On October 31, 2018, an Army Sergeant died following a prolonged battle with stage 4 stomach cancer. His widow claims that military care providers committed medical malpractice when they failed to diagnose his stomach cancer during multiple visits to Army base doctors over a four-year period.
The Army sergeant was 35-years-old when he joined the Army in March 2008. He enlisted as an information technology specialist. In 2012, he was assigned to SHAPE (NATO’s Supreme Headquarters Allied Powers Europe) in Belgium. On November 19, 2012, he visited the command’s health facility after experiencing abdominal pains during physical training. A CT scan of his abdomen at the time indicated that he had a hernia. The CT scan also allegedly showed a mass, which according to the man’s wife was never discussed with her or her husband.
On December 5, 2012, the sergeant had surgery for the hernia at Landstuhl Regional Medical Center in Germany. He was transferred back to the United States and assigned to Fort Campbell, Kentucky in November 2013. All the while, he was still in pain.
In April 2016, shortly before the sergeant was scheduled to leave the Army, he was hospitalized for five days due to a bowel obstruction at Blanchfield Army Community Hospital. He was told to follow up later when he had private insurance. When the sergeant finished his active duty service in the Army, he enlisted in the National Guard in May 2016.
The sergeant was diagnosed with stage 2 stomach cancer at the VA’s Tennessee Valley Healthcare System on September 12, 2016. On October 3, 2016, as he was having a catheter port for chemotherapy installed, VA care providers determined his cancer was actually stage 4.
The sergeant’s wife stated, “I was devastated. We knew that there was the chance that when he deployed to Afghanistan, that he might get injured, he might die. We understood that. We didn’t expect it to creep up on him while he was in the process of getting out. He served his contract, he was in the process of [leaving the military] and that’s when the bowel blockage hit. That’s when we knew something was seriously wrong, but nobody would listen. At least nobody in the Army would listen.”
The sergeant was told that he had three to six months to live, but he lived for two years. During that time, he had chemotherapy every week to two weeks.
Before her husband died, the sergeant’s wife filed a medical malpractice claim with the Judge Advocate General at Fort Campbell, alleging medical negligence in her husband’s medical care.
On September 28, 2018, the Judge Advocate General at Fort Campbell sent the wife a letter that stated that the medical malpractice claim was denied because it was barred by the Feres doctrine because her husband was still in the military and the alleged medical malpractice occurred while he was on active duty.
In Feres v. United States, 340 U.S. 135 (1950), the United States Supreme Court held that the Federal Tort Claims Act (“FTCA”), which 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), does not extend to “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”
Over time, the 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.
Because of extensive criticism of the Feres doctrine and its underlying justifications, courts have shied away from attempts to apply these policy rationales. Instead, when determining whether an injury occurred “incident to service,” thereby implicating the Feres doctrine, courts engage 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.
Courts have consistently applied the Feres doctrine to bar medical malpractice claims predicated on treatment provided at military hospitals to active duty service members.
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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