[March 21, 2020] Sabbatical update: For obvious reasons, I am home, and not in Africa. Thanks to my wife who booked my return journey from Windhoek to Boston. Stay tuned for a return to normalcy. Meanwhile, #QuarantineLife.

Monday, November 11, 2019

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)
The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.


Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)

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