On February 24, 2025, the United States Supreme Court denied a request for review of the ban on military service members suing for medical malpractice. The medical malpractice case involved a veteran who was paralyzed during a surgery at Walter Reed National Military Medical Center.
However, Justice Thomas issued a dissent to the Supreme Court’s denial of certiorari, stating, in part:
The Federal Tort Claims Act (FTCA or Act) makes the Federal Government liable for tort claims to the same extent as private individuals, subject to certain enumerated exceptions. 28 U. S. C. §§2674, 2680. In Feres v. United States, 340 U. S. 135 (1950), this Court created an additional, atextual exception for claims based on “injuries incident to military service.” Id., at 144. The Court has never articulated a coherent justification for this exception, and the lower courts for decades have struggled to apply it. The result is that courts arbitrarily deprive injured servicemembers and their families of a remedy that Congress provided them.
As I have said before, we should fix the mess that we have made … Because this case cleanly presents an opportunity to overrule, or at least limit, Feres, I would grant the petition for certiorari …
This Court should overrule Feres. The Feres doctrine has no basis in the text of the FTCA, and its policy-based justifications make little sense. It has been almost universally condemned by judges and scholars. And, it is difficult for
lower courts to apply, leading to several splits in the Courts of Appeals. At minimum, the Court should impose clear
limitations on the Feres doctrine’s scope …
Feres is indefensible as a matter of law, and senseless as a matter of policy. Under the plain terms of the FTCA, there is no broad exception for injuries incident to military service. See 28 U. S. C. §2680. The only “rationales” currently propping the doctrine up—avoiding varying state-law standards, the adequacy of VBA benefits, and preventing judicial interference in military affairs—are naked policy considerations … But, Feres’s policy rationales are hardly formidable, depriving injured servicemembers and their families of a remedy for no good reason at all …
The Feres doctrine is an undisguised act of judicial legislation, and a poor one at that. Its purported rationales have
no basis in the text or logic of the FTCA. Instead, the doctrine unjustifiably deprives the injured servicemember of a
tort remedy simply “because [he] devoted his life to serving in his country’s Armed Forces.” …
The facts of this case illustrate the problems with the Feres doctrine. Petitioner Ryan Carter was a dual-status military technician and inactive-duty Staff Sergeant in the Air National Guard reserves. Carter suffered from a degenerative neck condition. To alleviate chronic pain caused by this condition, he underwent elective surgery at a military hospital in 2018. During surgery, Carter sustained an injury to his spinal cord that left him permanently disabled and paralyzed in all four limbs. Following the surgery, Carter and his wife sued the United States under the FTCA, alleging that the Government is vicariously liable for its medical staff ’s negligence and failure to obtain informed consent. But, the Fourth Circuit held that Feres barred their suit because Carter “was a member of the military” being treated at a military hospital “by military doctors” at the time of his injury. 2024 WL 982282, *1 (Mar. 7, 2024).
Carter’s suit should be allowed to proceed. None of the FTCA’s enumerated exceptions bars an ordinary medical malpractice suit for treatment received at a domestic hospital. See §2680. In fact, had Carter been a veteran rather
than an inactive-duty reservist, he unquestionably could have filed suit for the same injuries arising from the same
treatment by the same military staff at the same military hospital. See Brown, 348 U. S., at 112 (holding that Feres
did not apply to a veteran suing for negligent treatment at a military hospital “after his discharge”). No command of the FTCA—and no unique military interest—is honored by treating Carter’s claim differently. At the very least, Carter’s case shows why this Court should clarify the scope of the Feres doctrine … Even if the Court wants to keep Feres in some form, I cannot see why claims with such a tenuous connection to military activity should fall within its reach. I hope that this Court will one day overrule Feres.
If you or a loved one suffered harm as a result of medical malpractice involving the VA, you should promptly find a federal medical malpractice lawyer (Federal Tort Claims Act lawyer) who may investigate your federal medical malpractice claim for you and represent you or your loved one in a Federal Tort Claims Act medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find veterans medical malpractice attorneys in your U.S. state who may assist you.
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