Obama Administration Making it Harder for Military Families to Sue for Medical Malpractice

Thursday, February 02, 2012
In defending the U.S. military’s medical system in court, the U.S. Department of Justice is arguing that service personnel and their families are not allowed to sue for medical malpractice regardless of the circumstance.
As a general rule, military members are barred from taking the government to court, which has been established in several court cases, in particular the 1950 Supreme Court decision in Feres v. United States. But now government lawyers are trying to expand the scope of Feres to make it impossible for families of soldiers to sue for medical malpractice, if at the time of the bad care the service member was on active duty.
“This is a whopper of a theory and it immediately raised the hackles of attorneys who practice in this field,” wrote Andrew Cohen for The Atlantic. “Now, all of sudden, family members of military personnel can't sue the U.S. for negligence because their loved ones are on active duty?”
Eugene Fidell, an expert in military law at Yale University told the Military Times that the Feres Doctrine was not intended to protect military hospitals sued by civilians. “If the government can plausibly take a position like this, something is basically wrong,” said Fidell. “The outcome the government is arguing for is intolerable. If the government wins this motion, Congress has to step in.”
-Noel Brinkerhoff, David Wallechinsky
To Learn More:
U.S. Seeks New Limits on Troops’ Legal Rights (by Andrew Tilghman, Military Times)

Military Personnel Not Allowed to Sue for Medical Malpractice (by Noel Brinkerhoff, AllGov) 


Jeffrey Ziegler 8 years ago
every time i see a post on the feres doctrine, it makes the hairs on the back of my neck stand up. i should know because i have been down that same road too. be aware that feres also protects the us military from legal malpractice. while i was on active duty with the us army, i was threatened by a us army lawyer named captain matthew fitzgerald to do something which was contrary to the us army legal regulations (which i did not know at the time but he did). fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which i later got a copy. this threat resulted in my losing over $50,000 of my personal funds. when i asked the top lawyer (now lieutenant general dana chipman) for assistance, the first thing they did was appoint fitzgerald’s previous boss and a very obvious friend to “investigate.” since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the privacy act , i filed the same complaint with fitzgerald’s oregon state bar which is not protected under privacy laws. evidence showed that fitzgerald lied no less than 10 times to his oregon state bar. it was all thrown out of federal court due to feres although i had a slam-dunk case with all evidence in my favor. in fact, i was never even able to get into court and present my case. the judge simply had his law clerks cut-and-paste a previous reply to a previous case. just to add insult to my financial injury, fitzgerald got promoted to major. feres was never designed 60 years ago to protect against torts, corruption, misdeeds, and cover-ups by us army lawyers. today it protects against everything.

Leave a comment