Finally, some changes to the Feres Doctrine!

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

There have been many attempts to eliminate or at least to change the effect of the Feres doctrine over the years, and Justice Clarence Thomas recently expressed his support for change.  But all attempts had failed, Until now.  

Thus I am happy to report that the Defense Department has published a new rule governing how uniformed service members or their representatives can file claims against the military for medical malpractice.  This new rule states that (subject to some exceptions)

"A substantiated claim under $100,000 will be paid directly to the member or his/her estate by the [Department of Defense (DoD)]. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues."

However, it must be noted that the rule does not allow for judicial review of adjudicated claims, and that, therefore, their settlement will be "final and conclusive."

So, it while it is a good thing that plaintiffs will have the chance to recover for their injuries, the remedy provided is still short of the recognition of a possible judicially resolved tort claim.  

For more information, you can go to Military.com, Stars and Stripes and the NY Personal Injury Law Blog.

Justice Clarence Thomas again affirms the Court should get rid of the Feres doctrine

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

Recently, Justice Thomas has repeatedly argued that Feres should be overruled.  He did so in 2019 in a dissent from a cert petition (see here); and he did so again earlier this month.  

In yet another dissent from a cert petition Justice Thomas argued should have agreed to hear the appeal of a West Point cadet who sued claiming she was raped by another cadet.  

Justice Thomas opined that Feres v. United States was wrongly decided because the decision was not based on the wording of the Federal Tort Claims Act.  The exception in the Act was meant to protect the government from suits “arising out of … combatant activities … during time of war” but Feres extended that notion by recognizing immunity from suits in any way incident to military service.

The case is called Doe v. United States and you can read Justice Thomas' opinion here.

Senate approves Defense Authorization Bill which includes provision to provide compensation to military personnel injured by negligence of military doctors

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury under any circumstances while the plaintiff was in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.

The debate over whether the Feres Doctrine should be abandoned has raged ever since.  In fact, last May, two Justices of the Supreme Court suggested it was time to get rid of it.  See here.  Soon after that, the New York Times published an Op-Ed piece urging Congress to eliminate the doctrine.  See here.

Maybe in response to these events, later in the year Congress debated inserting a provision into the annual defense authorization bill to offer payouts to victims of military medical malpractice.  The provision did not alter the Feres doctrine, but it creates a system to provide limited recovery to some victims of military medical malpractice.

Last week, the Senate voted, 86-8, to pass the National Defense Authorization Act including $400 Million for the Defense Department to investigate and pay out military medical malpractice claims internally, bypassing the Feres Doctrine. 

This sounds great, but the details of the provision severely limit its possible benefits.  Most importantly, claims would be limited to under $100,000, and legal fees are capped at 20%.  Unfortunately for the victims, these limits will make it difficult for them to find lawyers to on the representation.  Medical malpractice cases are typically very expensive to litigate and being able to recover only $20,000 will make the cases not viable financially.

According to the bill, the Secretary of Defense can create regulations that allow them to pay more, but those regulations haven’t been written.

The New York Personal Injury Law Blog has a good short comment on the bill here.

NYT Op Ed on the Feres Doctrine

Yesterday I commented on the news that two Justices voted to take on a case that could have resulted in a change to the Feres Doctrine.  Today there's more.  Stephen I. Vladeck, a professor at the University of Texas School of Law, just published an Op Ed piece in the New York Times calling on Congress to undue the doctrine.  You can read the article here.  In part, it states:

For almost as long as it has been on the books, the Feres decision has been controversial. The case reached the Supreme Court in 1950, four years after Congress broadly expanded the tort liability of the federal government in the Federal Tort Claims Act and shortly after the United States had entered the Korean War. Although Congress had expressly disallowed claims from anyone arising out of the military’s “combatant activities,” the Supreme Court in Feres went further. It held that Congress could not have intended that service members could bring ordinary tort suits for any other claims arising out of their military service, even though nothing in the law directly supported that result.

