The Fight to Hold the Military Accountable for Medical Malpractice

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The Fight to Hold the Military Accountable for Medical Malpractice

January 15, 2019
By jhartle@lgslaw.net

The Feres Doctrine is an injustice that has limited the ability of military service members to bring medical malpractice claims for years. Established in 1950 by the U.S. Supreme Court, in the Feres case, the Court dismissed a lawsuit brought by the widow of an Army Lt. who died due to the Army’s negligence, ruling that the federal government could not be held liable for injuries incurred by members of the armed forces relating to their military service. In other words, the Doctrine currently prohibits troops and their families from suing, even if the injury or death was brought on by their service, and it has adversely affected the ability of service members and their families to obtain justice for serious medical negligence issues.

The original reasoning behind the ruling was that disability compensation and life insurance payments already provided enough compensation for military personnel and their families for any injuries or death, and opening up the military to lawsuits, in general, might invite too much uncertainty of command decisions in the courts.

Open to Challenge

However, many would argue that this interpretation under the Federal Tort Claims Act does not actually have any support in the legislative language itself. Not only has the Doctrine been long criticized by advocates, judges, lawmakers, and veterans, the late Supreme Court Justice Antonin Scalia noted that the Feres ruling was wrong and warranted all the criticism it received. This potentially leaves it open to be challenged by Congress itself (via passing a new law or an amendment to the original law), or through a new decision by the U.S. Supreme Court, which would overturn the 1950 decision.

A number of soldiers who have suffered due to medical negligence in military hospitals have been affected by this Doctrine and are now seeking justice in the courts, in spite of the Feres Doctrine.

In addition, a petition for certiorari was recently filed with the U.S. Supreme Court asking it to take up the Doctrine and correct it. The petition involves a military service member who went into a military hospital for low-risk childbirth and died mysteriously afterward. According to the 9th Circuit Court of Appeals, it is an example of a case to carve out an exception to Feres, especially since childbirth is arguably outside of activities that are “incident to service.” The Court has not yet decided if it will hear the case.

Contact Our Ohio Medical Malpractice Attorneys for a Free Consultation

If you or a loved one has suffered due to a doctor or health care professional’s mistake, you may be able to file a claim and obtain justice in court. Contact our Toledo, Ohio medical malpractice attorneys today to find out how we can help.










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