Jacob M. Appel, M.D., J.D.

Most Americans take for granted the right to sue their physicians for negligent or reckless conduct. While considerable disagreement exists regarding such related issues as caps on payouts for “pain and suffering,” rare are objections to the basic principle that patients directly injured as a result of substandard treatment deserve to receive a day in court and monetary damages. Yet for members of the United States Armed forces and their survivors, such recovery in the civil courts is generally prohibited by law. A grassroots movement is now gaining strength to change this antiquated policy, but it is not without its opponents.

The ban is colloquially known as the “Feres doctrine” after a 1950 Supreme Court decision (technically a consolidation of three cases), penned by Justice Robert Jackson, which denied the estate of Lieutenant Rudolph J. Feres to make a wrongful death claim against the U. S. Army for his death in a barracks fire allegedly caused by a faulty heater. Carving out an exception to the Federal Tort Claims Act of 1946, the Court relied upon the English common law principle of “sovereign immunity” to conclude that the military could not be sued for injuries by active personnel without government permission. So far, that permission has not been granted. Multiple cases in recent years have upheld the doctrine — even though it increasingly appears to run contrary to American norms regarding compensation and justice.

Several high profile cases in which the Feres doctrine has banned recovery have drawn public attention in recent months. Coast Guard veteran Walter Daniel wrote a powerful column in the Seattle Times in October 2019 describing how the rule banned him from suing after his wife, a nurse in the Navy, died during childbirth following alleged negligence at the U.S. Naval Hospital in Bremerton, Washington, in 2014 (1). Joce Sterman and Alex Braue of the Sinclair Broadcast Group have reported on the tragedy of Navy pharmacist Jordan Way, whose parents, Dana and Suzi Way, were prevented from suing after their son died in the wake of “routing surgery” at Bush Naval Hospital in Twentynine Palms, California (2). 

Congresswoman Jackie Speier of California introduced bipartisan legislation in July, know as the “Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019,” to reverse the Feres doctrine. Backers of the change include Blue Star Families and the Military Officers Association of America. Efforts to include the provision as a rider to this year’s must-pass defense authorization bill have faltered in the Senate, but Senators John Kennedy of Louisiana and Mazie Hirono of Hawaii have introduced stand-alone legislation on the subject. Their principal opponent remains Senator Lindsay Graham of South Carolina, a retired U.S. Air Force Reserve colonel who has derided the law as a “Pandora’s box” that would allow different tiers of compensation for malpractice under different circumstances — such as injuries occurring in combat abroad versus during routine stateside surgeries (3).

Yet the problem with the Feres doctrine as it now stands is arguably its one-size-fits-all approach to lawsuits. A strong case can be made for preventing litigation over injuries that arise during armed conflict or are treated inside combat zones. Complex issues regarding evidence, context and the exigencies of warfare make civilian courts particularly ill-suited to address such claims. However, the Feres doctrine as it currently stands prohibits suits in circumstances nearly identical to those in which a civilian might sue.  All that differs are the identity of the victim’s employer and the name of the entity that runs the hospital where the malpractice occurs. This approach runs contrary to one of the most fundamental principals of medical ethics and justice: Similarly situated people should not be treated differently.

The courts have already limited the Feres principle in one regard. Civilian dependents of military personnel treated in military facilities generally do retain the right to sue. But the notion that a pharmacist having surgery in California or a nurse giving birth in Washington should not be able to sue for malpractice simply because they are serving their country defies common sense — and decency. Active military personnel deserve both our gratitude and tangible benefits for their service. They do not deserve to “lump it” when it comes to the consequences of substandard medical care.

References:

1. Daniel, Walter. “Why I can’t sue the Navy for the death of my wife in childbirth.” Seattle Times, October 11, 2019.
2. Sterman, Joce and Brauer, Alex. “An old law bars military members from suing for malpractice. Congress wants to change it.” November 4th 2019. Available at:  https://wjla.com/news/spotlight-on-america/an-old-law-bars-military-members-from-suing-for-malpractice-congress-wants-to-change-it
3. Shane, Leo.  “Bid to allow troops to sue for military medical malpractice hits Senate snag.” Military Times, September 11, 2019.