No Recourse for Military Medical Malpractice Victims

Astonishingly, federal law prohibits members of the armed forces and their family members from collecting damages in cases of personal injury and medical malpractice against other culpable armed service members or the federal government under a law called the Feres Doctrine. Herein, the details of this law are explored and case studies illuminate the shocking consequences of an unjust law.

The grieving family of late sergeant Cindy Wilson received a second devastating emotional blow after learning that they were unable to seek legal damages against the negligent medical team responsible for Cindy’s death. Laboring to deliver her first child, a son, 37-year old Wilson underwent a cesarean section that went horribly wrong. During this surgery, the doctors severed a major uterine artery, which caused massive bleeding leading to Ms. Wilson’s death just 12 hours later. Furthermore, a medical investigation found that the doctors had left two medical sponges inside Ms. Wilson before stitching her up, a ghastly medical mistake that often results in infection and death.

Despite clear evidence that Ms. Wilson’s death was the direct result of gross medical malpractice, her widowed husband, now-motherless child and grieving parents are unable to sue for wrongful death because of a federal legal statute that prevents service members and their families from collecting damages for personal injuries, wrongful death, and loss of consortium from other members of the military. To make matters worse, another federal law mandating confidentiality of medical quality assurance records has prevented Cindy’s grieving family from access to the medical investigation findings pertaining to her death. Further adding insult to injury, the lead obstetrician during Cindy’s c-section continues to practice and received no professional disciplinary action.

Sadly, Ms. Wilson’s case is not the only instance of gross military medical malpractice for which the aggrieved have been able to see compensation. The following are just some recent cases of military medical malpractice that have not had their day in court due to the Feres Doctrine.

  • A naval officer died after his cancer was diagnosed as eczema.
  • An air force sergeant suffered irreparable brain damage after doctors failed to diagnose his appendicitis.
  • A sailor was rendered infertile when military surgeons left five sponges and a plastic device in her stomach during surgery.
  • A marine sergeant died of undiagnosed and untreated cancer, despite having several medical exams by military personnel.
  • A navy petty officer suffered permanent brain damage after doctors failed to treat him for an uncomplicated case of pneumonia.

In all of these cases, the injured and their grieving family were unable to seek damages due to the Feres Doctrine.

What is the Feres Doctrine?

The Feres Doctrine is a federal statute established during a series of court cases including a landmark Supreme Court case in 1950 (Feres v. United States) involving a member of the armed services who died after an Army doctor left a 30 by 18 inch towel in his body during surgery. In this case, the Supreme Court ruled that the US and members of its armed services cannot be held liable under the Federal Tort Claims Act for injuries to other military members during active duty.

Originally the federal law was meant to bar medical malpractice lawsuits only in cases of combat-related injuries, but the Feres Doctrine broadened the US government’s protection from liability to all cases of military medical malpractice.

Reactions to the Feres Doctrine

Military families, lawyers, and Congress members have long been opposed to the Feres Doctrine, arguing that the law renders service members second-class citizens. They also point to increased cases of military medical malpractice in the absence of any legal consequences for such negligence. According to Jonathan Turley, a law professor at George Washington University, these above-mentioned cases illustrate how the Feres Doctrine has contributed to substandard military medical care. He considers the Doctrine one of the most grotesque rules created in the history of this country and says that it has done untold damage to thousands of military personnel and their loved ones.

Supreme Court judges have hotly contested the Feres Doctrine since its inception. In a 1987 Supreme Court decision Justices John Paul Stevens and Antonio Scalia dissented to a reaffirmation of the Doctrine by declaring it wrongly decided and deserving of the widespread almost universal criticism it has received.

Attempted to repeal this unjust law have surfaced routinely in the last 20 years but without success. One reason cited for this failure is the costs associated with upgrading the military medical system to meet basic civilian medical standards. “Congress simply doesn’t want to spend the money,” says Turley. “Soldiers and sailors are a real bargain to kill and injure in the United States.”

Ted Oshman

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Ted Oshman has been with Oshman & Mirisola since 1988 serving clients for over 25 years. Learn more about Ted's background and featured practice areas here.

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