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Congress Fixes Feres Doctrine... Not Really

The 2020 National Defense Authorization Act (NDAA) contains a provision that addresses medical malpractice claims by active duty service members. The House passed the bill on December 11, 2019 and it is expected that the Senate will do the same in the next few days. The bill is almost 3500 pages and includes a section addressing medical malpractice claims by active duty service members.


In the last year, there has been a good bit of talk about the so-called Feres Doctrine. Almost 70 years ago, the United States Supreme Court interpreted the Federal Tort Claims Act (FTCA) to the effect that it did not apply to active duty service members. That is, of course, nowhere in the actual language of the FTCA statute. Regardless, one serious impact of this doctrine is that members of our military have no recourse when they experience medical malpractice at the hands of military healthcare providers.


Earlier this year, the Supreme Court declined to review an appalling case where a Navy nurse died during childbirth. Ironically, she was an OB nurse. Attention then turned to getting Congress to correct the problem legislatively. Finally, the effort seemed to gain some traction. Bills were circulating that, with some reasonable limitations, would have permitted service members to bring FTCA claims for medical malpractice.


The final product in the NDAA is a huge disappointment, however. It allows service members to make a claim, but it gives them no ability to file a lawsuit in any court. At best, you can say it is “something,” but that is not saying much.


We deal with FTCA cases all the time. We have done so for more than 20 years. Filing a claim with the agency, including the branches of the Armed Services, is no guarantee that anyone will act on it appropriately or in a timely manner. In fact, our experience is that in the majority of cases, claims are not addressed timely or appropriately. However, in these cases we can go to court – and we can at times use the threat of going to court – to get our clients an appropriate recovery.


Active duty service members will have no such recourse. The military lawyer handling the claim will be in no hurry. Experience tells us this will be a problem. All of the branches can be described as dilatory – and that is being kind. For example, we have had one small claim pending with the Army for well over three years with no decision. Even when they do get to it, the military lawyer (and his or her chain of command) will be the determiner of whether or not there is liability. If there is liability, they decide the value. Don’t like the decision? Tough luck. There is no recourse.


For overseas military dependents, such a system has been in place for a long time, the Military Claims Act (MCA). We have handled MCA cases and what I described above is exactly how it works. It is grossly unfair to family members and there is no reason to think it will be any less unfair to the actual service members.


If government agencies have no check on being dilatory or unreasonable, then a major incentive for them to be prompt and fair is simply removed. Even having the recourse of being able to go to court only has a limited impact on the handling of FTCA claims. My prediction is that most of the active duty claims will disappear into a black hole. A few may get resolved – for pennies on the dollar as to what they would be worth in an FTCA case.

Our legislators can pat themselves on the back for helping out those who put their lives at risk to defend us. Too bad they lacked the backbone to do something that actually might have mattered. Feres is gone, but its “fix” is a charade.