As Justice Antonin Scalia put it in 1987, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Not only did the court in 1950 read into the tort claims act an exception with no textual support; subsequent decisions broadly construed Feres’s scope so that it is virtually impossible for service members to recover damages from the government for almost any negligence or other misconduct they suffer while serving. In the process, Feres treats service members more harshly than any other Americans, even in contexts that are entirely analogous to civilian life — like medical malpractice claims at stateside hospitals. It would be one thing if Congress had expressly required such an unjust and unfair result. But nearly every contemporary court and commentator agrees that it did not — and that the result of the decision, in Justice Scalia’s words, has been “unfairness and irrationality.”

. . . . Why has the court held firm on a decision so widely criticized? In that same 1987 case in which Justice Scalia dissented with three other justices, the court identified three justifications. First, injuries to service members related to their military service should not be left to the vagaries of 50 different state laws but should instead be subject to a uniform federal rule. Second, Congress had already provided at least some kind of remedy to injured service members through “generous statutory disability and death benefits.” And third, tort suits arising out of military service “would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” 

Reasonable minds can disagree about the relative strengths of these policy arguments; Justice Scalia’s central point in dissenting from that analysis was that Congress had already weighed the pluses and minuses of such policy considerations when it enacted the tort claims act — and it wasn’t for the courts to second-guess its answer. “The problem now, as then,” he explained, “is that Congress not only failed to provide such an exemption, but quite plainly excluded it.”

 As Prof. Vladeck explains, the doctrine is controversial and has been hotly debated for a long time.  Several attempts to change it have failed in Congress.  For some of the arguments against his position you only need to read some of the comments already posted to his argument.  Here is one:

It may be hard to understand the justification for Feres in a medical malpractice case like this, but there are many situations in which the nature of military service is hard to reconcile with normal tort concepts. The Tort Claims Act already excludes liability for combat activities, but military personnel engage in non-combat activities that are dangerous and difficult to measure by negligence standards.

Is it negligent to subject military personnel to training that, by replicating some of the risks of combat, prepares trainees for combat? Is it negligent for the Coast Guard to send personnel on a search and rescue mission in a storm? Does it matter how many civilians may die if no rescue is attempted?  

Military personnel are entitled to compensation on a no-fault basis for service connected injuries. If that compensation is viewed as inadequate, the better solution may be to increase it rather than, as Professor Vladeck proposes, legislation to overturn Feres in its entirety.

 Here is part of another one:

Of course. That's the solution. We need more tort claims. I'm sure that will improve the quality of military healthcare. Why didn't I think of that?  

Geez. You sometimes witness why law struggles to meet reality. 

I happen to agree with the reasoning behind Feres. The military isn't going to function well if you open the government to personal liability claims from service members.  hat's a rabbit hole I don't want to go down. 

If you're a service member and something bad happens... well... you're a service member. Use the military hospital and hope for the best.

So, what do you think?

Justice Thomas argues in favor of overturning the Feres Doctrine!

I am not sure why but the Feres doctrine seems to be in the news a lot these days.  Yesterday I commented on a recent bill seeking to limit the Feres Doctrine and on the fact that the doctrine is currently part of the plot of a TV show.

Today, the news is that Justice Clarence Thomas dissented in a denial of cert with an opinion in which he argued the court should have taken on the case in order to overturn Feres v. United States.  The case is called Daniel v. United States.  Justice Ruth Bader Ginsburg also would have granted certiorari.

You can find all the relevant documents about the case here.

Unfortunately, the other important part of the story is that the Court refused to hear the case, which means it refused to reconsider the Feres doctrine.

Since there have been previous attempts to get rid of it in Congress and they have all failed, I am not too hopeful in the future of the recently proposed bill. If there was going to be a change, this now rejected case was the best chance.

Another attempt to eliminate (at least part of) the Feres Doctrine

As you might remember from your first semester Tort Law class, the Feres Doctine refers to the interpretation given by the Supreme Court in a case called Feres v US to an exception to the Federal Torts Claims Act.  According to the exception, members of the military can not sue the federal government for injuries suffered while in active duty.  In Feres, the Court expanded the interpretation of the exception to essentially ban any claim for any injury under any circumstances while the plaintiff was in service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.

This is a controversial doctrine, and there have been many calls to eliminate it.  But all the attempts to do so have failed.

The TortsProf blog is now reporting that there is a new push afoot.

