A two-and-a-half-foot-long towel left inside a man for eight months; a soldier burned alive in his barracks due to a defective heating plant; a serviceman killed by negligent surgeons. What do these cases have in common?
The answer: they were cases before the Supreme Court in 1950 when it ruled that the US government cannot be sued by members of the armed forces for injuries they suffer incidental to their service, even when they happen outside of combat.
Now known as the Feres Doctrine, this principle has prevented tens of thousands of active-duty service members killed or injured by others from recovering in court, whether they were injured through malice or mere carelessness. Under Feres, these soldiers are barred from suit even where a civilian under the exact same circumstances could sue for damages without a problem.
Over the decades, the Feres Doctrine has been applied to bar recovery in cases involving training mishaps, on-base car accidents, and even in cases involving sexual assault.
On September 7, 2016, army nurse First Lieutenant Katie Blanchard was doused in gasoline and lit on fire by a deranged civilian contractor who worked under her supervision. The contractor then attempted to stab her with scissors and a straight-edge razor, but was wrestled to the ground by a co-worker. For months prior to the attack, Blanchard had repeatedly warned her supervisors that the contractor was dangerous, but they declined to fire him. Blanchard has since undergone more than 100 surgeries, and has burn scars over her face and over the top half of her body. Based on past cases, the Feres Doctrine would almost certainly prevent Blanchard from suing the government for negligently keeping the contractor on payroll.
The doctrine’s effect is perhaps most widely felt in the area of medical malpractice, where it bars service members from recovering against the government for injuries caused by negligent military health providers. The stories are seemingly endless. Air Force Staff Sergeant Dean Witt, for instance, was hospitalized for appendicitis. After a routine surgery, he was mistakenly transferred to a children’s unit, administered a lethal dose of fentanyl, then left with an improperly inserted breathing tube; he suffered severe brain damage, then eventually died after months on life support. The Feres Doctrine barred his widow from suing the U.S. government.
On May 20, nearly 70 years after the doctrine was established, the Supreme Court declined to take up a case challenging the Feres Doctrine, Daniel v. United States. Writing in dissent from the court’s denial of certiorari, Justice Clarence Thomas wrote:
“’Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received’…. Such unfortunate repercussions—denial of relief to military personnel and distortions of other areas of law to compensate—will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres.”
With the Supreme Court unwilling to act, service members are pushing for Congress to overrule the Feres Doctrine by amending The Federal Tort Claims Act directly; a reform that’s long overdue.