House Judiciary Committee Votes to Undermine Feres Doctrine

Bret Hanna

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The Feres Doctrine, derived from a 1959 U.S. Supreme Court decision, precludes active duty military members from suing the government for medical malpractice regardless of where or how the malpractice occurred. Yesterday, in a 12 -14 vote cast along strict party lines, Democratic committee members voted to remove the ban allowing active duty military to sue for malpractice in non-combat situations. If the bill passes into law, the ban will remain in effect for malpractice which occurs in combat situations. It is expected that the full House will pass the bill.

The bill was debated for an hour before the vote, with opponents claiming that passage will increase health care costs by 2.9 billion over 30 years. Republicans also claimed that the bill is simply a boon for trial lawyers.

Supporters of the bill highlight that allowing the suits at issue to move forward is simply a matter of fairness. Family members of active duty military can currently sue if they are the victim of malpractice by a military doctor or at a military facility, but this bill confers that right, enjoyed by every other American, on those who are actually serving the country when they are vicitimized by medical negligence.

The bill was filed by U.S. Rep. Maurice Hinchey, D-N.Y., because of the tragic case of Marine Sgt. Carmelo Rodriguez. Sgt. Rodriguez's cancer was misdiagnosed as a boil by several military physicians. He died at his upstate New York home in 2007. But there are other cases which highlight the inherent unfairness of the Feres Doctrine. I recently blogged about the case of Sgt. Adele Connell, a Utahn who is the victim of a botched breast cancer surgery at Walter Reed Army Medical Center. The conclusion I reached after I looked at Sgt. Connell's case is the same I would reach today - basic notions of fairness dictate that the Feres Doctrine disappear into the annals of military history.