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Military May Face Challenge to Long-standing Malpractice Shield

Critics of the long-standing and widely unpopular ban against military medical malpractice cases are closely watching a case positioned to challenge the law before the Supreme Court.

The law, referred to as the Feres Doctrine, effectively equates injuries from medical mistakes with battlefield wounds.

The Witt Case

As reported by Sign on San Diego, the U.S. Supreme Court has asked for more information from attorneys and will decide next month whether to hear the case of a 25-year-old noncommissioned officer who died after a nurse put a tube down the wrong part of his throat.

Although the nurse admitted her mistake, federal courts denied the legal claim by Witt’s widow, saying their hands were tied by the Feres Doctrine. Witt’s family appealed, aiming to help other service members who get hurt in military hospitals.

The History of the Feres Doctrine

Opponents of the Feres Doctrine, including veterans groups and military families, argue that the Federal Torts Claim Act of 1946, from which the law is derived, was never intended to deprive servicemen and women of a legal remedy for medical malpractice claims.

In fact, the Torts Claim Act was first narrowly interpreted to only prohibit lawsuits for combat-related injuries and deaths. However, in Feres vs. United States, the Court widened that exclusion to bar any lawsuits over injuries “incident to military service” in denying a lawsuit involving a soldier who died in a barracks fire.

The Debate

Feres supporters claim that abolishing the doctrine would be too costly for the federal government. However, as pointed out by Rep. Maurice Hinchey, D-N.Y., who led a Congressional effort to overturn the law, the cost would lower because the law would result in a better level of care in military hospitals and fewer negligence claims.

“If there were a normal element of responsibility, there would be less carelessness,” Hinchey said.