April 4, 2012

Continued Pushback Against the “Feres Doctrine” in the Military

by Levin & Perconti

The Feres doctrine is a principle related to the ability of military servicemembers to sue for medical malpractice. It is so-named based on a U.S. Supreme Court case from 1950. In the case the Court held that the government cannot be held liable for injuries suffered by active duty personnel caused the negligence of other servicemembers. In effect, the decision makes it impossible for active duty servicemembers to hold their military doctors accountable for mistakes made, no matter how serious the consequences.

Our Illinois medical malpractice lawyers know that over the last sixty years there has been widespread dissatisfaction with the Feres doctrine. It seems to breach the basic standards of fairness, constituting an egregious affront to deny those serving our military basic rights. Another U.S. Supreme Court challenge of the doctrine took place in 1987 in Johnson v. U.S. In the case the Court again reaffirmed the basic principles in Feres. In 2011 the Court again had the chance to reconsider its policy that takes away basic rights from military families who have suffered terrible loss as a result of the negligence of others. The case involved errors made during an appendectomy that left a servicemember in a persistent vegetative state and eventually his death. The man was married and had two young children. However, the Court refused to hear his case and potentially reverse the prohibition against accountability in these situations.

Now, according to the Stars and Stripes, another challenge to the doctrine is being made. In this case a retired airman filed suit against the government claiming that military surgeons botched what was supposed to be a routine gallbladder procedure. The surgeons accidentally cut his aorta during the procedure and then allowed the man to bleed out on the operating table. The man did not receive proper treatment for hours until he was transported to civilian hospital nearly nine hours later. The prolonged lack of blood flow into his legs meant that, as a result of complications from the surgical error, both of the man’s legs had to be amputated.

The servicemember has filed a medical malpractice lawsuit seeking damages for the servicemember and his wife for the consequences of their injuries which would have been prevented had the man received reasonable medical care.

Considering that the Court rejected a similar challenge just last year, our Illinois medical malpractice attorneys realize that it is highly unlikely that the case will somehow be accepted for review by the Court this time around. However, the legal advocate in this case said that the challenge is being made for principled reasons “to overturn the extremely unjust, outmoded, universally criticized, and judicially erroneous Feres Doctrine.” He went on to explain, similar to many patient advocates, that all active-duty military personnel should have the right to seek basic redress when their healthcare provider makes unreasonable errors that cause them severe harm. Considering the responsibilities and sacrifices made by members of the military already, it is entirely unnecessary to also take away their basic legal rights. This is particularly in non-combat situations when there is seemingly no logical effect such accountability would have on military readiness or effectiveness.

See Our Related Blog Posts:

Settlement Reached in Medical Malpractice Claim Against Military Hospital

Victims of Military Medical Malpractice Seeking Basic Legal Rights