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Congress grants military members partial victory, but Feres Doctrine survives

Congress grants military members partial victory, but Feres Doctrine survives
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An often criticized 1950 Supreme Court decision, Feres v. United States, is being called into question by Congress. The law has barred active-duty servicemembers from suing the federal government and obtaining just compensation for injuries found to be “incident to service.” The controversy lies in the government’s broad application of this term. The so-called Feres Doctrine ultimately precludes claims made by active-duty military personnel for medical malpractice, sexual harassment and negligence against the federal government.

A revision to the Feres Doctrine has passed the Senate and is likely to be signed into law this month. However, some argue that the compromise is too little, too late. If signed by President TrumpDonald John TrumpIvanka Trump, Jared Kusher's lawyer threatens to sue Lincoln Project over Times Square billboards Facebook, Twitter CEOs to testify before Senate Judiciary Committee on Nov. 17 Sanders hits back at Trump's attack on 'socialized medicine' MORE, the recent 2020 National Defense Authorization Act would, for the first time, allow active-duty military personnel to seek compensation by filing claims resulting from malpractice caused by military physicians. This encompasses medical, dental and other health care functions. 

The compromise has been heralded as a victory, but the bill raises more questions than answers.

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The bill will not give military members the right to sue for damages like their civilian counterparts. It has been said that the “devil is in the details.” The Department of Defense alone will be charged with establishing the rules and standards for judging the merit of each claim, as well as compensation for damages. This legislation will not apply to cases predating 2017. These limitations, coupled with the narrow medical malpractice scope, further deny justice to victims and families who have been obstructed by the Feres Doctrine.

For example, the legislation comes too late for the family of Rebekah Daniel, a Navy lieutenant who died at a naval hospital following childbirth, allegedly as a result of medical malpractice. In Walter Daniel v. United States, the Supreme Court denied considering Daniel’s claim of medical malpractice. At the time, diverse legal voices, including Justices Ruth Ginsberg and Clarence ThomasClarence ThomasPlaintiff and defendant from Obergefell v. Hodges unite to oppose Barrett's confirmation The Senate should evoke RBG in its confirmation of Amy Coney Barrett Supreme Court's Pennsylvania mail ballot ruling tees up test for Barrett MORE, called for a review of the case. The May 2019 decision did not see the benefit of this new law.

The bill’s narrow focus prevents justice for Army Capt. Katie Blanchard, who suffered a devastating injury in 2016 when an Army civilian threw gasoline on her and lit a match. Blanchard sustained disfiguring injuries as a result of this attack and alleged that the Army ignored her warnings about a dangerous, violent colleague. She filed a personal injury claim, based on the Army’s lack of action, but Blanchard remains without a remedy because of the Feres Doctrine.

Furthermore, the legislation limits compensation and places financial burdens on those seeking justice. The Defense Department will be liable only for the portion of the compensable injury, loss, or damages attributable to the medical malpractice of a Defense health care provider. This provision is inconsistent with the recognized tort maxim that a defendant takes a victim as he finds him. In addition, the government will not be liable for attorney’s fees, and any fee recovered by an attorney is limited to 20 percent of the claim paid. 

This long-overdue legislation is the product of nearly 70 years of relentless backlash and criticism by courts, legal scholars, politicians and the public. The broad interpretation of “incident to service” has been widely debated, even among the Supreme Court. Justice Thomas aptly stated that extending the Feres Doctrine to any damages suit carries “the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the Government or its employees.” He explained that he agrees with the late Justice Antonin Scalia, who argued, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

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While some legal scholars have suggested that any change to the Feres Doctrine would restrain the military, these claims are misplaced. Providing legal consequences to negligent actions would promote accountability within the military. Some complain that without Feres, injuries from medical malpractice might yield more rights than injuries suffered in combat. 

Citizens assume a substantial risk when entering military service, including injuries sustained in war. But servicemembers should not assume the risk of shoddy medical treatment, sexual harassment, or workplace violence. In the aftermath of her injuries, Blanchard stated: “I signed the line knowing that I could go overseas and do all of these dangerous things, but I didn’t sign up to be attacked in the office.” Her observation is well taken.

The Feres Doctrine was rightly on life support. Now, there is a real fear that the momentum to make meaningful legislative changes has been lost. While some victims may welcome the current compromise, it is clear that the changes fall well short of addressing the fundamental inequity experienced by active-duty service personnel.

Richard E. Custin is a clinical professor of business law and ethics at the University of San Diego School of Business. He is an attorney, mediator, author and frequent commentator on legal issues concerning military medical malpractice.