A System of Medicine without Accountability – the Feres Doctrine
By Rawls McNelis + Mitchell on April 30, 2015
Normally, my blog posts relate to the medical care provided by the Department of Veterans Affairs. However, I will touch on a different topic today. That topic is the medical care provided to active duty military personnel. I’ve always been troubled by the medical care active duty service members receive. However, this is not because I think that all military providers are, as a general matter, inferior to their civilian counterparts. I met and served with some caring and talented medical professionals during my time in the service and I would never detract from the good those providers accomplished. My issue is with the system as it exists – a system that largely operates outside the accountability created for all other medical providers by tort law. I was reading a blog on the nature of the military medical system this morning, and that blog opines that federal law offers virtually no recourse or accountability to military or civilian providers who stray from the path in their treatment of active duty service members. I happen to agree with the author and you can read it as well by clicking here. The primary restraint on service members’ ability to sue the United States if they are victims of medical malpractice is a judicially created doctrine known as the “Feres” doctrine. The doctrine is named by after the case which formed it— Feres v. United States. In that case, the Supreme Court held that the federal government could not be held liable under the Federal Tort Claims Act (the body of statutes that permits lawsuits against the United States for the tortious conduct of its employees) for injuries to members of the armed forces arising from activities incident to military service (which can include the negligence of both military personnel and civilians). On one hand, I understand the reasoning underlying the Feres doctrine. Military service members are routinely injured in the course of duty when following the orders or directions of their superiors. To have each of these injuries give rise to a potential lawsuit would likely lead to a flood of personal injury cases from every lawyer within a 100 mile radius of any given military post, most of which would be frivolous, and few of which could be fairly tried by a civilian tribunal unfamiliar with the intricacies of military operations. Moreover, the military works because of the very simple premise that soldiers follow lawful orders. Period. End of story. Whether wise or unwise, soldiers are trained from day 1 to follow lawful orders without question because lives may very well depend on unquestioned compliance in situations where every second counts. Can you imagine the Army functioning correctly in a universe where privates were allowed to sue their drill sergeants for negligent infliction of emotional distress? As a former drill sergeant, I can say that I am personally thankful that was not the Army I joined. But my understanding and sympathy for Feres comes to abrupt end when the doctrine is used to protect negligent medical care by military providers. Note that I am not talking about medical care rendered in a combat situation or even emergency care needed in a training environment in which a service member is unexpectedly injured and military providers need to make a split second call in enormously stressful conditions. Again, I can understand why Feres should apply in those circumstances. If someone sustains a gunshot wound to the leg in the middle of a firefight, you should not be able to sue the military provider for applying a tourniquet to stop the bleeding even if, in hindsight, the tourniquet was not needed and that negligence resulted in the loss of the limb. It’s a tough choice in a tough situation and we do not want to compromise the ability of military providers in those situations to make fast (and potentially lifesaving) decisions about care because they want to pause and read an article as to what the standard of care treatment would be for that injury. The medical care I’m talking about is the regularly scheduled medical care performed in a garrison environment. This is medical care in which there is no element of “military judgment” at play. The only difference between the military provider and a civilian provider in those circumstances is the military provider wore fatigues to work that day and his or her patients don’t (as a practical matter) have a choice about accepting their services. I can personally attest to this situation. I was required (I underscore, required) to allow a military dentist to perform work on my teeth that I personally did not want without first speaking to a civilian dentist (even then I was dubious of military medical care). However, when I questioned the dentist (who, at the time, was a major) about having the work done, I was told (in substance) “you don’t have a choice, private.” And so, I did what most soldiers in the situation would do, I said “yes, sir” and got in the dentist’s chair. Now looking back as a civilian and a lawyer, I have a new word for that dental work, it’s called battery. Fortunately, I did not have any issues from the unwanted dental work, but what if I had? What if the dentist had worked on the wrong tooth, recklessly damaged a nerve, or needlessly passed an infection from unsterilized equipment? Insulating the dentist (and the United States) from accountability (and simultaneously depriving the patient of appropriate compensation) in such a scenario would not serve any purpose other than excusing poor care and allowing a potentially incompetent provider to harm other soldiers through substandard care. Sadly, multiple challenges regarding the Feres doctrine have been made to the Supreme Court since the creation of the doctrine, none of which have yielded real success in limiting the doctrine to an appropriate scope. There has been some equivocation by the Court to the tune of Feres must be examined in a case by a case scenario, but this is not the sort of holding that empowers service members to pursue claims for needed relief or incentivizes lawyers to accept those cases. The end result is a system of medical care that runs relatively unchecked and which primarily services a population who deserves to have it strictly held to the highest standards. So, this likely begs the question - if you are an active duty service member injured by the negligent acts of military providers, what are your options? They are limited. Your first step is to consult with an attorney who is familiar the parameters of Feres and see if there is some argument that your particular case falls outside the doctrine. I stress these are very technical legal questions that should be entrusted to a lawyer with significant research and/or practice experience on the Feres doctrine. Also, it is important to understand that the doctrine applies to service members, not their civilian family members. Thus, for example, a service member’s spouse injured by negligent medical care would still likely be able to sue the United States for the medical negligence of a military provider that directly harmed the spouse. We are committed to representing veterans, active duty service members, and their families who are injured as a result of government employees’ negligence. Please do not hesitate to reach out to us with your questions or concerns, we are always here and willing to help provide as much guidance as we can and, if warranted and necessary, seek legal relief on behalf of our clients.