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Feres Doctrine Revisions Fail to Protect Servicemembers

The Law Is Unfair at Its Root—and Recent Revisions Don’t Do Enough to Help

Those who sign up to serve in our armed forces are prepared to make the ultimate sacrifice for our country. In return, we ought to offer them the best care and protection possible. The Feres Doctrine, which stemmed from the Supreme Court Case Feres v. United States, bars military members from filing a lawsuit if they’re injured while on active duty. This decision protects the government from facing civil claims filed by those hurt in battle—but it also prevents anyone who’s been harmed by the actions of other military members from recovering compensation.

A Perversion of Intentions

After a barracks fire killed Lieutenant Feres, a veteran of the Battle of the Bulge, his wife attempted to sue the army. She alleged the boiler that exploded in the lead-up to her husband’s death was known to be faulty and, furthermore, the army had failed to appoint a fire guard the night of the incident. Her lawsuit was the first of its kind and set a heartbreaking precedent.

The right to sue the government for personal losses was rather new when she filed her suit in 1950. After thirteen people died when a B-25 Army bomber crashed into the Empire State Building in 1945, their loved ones had no recourse. The federal government would have to pass a law to allow a case to be filed against them—and they would have to do this for every single suit someone tried to bring.

In 1946, Congress passed the Federal Tort Claims Act, which allowed anyone to bring a civil suit against the government. The act did specifically prohibit troops from collecting compensation for injuries caused by combat. It did not bar suits for other harms suffered while in the military. Unfortunately, a Supreme Court decision denied servicemembers that right.

Broad Interpretations of the Feres Doctrine Fail to Protect Military Members

The court’s decision in Feres set the stage for the denial of other suits filed by and about troops before they were even heard. Courts have interpreted a phrase from the original decision—stating that any injury “incident to service” was not cause for a lawsuit—to turn away cases including:

  • Deliberate exposure to radiation during nuclear tests
  • Performing LSD experiments on unwitting subjects
  • Rapes and assaults by fellow soldiers
  • Attacks by army civilians
  • A towel being left in a soldier after surgery
  • The death of a mother during childbirth that was likely due to malpractice

None of these cases are in any way linked to the dangers of combat, and all of them include harms that would justify a civilian’s personal injury suit. It is simply the venue of this wrongdoing that bars the victims from being able to ask for recompense.

Changes Are Coming—but They’re Not Enough

The 2020 National Defense Authorization Act, largely a funding bill, contains a clause that would allow servicemembers to file medical malpractice suits against any military healthcare provider whose gross negligence harmed them. If passed, which is likely, the bill would still restrict claims due to the specifics laid out therein:

  • The Department of Defense, rather than the federal court system, will hear and decide cases
  • Only cases filed in 2017 or later will be eligible for consideration
  • Damages cannot go beyond those directly caused by the malpractice (which is in contradiction to tort law used in courts)
  • The government will not be liable for any attorney’s fees
  • Attorneys are limited in the percentage they may ask for as payment for their work

Aside from potentially limiting the number and caliber of attorneys willing to take these cases, the conditions only allow compensation for a narrow range of non-combat damages, leaving many veterans and their families without help.

The Feres Debate Continues

Since its initial introduction, the Feres Doctrine has been heavily debated by courts and lawmakers. Many hold that the rule goes against the intentions of the 1946 Federal Tort Claims Act; others point to the inconsistencies between the Feres Doctrine and other tort law. The changes included in the National Defense Authorization Act are a step toward reconciling military members’ rights with those of the rest of the country, but still bar a large number of cases that would be admissible in different circumstances.

Those who serve have their opinions too: on the pro-Feres side, some argue that veterans are compensated for their service and risks with many benefits after their discharge. They think allowing lawsuits for medical malpractice, but not combat injuries, would put veterans on an uneven playing field. On the other hand, servicemembers argue, they are at enough risk from combat. And, they say, holding people accountable might cut down on malpractice and result in a decreasing number of injuries.

We are watching the National Defense Authorization Act closely, as well as other efforts to reform and/or dismantle the Feres Doctrine. Servicemembers deserve the best support we can give them. Right now, America is neglecting their right to recompense.

We’re proud to support our troops and will continue to advocate for the reversal of the Feres Doctrine. Anyone interested in learning about their rights to sue for injury can contact us online or call (410) 698-1717 to speak with our team.
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