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Military Malpractice Immunity Challenged in Congress

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Patient EvacThe United States military is shielded from malpractice suits, or at least it has been for quite some time now. That is a situation that might change drastically.

The shield is a long-standing legal ruling called the Feres Doctrine. Mitch Stacey, a writer for the Associated Press, explains in is recent article in Forbes:

The Feres (pronounced FEHR-es) ruling grew out of the Federal Tort Claims Act of 1946, which allowed lawsuits against the government for negligent acts under certain circumstances. Initially the law was interpreted to forbid lawsuits by military personnel and their families only for combat-related injuries and deaths, but the decision in Feres vs. United States – involving a soldier who died in a barracks fire – widened that exclusion to bar any lawsuits over injuries ‘incident to military service.’

That is where things have stood since the mid-forties; but could possibly change soon.

This is not the first time this doctrine has been challenged. Many efforts have been made to change it, including one in which conservative Justice Antonin Scalia penned a vitriolic dissenting opinion when Feres was supported. Then there was a bill introduced in 2009 by the same Congressman behind the current effort.

Commentary on the subject in 2009 was almost identical to what is being heard in 2011. Byron Pitts, a writer for CBS News, digs into the archives and brings us the conflicting views that faced the proposed legislation two years ago:

‘This bill is about holding our military accountable for its actions’ [Maurice] Hinchey [Congressman, NY] said on the floor of Congress last summer. […]

Still, the Feres Doctrine has its supporters, like Maj. Gen. John Altenburg, Jr. (Ret.). He said the doctrine should remain in place but added, ‘What should happen for people like Staff Sgt. Rodriguez and his family and others similarly situated is that the benefits system that we do have should be greatly enhanced.’

While we have seen this cross the floor of Congress several times in past years, it has yet to make it through.

Now the case of a 25-year-old, non-commissioned officer is poised to bring it before the lawmakers once more. Air Force Staff Sgt. Dean Patrick Witt died after a nurse mistakenly put a breathing tube in his esophagus instead of into his air passage. The Travis Airforce Base nurse has since admitted her error and surrendered her state license. The case has sparked enough interest that the Supreme Court has asked for more information from the involved attorneys and will make a decision next month on whether the case will proceed to trial.

No matter your feelings on the issue, if enacted, this would create a profound shakeup in malpractice litigation. The Congressional Budget Office quotes an average of $135 million in annual claims, and $2.7 billion in the next decade if the ruling is made retroactive.

Image by The U.S. Army, used under its Creative Commons license.


One Response to “Military Malpractice Immunity Challenged in Congress”

  • Jeffrey Ziegler says:

    Every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. Be aware that Feres also protects the US military from legal malpractice.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.

    When I asked the top lawyer (now Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar.

    It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald got promoted to Major. Feres was NEVER designed 50 years ago to protect against torts, corruption, misdeeds, and cover-ups by US Army lawyers. Today it protects against everything.


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