Military Malpractice Immunity Challenged in Congress
The 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 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.