“Every person in the United States of America, even illegals, even inmates, can sue for malpractice insurance. The only people in the U.S. who can’t sue for malpractice insurance are our soldiers. This is discrimination against a certain class of people — the military,” – Natalie Khawam, an attorney who is representing SFC Richard Stayskal, a 37 year-old Green Beret and father of two daughters, who is dying from stage IV lung cancer misdiagnosed by Army doctors and allowed to go untreated.
Feres v. United States, a 1950 Supreme Court decision established a precedent known as the “Feres Doctrine” which prevents active duty military personnel from suing the government for injuries under the Federal Tort Claims Act sustained as a result of military service. Feres does not apply to civilian dependents of military members or Department of Defense Civilians. Feres effectively bars members of the military for collecting damages from the United States for injuries experienced in the performance of their duties. But, the case has farther reaching results that are hard to justify. “Suppose you had two sisters. One was on active duty and the other was a military dependent. Both of them give birth in adjoining rooms at the same military hospital [by the same doctor]. Both are victims of malpractice. One can sue and the other one can’t. How can that make sense?” Asks Professor Eugene Fidell. Feres combined three cases then pending before United States Federal courts, Feres, Jefferson and Griggs. Feres involved the death of a soldier in a barracks fire due to alleged negligence. Interestingly, Jefferson and Griggs both involved claims of medical malpractice against Army surgeons. The Plaintiff’s claims in Jefferson v. United States, 178 F.2d 518 (1949) are pretty shocking. While in the Army, Jefferson received an abdominal surgery at Fort Belvoir, Virginia. Eight months later, in the course of another operation after he was discharged, surgeons discovered a 30-inch-long, 18-inch-wide towel, marked “Medical Department U.S. Army,” in Jefferson’s stomach. Jefferson of course alleged that it was negligently left there by the army surgeon. He sought $7,500.00 in damages.
The husband of a woman who bled to death during childbirth is challenging Feres. He has asked the U.S. Supreme Court to overturn the 69 year old ruling. In his case, Walter Daniel argues that the military health system has changed substantially since the initial Feres ruling, and the development and expansion of the non-combat military health care mission – including treating dependents and hiring thousands of civilian health care providers — makes the ruling “unjustifiable.” “The only difference in the two groups is that a member of one group has a uniform hanging in the hospital room while the other does not,” – Walter Daniel.
These are not the first challenges to the Feres Doctrine. There have been several cases before the Supreme Court over the years and at least two bills before the U.S. House of Representatives attempting to address the obvious injustice of denying military members the ability to seek compensation for medical negligence. Veterans and service members should make themselves heard on this issue. Here’s wishing Walter Daniels good luck!