A bipartisan bill that would overrule the Feres Doctrine has been introduced in the House of Representatives.  The bill would create an exemption to the Federal Tort Claims Act to allow plaintiffs to file medical malpractice lawsuits for injuries that occur after the bill's passage.  However, the bill would have no impact on those instances of medical malpractice that occur during combat operations, aboard ships, or at battalion aid stations. 

For more information on the debate related to the Feres Doctrine, you can watch this old video.  And for some of my posts on it go here, here, here, and here.

Interestingly, the Feres Doctrine is also an underlying issue in the new TV Show "The Code", in which the widow of a member of the Marines sued for wrongful death.  During the episode (episode 3, which you can watch here), a few of the characters talked about it and their explanation was actually pretty accurate.  I think the producers got a good legal consultant to help with the script.

New articles on sexual abuse at the Air Force Academy and the Feres doctrine

In the past, I have posted several stories on the Feres Doctrine, which prevents military personnel from suing for injuries while in service and, in particular, about the on going scandals related to sexual assaults on female cadets at the Air Force Academy.  A few years ago, there were a number of high profile reports on this problem, but the Academy said it would take steps to correct the situation.  Last year, the New York Times published an article that suggested the problem is still rampant. About a week ago, the NYT published another article on the same issue here (with video).    Meanwhile, over at the PopTort there is a short comment on the issue (here) which recommends an Oscar-nominated documentary called The Invisible War.  (You can see the trailer here)

Military contractors, the Feres Doctrine and The Good Wife

Last Saturday I posted a note about a recently decided case against a military contractor for injuries to soldiers from exposure to dangerous materials.  See here.  I also posted a separate note on the continued reports on sexual assaults on female cadets at the Air Force Academy and the effect of the Feres doctrine on the possible liability of the state for those injuries.  See here.

Today, the PopTort blog has posted a note that relates to both issues based on last night's episode of the TV show "The Good Wife."

Before going any further, though. let me say two things: I did not see the episode and, the reason I did not see the episode is basically because I think that show sucks.  I have seen a couple of shows in the past and all I can say is that they really need some legal consultants.  For a show about lawyers, at least in the episodes I saw, they got the law and the practice of law wrong every time; although that is not unusual when it comes to law related shows...

But I digress...

According to the PopTort, last night's episode was about a male defense contractor accused of sexually assaulting a female officer, who then sued him for civil damages.   The storyline had the contractor trying to assert absolute immunity under the Feres doctrine.  So, I might try to give this episode a try at some point this week...

On the legal question itself, as quoted by the PopTort, in a report by the Congressional Research Service:

The Feres doctrine currently does not bar suits against government contractors working for the military, although some contractors have argued that it should be extended to preclude such suits, and some commentators have asserted that the Feres doctrine leads service members to seek damages from contractors that they could not recover from the government. Contractors have also attempted to assert derivative Feres or “intramilitary” immunity, although with little success. Where a party is immune from suit, the court cannot exercise jurisdiction over the claim against it.

 Go here for the PopTort's full comment.

Sexual assaults at the Air Force Academy still a big problem

In just a few days we will begin our discussion of the Federal Torts Claims Act and, in particular, of the Feres Doctrine which prevents military personnel from suing for injuries while in service.  This doctrine has been severely criticized over the years but it continues to be validated by the courts.  One of the types of cases it has been used to block are claims by female cadets at the Air Force Academy for injuries caused by sexual assaults.  A few years ago, there were a number of high profile reports on this problem, but the Academy said it would take steps to correct the situation.  A new article in the New York Times from a few days ago suggests the problem is still rampant.  Go here to read the full article.  For more information on the Feres Doctrine go here.  my posts on issues related to the Feres Doctrine go here. 

Possible attack on the Feres Doctrine before the US Supreme Court?

Alan Crede of the Boston Personal Injury Blog is reporting (here) that the US Supreme Court may hear yet another case attacking the Feres Doctrine in a new case in which an Air Force officer was killed as a result of medical malpractice in a military hospital. For more information on this case go here for a report by the Associated Press. For my previous posts on the Feres doctrine, including some news videos, go here, here, here, here and here. For all my previous posts on torts issues related to members of the military go here.

Should soldiers be allowed to sue private companies for injuries suffered during military service?

