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Feres-Making Second Class Citizens of Active Duty Service Members

February 7, 2012

Although the United States Government is constantly saying how much they value their active duty soldiers, their actions don’t always match their words. When it comes to medical negligence claims against the United States, active duty soldiers take a back seat to everyone else. A civilian family member or veteran can bring a claim if they are the victim of medical malpractice. Not so if you are an active duty service member.

In 1950, the Supreme Court decided the case of  Feres v. United States, expanding the language used by Congress in the Federal Tort Claims Act and prohibiting an active duty service member from bringing a claim against the United States, no matter how egregious the negligence. It was judicial activism at its worst, it was wrongly decided and it clearly expanded what Congress intended. There have been attempts to change this and reinstate an active duty service members rights in the past.  Unfortunately, Congress has failed to do the right thing and, as a result, soldiers have suffered.

To add insult to injury, the Department of Justice (DOJ) is now arguing that this judicially made doctrine should be expanded. In two separate Florida cases, the DOJ wants the court to further expand Feres. In separate wrongful death cases, they are arguing that  when a spouse of an active duty service member is killed, he cannot bring suit because he is now the plaintiff. A similar position has been taken in previous cases as well. An active duty service member gave birth and, because of negligence, her baby suffered from cerebral palsy. The government argued that the injury was really to the mother and, because she was on active duty, the claim could not be brought. This wrongheaded and callous position by the DOJ seeks to further erode the rights of service members. It must be stopped and, one way to do this is to call or write your Congressman and Senator. As a former active duty service member (I spent a little over 5 years in the Army Judge Advocate General’s Corps), it makes me angry to see such an unfair position being taken. I urge each of you to stand up for your rights.

If you have any questions about this topic or have been the subject of medical negligence, please feel free to contact me at kprotil@shulmanrogers.com or (301)230-6571. Karl Protil

To view an in depth article on the topic, published by The Atlantic please click here