June 5, 2019

On May 20, 2019, the United States Supreme Court refused to grant certiorari in a medical malpractice case involving a Navy nurse who was 33 when she died on March 9, 2014 following a massive postpartum hemorrhage at the Naval Hospital Bremerton, within hours of the birth, after military doctors allegedly failed to halt massive bleeding following childbirth. The case sought to reconsider and overturn the Feres doctrine, which was established in a U.S. Supreme Court case from 1950 that bars active-duty military members from suing the federal government for injuries, including medical malpractice.

Justice Thomas, in a dissenting opinion from the denial of certiorari, wrote, in part: “Petitioner Walter Daniel filed this tort suit against the United States after his wife, Navy Lieutenant Rebekah Daniel, died at a naval hospital due to a complication following childbirth. The District Court determined that the suit was barred by Feres v. United States, 340 U. S. 135 (1950), which held that military personnel injured by the negligence of a federal employee cannot sue the United States under the Federal Tort Claims Act. The Court of Appeals “regretfully” reached the same conclusion and affirmed. 889 F. 3d 978, 980 (CA9 2018). Petitioner now asks the Court to reconsider Feres. I have explained before that “‘Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.’” Lanus v. United States, 570 U. S. 932, 933 (2013) (quoting United States v. Johnson, 481 U. S. 681, 700 (1987) (Scalia, J., dissenting)). I write again to point out the unintended consequences of this Court’s refusal to revisit Feres … Such unfortunate repercussions—denial of relief to military personnel and distortions of other areas of law to compensate—will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres. Had Congress itself determined that servicemembers cannot recover for the negligence of the country they serve, the dismissal of their suits “would (insofar as we are permitted to inquire into such things) be just.” Johnson, supra, at 703 (Scalia, J., dissenting). But it did not. Accordingly, I respectfully dissent from the Court’s decision to deny this petition.”

Justice Ruth Bader Ginsburg stated that she would have granted the petition for a writ of certiorari.


The United States Supreme Court last addressed a challenge to the Feres doctrine more than 30 years ago at which time the justices voted 5-4 to uphold it. Justice Antonin Scalia vehemently dissented from that decision.

The United States Congress considered amending the Feres doctrine in the past but never changed it. In April 2019, Representative Jackie Speier (D-Calif.) introduced H.R. 2422, which would allow active-duty service members to sue the government for damages caused by medical malpractice. The bill has been referred to the House Judiciary Committee.

If you or a loved one may have been injured as a result of medical negligence in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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