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U.S. Wants To Limit Medical Malpractice Lawsuits by Military Families

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The United States seeks to limit military lawsuits and argues that, regardless of the reason, service personnel and their families should not be allowed to sue for medical malpractice. According to the U.S. Department of Justice, there is no circumstance under which a medical malpractice lawsuit would be allowed, wrote All Gov. As a matter-of-fact, members of the military are typically banned from suing the government, which has been established in a number of lawsuits, specifically a 1950 Supreme Court decision in Feres v. United States, said All Gov. Now, government attorneys are seeking to expand the scope of this lawsuit so that it would become impossible for soldiers’ families to sue the government for medical malpractice if, at the time of the alleged malpractice, the service member involved was on active duty, said All Gov. “This is a whopper of a theory and it immediately raised the hackles of attorneys who practice in this field,” said Andrew Cohen for The Atlantic. “Now, all of sudden, family members of military personnel can’t sue the U.S. for negligence because their loved ones are on active duty?” he added, according to All Gov. Eugene Fidell, an expert in military law at Yale University, explained to the Military Times that the so-called Feres Doctrine was never meant to ensure military hospitals being sued by civilians were protected. Fidell said that “The outcome the government is arguing for is intolerable. If the government wins this motion, Congress has to step in,” All Gov reported. The Feres Doctrine is a general proposition that means that the U.S. cannot be sued monetarily under the Federal Tort Claims Act (FTCA) of 1946 for injuries or death of military personnel on active duty, explained The Atlantic. The proposed expansion of the highly criticized Feres Doctrine will ban many plaintiffs, whose loved ones served the U.S. and who may have suffered the effects of medical malpractice, from exercising their rights to pursue the matter at trial, noted The Atlantic. Worse, Congress has refused for the past 60 years to ensure military personnel and their families can pursue such matters. In 1987, the Feres doctrine was involved in the Supreme Court case United States v. Johnson in which Johnson contested a 5-4 decision from a High Court, noted the Atlantic. In that case, Justice Scalia wrote, “Feres was wrongly decided” and “heartily deserves the widespread, nearly universal criticism it has received,” according to The Atlantic. Feres, which is based on an interpretation of the Tort Claims Act, serves to exempt the government from its accountability for “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. The Supreme Court had no business in Feres, or in Johnson, extending this governmental immunity under the Tort Claims Act,” according to Justice Scalia Years after Justice Scalia’s pronouncement, the basic unfairness of the Feres Doctrine, as it applies to the Tort Claims Act, was the subject of an extensive

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Senate Judiciary Committee hearing. At the time, in 2002, Senator Arlen Specter (Pennsylvania-Republican) led the hearing, saying: “I have introduced legislation to amend the so-called Feres doctrine because it seems to me that the doctrine has produced anomalous results which reflect neither the will of the Congress nor common sense. There have been many examples where a soldier who is the victim of medical malpractice at an Army hospital cannot sue the Government for compensation, but a civilian who suffers the same treatment on an allegation of malpractice would be entitled to recover against the Government. Similarly, if a soldier driving home from work on an Army post is hit by a negligently driven Army truck, that soldier is barred from suing the Government, but a civilian in identical circumstances would not be so barred.”

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