The United States Court of Appeals for the Ninth Circuit (“Federal Appellate Court”) in its decision filed on May 7, 2018 stated that it “regretfully reach[s] the conclusion that [the plaintiff’s] claims are barred by the Feres doctrine” in a case in which the husband of a Navy Lieutenant who hemorrhaged and died four hours after giving birth at a Navy hospital filed a federal medical malpractice wrongful death complaint, individually and acting as the personal representative of his wife’s estate, asserting that his wife’s death was due to the medical negligence of the medical staff at Naval Hospital Bremerton.
The Feres Doctrine
The Federal Tort Claims Act (“FTCA”) effected a broad waiver of sovereign immunity, rendering the United States liable for the tortious acts of its employees “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.
Shortly after the FTCA’s enactment, the United States Supreme Court held that the FTCA’s waiver of sovereign immunity does not extend to “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135 (1950).
Over time, the United States Supreme Court has articulated three policy rationales supporting the Feres doctrine: 1) the distinctively federal nature of the relationship between the Government and the armed forces requires a uniform system of compensation for soldiers stationed around the country and around the world; 2) a generous compensation scheme for soldiers (the Veterans’ Benefits Act) serves as an ample alternative to tort recovery; and 3) permitting military personnel to sue the armed forces would endanger discipline.
The Feres decision has been often criticized (a dissenting opinion authored by Justice Scalia in United States v. Johnson, 481 U.S. 681, 700 (1987) stated, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”)
Because of extensive criticism of the Feres doctrine and its underlying justifications, the Federal Appellate Court has shied away from attempts to apply the policy rationales. Instead, when determining whether an injury occurred “incident to service,” thereby implicating the Feres doctrine, the Federal Appellate Court engages in a case-specific analysis focusing on four factors: (1) the place where the negligent act occurred, (2) the duty status of the plaintiff when the negligent act occurred, (3) the benefits accruing to the plaintiff because of the plaintiff’s status as a service member, and (4) the nature of the plaintiff’s activities at the time the negligent act occurred. No one factor is dispositive and the Federal Appellate Court must consider the totality of the circumstances.
The Federal Appellate Court stated that its precedent dictates that comparison of fact patterns to outcomes in cases that have applied the Feres doctrine is the most appropriate way to resolve Feres doctrine cases. Nonetheless, the Federal Appellate Court has consistently applied the Feres doctrine to bar medical malpractice claims predicated on treatment provided at military hospitals to active duty service members.
Citing its prior appellate court decision involving medical treatment of an active duty servicewoman at a domestic military hospital for a condition of pregnancy unrelated to military service in which it held specifically that the claim was barred despite its belief that the military discipline rationale did not support application of the Feres doctrine in the circumstances of that case, the Federal Appellate Court held that it must follow the holding in that case, in the present case.
Nonetheless, the Federal Appellate Court concluded: “Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.”
Source Daniel v. United States of America, No. 16-35203.
If you or a loved one suffered injury (or worse) as a result of medical malpractice at a federal medical facility, you should promptly consult with a local medical malpractice lawyer in your U.S. state who handles Federal Tort Claims Act claims and who may investigate your federal medical malpractice claim for you and represent you or your loved one in a federal tort claim action, if appropriate.
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