Medical Malpractice News

Military member and doctor

Should Active Duty Military be Allowed to Sue the Military for Malpractice?

Tags: , , , , , | Comments: 0 | January 18th, 2019

Walter Daniel had already experienced his worst nightmare. His wife, Lt. Rebekah Daniel, who served as a nurse in the military, had just died of severe post-partum hemorrhage just two hours after giving birth to their first child. She died in the same naval hospital where she worked as an active-duty nurse. But worse, because of a little-known piece of legislation, Walter Daniel was prevented from finding out what exactly went wrong in the death of his own wife.

The naval Lieutenant’s widower had run up against the Feres Doctrine. According to the doctrine, the United States cannot be considered liable “for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.” In other words, if an active member of the armed forces suffers because of the negligence or malpractice of military physicians, the injured party cannot file suit. More than that, as an internal matter, all records of the incident in question remain private, even from family.

The Feres Doctrine was established in 1950 as a result of Feres v. United States, which combined the wrongful death cases of three separate active duty members of the military. In 1946 the Federal Tort Claims Act was established, which allowed private parties to sue the government of the United States. The plaintiffs in Feres v. United States attempted to file suit against the government according to precedent set by the Act.

Military camouflage background and stethoscope

However, the Supreme Court ruled against the plaintiffs, arguing that a) the military already had its own system in place to compensate those on active duty, and b) “opening the military to lawsuits might invite second-guessing of command decisions in civilian courts.”

At least from the command side, the reasoning behind the ruling makes sense. If the military has already established a system of compensation, then their service members can be duly compensated without risking the over-cautionary decision-making that plagues civilian doctors that are worried about malpractice suits.

However, the Feres Doctrine also creates a major conflict of interest. If the military is itself deciding a case against its own institution, what’s to prevent cases of gross negligence from being locked behind a “Classified” designation? Also, in the Daniel’s case, an internal investigation means that those on the “outside,” like Lt. Rebekah Daniel’s widower, and her daughter, could be left in the dark forever regarding the circumstances of the death their loved one.

When the Supreme Court hears Lt. Daniel’s case, which it will in the near future, the courts will have to decide how to weigh the rights of military service members against the interests of its military. That should say a lot about how the Feres Doctrine might be applied to today’s issues.