Justice Department on Mission to Limit Military Family Members’ Lawsuit Rights

The U.S. Justice Department is trying to convince a federal court that a 60-year-old doctrine, which has long prevented active duty military personnel from suing the U.S. government for medical malpractice, should extend to their families as well. The principal, known as the Feres Doctrine, as been a frequent target of critics who say it allows medical malpractice to go unchecked within the military medical system.

The Feres Doctrine, which bans U.S. active duty military personnel from suing the U.S. government under the Federal Tort Claims Act, originated with a 1950 U.S. Supreme Court decision, and was meant to cover situations that occur during battle or in the course of armed forces activities. However, over the years, Courts have extended that restriction to medical care received stateside, and U.S. troops are prevented from suing the U.S. government if they are injured by a negligent doctor or other healthcare practitioner within the military healthcare system.

According to an article recently printed in The Atlantic, two cases currently pending before a federal court could extend Feres Doctrine prohibitions to the families – spouses and children – of active duty military personnel if the Justice Department gets its way. The first involves the wife of Jimmy German, an active duty member of the U.S. Navy. In 2008, Asenath German, herself a former member of the Navy, arrived at the Naval Hospital in Jacksonville, Florida, complaining of a headache and suffering other symptoms, including vomiting. She was diagnosed with a migraine and sent home. Later that night, suffering with apparent stroke-like symptoms, Asenath returned to the hospital, where she was transferred to the Mayo Clinic Jacksonville for a brain hemorrhage. Prior to her death nine months later, Asenath and Jimmy sued, arguing that the military medical staff, doctors and nurses, had failed to properly treat her.

The second case involves the family of Elijah Price, the newborn son of a military mom and active duty dad, born at Jacksonville Navy Hospital in 2010. He only lived for an hour after birth, and his parent sued, claiming the hospital was negligent. They allege that Elijah’s mom had a history of gestational diabetes during the pregnancy, that he was “large for gestational age,” and that his mother should have been allowed to have her baby delivered by cesarean section.

The Justice Department is seeking to have both the Price and German cases dismissed before trial, without any hearing on the evidence, based on its interpretation that the Feres Doctrine’s prohibitions extend to the families of any active duty military members. Both the German and Price cases are before U.S. District Judge Marcia Morales Howard, and the Price decision could come any day. Legal experts expect similar decisions in both cases, and expect that regardless of the outcome, they will end up being appealed to the 11th U.S. Circuit Court of Appeals, and possibly, the Supreme Court, because so much is at stake.

Of course, if Congress were to act, none of this would matter. All Congress has to do is amend the Federal Tort Claims Act to protect the legal rights of active duty military personnel and their families. Although there have been attempts to do this over the past 60 years, they’ve mostly not gone anywhere, thanks to partisan politics. According to The Atlantic, the most recent attempt came in 2009, but Republican lawmakers balked because such an amendment would allow more malpractice cases to get to trial, something that runs counter to their goal of enacting tort reform.

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