Friday, November 29, 2013

Unfair Feres Doctrine Bars Wrongful Death Suit for Soldier's Baby

Unfair Feres Doctrine Bars Wrongful Death Suit for Soldier's Baby
By Anne C. O'Donnell of FindLaw
November 8, 2013

"We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long," wrote Judge Nguyen of the 9th Circuit Court of Appeals in the case, Ritchie v. United States.

The doctrine to which she is referring is known as the "Feres doctrine." Under this doctrine, the government is not liable for injuries to members of the military service arising out of, or in the course of, activity incident to service. It originates from a 1950 case, decided by the U.S. Supreme Court, which actually involved three different claims against the government:
-The wrongful death of an active service member who died in a fire in barracks allegedly known or which should have been known to be unsafe;

-A medical negligence claim alleging that an army surgeon left a towel 30 inches long by 18 inches wide in a soldier who underwent an abdominal operation; and

-The wrongful death of an active service member who died due to negligent medical treatment by army surgeons

The Federal Tort Claims Act waives the federal government's sovereign immunity, allowing it to be sued just as a private individual would be. The Feres court carved out a judicial exception to this rule, by holding that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service."

This principle was extended to include claims brought by third parties, which derive directly or indirectly from injuries to service members incident to military duty.

The Feres court and its progeny assert three policy rationales for this rule: (1) the government should not be subject to liability based on the fortuity of the situs of the injury; (2) there are alternative compensation systems available; and (3) the fear of damaging the military disciplinary structure.
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