My medical malpractice claim is "Feres-Barred," What's that?

By CAPT Sam Wright, Director, Servicemembers Law Center

Q: I retired from the Army a few months ago, with 23 years of active duty. I had abdominal surgery shortly before I retired. I have had serious, unexplained digestive problems which my civilian doctor was unable to explain or treat. Finally, she scheduled me for exploratory surgery. The surgeon found a piece of a sponge in my gut—it must have been left there during the Army surgery.

I made an appointment with an attorney who specializes in medical malpractice cases. This seems like an “open and shut” case of malpractice, but the lawyer refused to take my case. He told me that my malpractice claim is “Feres barred.” What does that mean?

A: The attorney was referring to a Supreme Court case styled Feres v. United States, 340 U.S. 135 (1950). This citation means that the case can be found in Volume 340 of United States Reports (which includes only United States Supreme Court decisions), and the decision starts on page 135. The attorney is correct that, under current law, it would be a waste of time for you to file suit against the Federal Government on this claim.

The traditional rule in Great Britain and the United States is “the King can do no wrong” or “sovereign immunity.” This means that you cannot sue the sovereign (state or federal) without the sovereign’s consent. That consent was not generally granted until well into the 20^th Century, and it is still withheld as to some kinds of claims.

In 1946, Congress enacted the Federal Tort Claims Act (FTCA), a statute that permits individuals to sue the Federal Government and collect money damages for torts committed by federal employees (including military personnel) in the course and scope of their employment, if such negligent or wrongful acts result in personal injury, wrongful death, or property damage. The Federal Government is generally liable for money damages for the negligent or wrongful act of its employee, if and to the same extent that a private person or corporation would be liable, in accordance with the law of the state where the alleged tort occurred.

As enacted in 1946, the FTCA neither expressly permitted nor expressly forbade claims by military personnel, and the issue came up in several federal court cases. Two circuit courts of appeals held that the FTCA impliedly precluded claims by military personnel, and one circuit held that the FTCA authorized such claims. The Supreme Court granted certiorari (discretionary review) in all three cases and consolidated them for decision, in order to resolve this conflict among the circuits.

The Supreme Court held, “We conclude that the government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the government has been governed exclusively by federal law. We do not think that Congress, in drafting this act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command.” Feres, 340 U.S. at 146.

The Court’s unanimous decision also acknowledged uncertainty in ascertaining the intent of Congress on this question: “There are few guiding materials for our task of statutory construction. No committee reports or floor debates disclose what effect the statute [FTCA] was designed to have on the problem before us, or that it even was in mind. Under these circumstances, no conclusion can be above challenge, but if we misinterpret the act, at least Congress possesses a ready remedy.” Feres, 340 U.S. at 138.

The “ready remedy” to which the Supreme Court referred was to amend the FTCA. If Congress wants to permit servicemembers to recover for personal injury or wrongful death incident to their service, Congress can amend the statute to permit such recovery. In the 59 years since the Supreme Court decided Feres, scores of bills to repeal the Feres Doctrine have been introduced, but no such law has been enacted. At various times, such bills have passed the House of Representatives or the Senate, but no such bill has passed both the House and Senate in the same Congress.

On October 7, 2009, the House Judiciary Committee approved H.R. 1478, the proposed “Military Medical Accountability Act of 2009.” The committee vote was 14-12, indicating that this is a very controversial bill and its passage is by no means certain. The bill is named in honor of the late Carmelo Rodriguez, a Marine who died of melanoma in 2007. A Navy doctor correctly diagnosed melanoma several years previously, but no one told Rodriguez or arranged for timely medical care that might well have saved his life. His family’s wrongful death claim was barred by the Feres Doctrine. Maybe this Congress will see a change in this doctrine. We will keep the readers informed.

The “Thomas” service on the Library of Congress website (www.loc.gov) summarizes H.R. 1478 as follows: “Amends the Federal Tort Claims Act to allow claims for damages to be brought against the United States for personal injury or death of a member of the Armed Forces arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions that is provided by persons acting within the scope of their office or employment by or at the direction of the government inside the United States.”

Q: I can see where it would be contrary to good order and discipline to permit soldiers to sue their commanding officers, or the government, for alleged negligence in the conduct of combat operations. I don’t see how allowing me to sue for the negligence of an Army doctor, in leaving a piece of a sponge inside my body during surgery, in any way implicates issues of military discipline. Does the Feres Doctrine apply to medical malpractice cases?

A: Yes. Two of the three cases that the Supreme Court consolidated for decision were medical malpractice cases. The Feres case itself involved a barracks fire that resulted in the death of Lieutenant Rudolph J. Feres, but the other two cases were medical malpractice cases. One of those cases involved a towel left inside a patient during surgery. When the towel was removed in subsequent surgery months later, “Brooke Army Medical Center” could be read on it.

Q: I have heard of successful medical malpractice claims brought by military retirees and dependents. Are those claims permitted by the Feres Doctrine?

A: Yes. Military retirees and dependents are permitted to sue and recover for their own injuries or deaths. If the sponge left in your body had resulted in your death, your widow’s wrongful death claim would have been barred by the Feres Doctrine.

In your case, the malpractice occurred while you were on active duty, but the bad effects became manifest after you retired. Your status at the time of the alleged negligence controls, and your claim is barred. The result would be different if you had undergone the surgery as a retiree.