Is Feres Dead?

July 9, 2020

Not quite, but it’s wounded! A 2019 defense spending bill has carved out an important exception to the Feres Doctrine, allowing people to seek compensation for injuries caused by military medical malpractice suffered during active duty military service.

Since the Supreme Court’s 1950 decision in Feres v. United States, the Feres Doctrine has prevented service members who suffer injuries “incident to” military service from successfully suing the federal government under the Federal Tort Claims Act (FTCA) or the Military Claims Act (MCA).  Supporters of the Feres Doctrine argue that civil courts should not be permitted to second-guess military command decisions made in the heat of combat situations. Critics of the Feres Doctrine say that the scope of injuries considered “incident to” military service is far too broad, and the Feres doctrine limits the rights of service members to seek compensation for injuries that have nothing to do with military combat.

Over the years, the Feres Doctrine has been invoked to block service members from filing claims for medical malpractice when they were injured by the negligence of military doctors, even outside of combat situations.  For example, in 2014, Navy Lt. Rebekah Daniel bled to death within hours of childbirth at a Washington state military hospital, but the Feres Doctrine blocked her husband from pursuing a medical malpractice claim—even though his wife’s labor and delivery hardly seemed “incident to” military service.

Recognizing the injustice of outcomes like Lt. Daniel’s, Congress carved out a limited exception to the Feres Doctrine in the National Defense Authorization Act (NDAA) for Fiscal Year 2020, which was signed into law on December 20, 2019.  Section 731 of the NDAA now permits active duty military personnel to file administrative claims for medical malpractice against the U.S. Government based on negligent care given by military medical providers.

Active duty military personnel are still blocked from filing lawsuits, but for the first time since the Feres Doctrine came into effect in 1950, military victims of malpractice may file claims and obtain compensation from U.S. Government for injuries suffered due to the negligence of military doctors and other health care providers.

This is far from end of Feres. Nonetheless, it is an important victory for active duty service members and their families.

Despite this positive news, pursuing a medical malpractice claim against the U.S. Government remains an often uphill battle. If you or a loved one were injured by a medical error during active duty military service, seek assistance from attorneys with experience navigating the military’s complex administrative tort claims process. Effective legal representation may help you to maximize your financial compensation obtained from a military medical malpractice claim.