal Tort Claims Act that would dictate that.
There are two primary bases for the decision, the expanse of Feres, and the continuing and accelerating denial of basic rights to servicemembers:
1. The court then and the courts today still view it as a chain of command/discipline issue.
2. The court also suggested that active military receive adequate compensation through military and veteran benefits which was as untrue then as it is today.
Chain of Command and Military Discipline is a Nonsensical Argument in Routine Medical Care
In the fact scenario set forth in the beginning, it would be difficult to come up with any logical basis for arguing that a routine pregnancy and delivery somehow invokes chain of command. Moreover, military doctors have absolutely nothing to do with military decisions. They are doctors there to serve military personnel with their medical needs. That is it.
The Feres Doctrine may make some sense in situations involving battlefield injuries and treatment. It makes no sense when dealing with routine medical care. There is no reason why military personnel should not expect competent medical care just as any other American has a right to do. Active military should have at least as many rights as other patients allowing them to seek answers and hold medical providers accountable for harm caused by medical malpractice just as any other patient.
Availability of Full Compensation Elsewhere Was a Flawed Argument in 1950 and Remains So Today
Feres likens the benefits to injured active military to workers’ compensation benefits. The suggestion is that these benefits are sufficient. The comparison is silly in routine medical care and never sillier than in the case in point.
To begin, workers’ compensation statutes are an atrocity in themselves with respect to worker rights. They are geared toward protecting negligent employers even in cases of gross negligene, not injured employees.
The same holds with the rationales underlying Feres. Workers’ Compensation benefits received are grossly inadequate to compensate a worker who has suffered serious injuries or the family when the worker is killed just as they are to military personnel seriously harmed by medical negligence.
More to the point however is the fact that under no workers’ compensation statute are negligent doctors protected from their own medical negligence. If they commit medical malpractice, they may be held responsible just as any other medical provider.
Hand Wringing by the Courts over the Years to Little Avail
The constant hand wringing by the courts is evidenced in a recent 10th Circuit Court of Appeals opinion. To gain the appropriate sense of outrage, one should read the opinion. The hypothetical set forth in the beginning is the factual situation addressed by the Court in that case.
Let’s begin with the quote that illustrates the rather impotent hand wringing of the courts: “Suffice it to say that when a court is forced to apply the Feres doctrine, it frequently does so with a degree of regret.”
The problem arises from the language in Feres regarding “incident to service.” Active military cannot file a claim or even learn what happened in medical malpractice cases which are “incident to service’. Remarkably, Feres did not itself define incident to service. It was rather one of those things that you know when you see.
From Feres and the reliance on incident to service, the courts have run wild basically finding that most anything, including childbirth, occurring during military service is incident to service. In fact the 10th itself in the end after all the remorse expressed over the injustice necessitated by Feres lets go the “incident to service” standard and embraces what might be construed as an even broader “service-related” standard.
From the service-related standard, they conclude that any injury derivative of military service , including child birth, is beyond the jurisction of the courts. This reading and many others like it leaves military personnel with no hope for justice.
The Expansive Reach of Feres Covers Even Incidents with Remote Connections to Military Service
The 10th Circuit opinion cites another 10th Circuit case to illustrate the breadth of Feres as now construed:
“In recent years, the Supreme Court has broadened Feres to the point where it now encompasses, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military.”
Drawing from a 9th Circuit Court of Appeals decision in support of the unjust but necessary outcome quoting as follow:
“…we join the many panels of this Court that have criticized the inequitable extension of this doctrine to a range of situations that seem far removed from the doctrine’s original purposes.”
Congress Must Take Action to Protect Our Servicemembers
One footnote from the 10th Circuit case sums up the near universal condemnation of Feres over the years and the failure of Congress to remedy the injustice: the “Feres doctrine has been criticized by ‘countless courts and commentators’ across the jurisprudential spectrum. . . . However, neither Congress nor the Supreme Court has seen fit to reverse course.”
Feres itself suggests that Congress should take action:
“There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the Act, at least Congress possesses a ready remedy.
These considerations, it is said, should persuade us to cast upon Congress, as author of the confusion, the task of qualifying and clarifying its language if the liability here asserted should prove so depleting of the public treasury as the Government fears.”
Demand Fairness and Justice for Military Personnel Harmed by Negligent Medical Care
Military personnel deserve basic patient rights. They deserve the right to answers. They deserve to be justly and fully compensated for harm caused by medical malpractice.
Congress holds the key as stated in Feres itself 75 years ago. Congress has dodged the issue for long enough.