Last year, I posted a number of comments and updates on the Feres Doctrine which provides immunity to the government for injuries suffered while in the military. (Go to the "military/veterans" section of the blog for all the posts on this topic.) A new lawsuit filed recently will test the extent to which the doctrine should also protect private companies that work under contract with the government in war zones around the globe. The lawsuit was filed by a group of Indiana National Guardsman who allege that a mission to help clean up a water treatment plant in southern Iraq left them with fatal illnesses. The lawsuit argues that oil company KBR Inc. "disregarded and downplayed" the fact that the site at Qarmat Ali was coated with the hazardous chemical sodium dichromate and that, as a result, the soldiers suffered "unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man." In products liability cases, courts have consistently held that government contractors are protected from liability if they can show that the product in question was manufactured following specific specifications requested by the government. It will be interesting to see if the court in this case follows this line of cases or creates a distinction. Go here for the full story.

Mother sues federal govt for letter that suggested her son had died in Iraq

The Minneapolis Star-Tribune has an interesting story about a Duluth woman who has sued the federal government for emotional distress because a letter that she wrote to her son stationed in Iraq was returned with the word "DECEASED" stamped on it. Fortunately, the mother was able to contact her son and quickly confirmed he was unharmed. For more on the story go here and here. There are a couple of interesting things about this story. First, it is not clear whose conduct is at issue. Obviously, someone stamped the letter with the word "deceased" by mistake, but it is not clear if it was an employee of the US Postal Service or someone in the military. Second, it is not clear to me whether the claim is barred by the exceptions to the Fedral Torts Claims Act. If the mistake was made by the USPS, the court will have to determine if the claim is barred by the exception that retains immunity for cases arguing injuries caused by the negligent handling of postal matters. If it was the military who made the mistake, the court may try to apply the infamous Feres doctrine which bars recovery for injuries incident to military service - although typically the doctrine applies to cases where the plaintiff is a member of the military.

Report on the Feres Doctrine

A week ago, I posted a story about a recent medical malpractice claim negated by the Feres Doctrine. See here. Today the PopTort Blog published a report/update on the Feres Doctrine, here.

Military medical malpractice negated by Feres doctrine again

Prof. Jonathan Turley is reporting today on another military medical malpractice case and what he called (and I agree) "another reason for Congress to legislatively negate the infamous Feres doctrine." In this case, Airman Colton Read, 20, went into the David grant Medical Center at Travis Air Force Base near Sacramento for a simple gallbladder operation — only to end up a double amputee due to malpractice. For the full story, go here.

Bill to Partially Overrule Feres Doctrine Approved by House Judiciary Subcommittee

I have posted numerous notes on issues related to claims by armed forces service members (see here). Of particular interest are the links to stories on the recent efforts to change the law that prevents members of the military to recover for most injuries suffered while in service regardless of the negligence of the government. Today, the TortsProf Blog is reporting that the House Judiciary Subcommittee on Commercial and Administrative Law approved a bill to allow armed services members and their families to sue for negligent medical care. The full House Judiciary Committee is expected to consider the bill by the end of July. For the full story and a couple of links go here.

Update on the Feres Doctrine

The PopTort blog has published a comment on recent developments regarding the application of the Feres Doctrine to medical malpractice claims. The title of the comment is "Rampant Medical Malpractice in Military Hospitals - The Real Impact of Immunity" and it is available here.

Comments on the Feres Doctrine

The Feres Doctrine prevents military personnel from suing the government for injuries that occur in service — even in peacetime. There is a good deal of literature and criticism on this subject. Here is a link to a comment by Jonathan Turley which includes useful links to other sources including videos. Last year, the doctrine got some attention from CBS news when it covered the story of a young marine who died of cancer after he was misdiagnosed by a government doctor. Here are two videos of the CBS stories on the case (after short commercials). The stories mention an attempt to pass legislation to eliminate, or at least amend, the Feres Doctrine. To check the status of the proposed bill go here.

Last March, Congress held a hearing to discuss possible legislation that would reverse the Feres Doctrine. The Congressman who proposed it told the panel the bill was needed to give soldiers the right to sue for medical malpractice that all others have. Here is a CBS report: