Supreme Court Declines To Hear Military Medical Malpractice Case

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WALTER DANIEL, a former Coast Guard officer, holds a photograph of his wife, Navy Lt. Rebekah Daniel, known as “Moani.” She died hours after giving birth to their daughter, Victoria, at the Naval Hospital Bremerton. Daniel says he received no details about how the low-risk pregnancy of his healthy 33-year-old wife, a labor and delivery nurse, ended in tragedy. (Heidi de Marco/KHN)

Justices won’t alter the rule that prevents active-duty military mem- bers from suing the government for negligence. The challenge came from the family of Navy nurse Lt. Rebekah “Moani” Daniel, who died in 2014 after bleeding to death following childbirth.

By JoNel Aleccia

The family of a young Navy nurse who died after military doctors allegedly failed to halt massive bleeding following childbirth won’t get a hearing in the nation’s highest court.

The Supreme Court recently denied a petition that sought to change what’s known as the Feres doctrine, a long-standing rule that bars active-duty military members from suing the federal government for injuries, including medical malpractice.

The justices declined to discuss the case of Navy Lt. Rebekah “Moani” Daniel, who was 33 in 2014 when she died following a massive postpartum hemorrhage at the Naval Hospital Bremerton, within hours of the birth of her daughter, Victoria.

In court documents, Justice Ruth Bader Ginsburg said she would have granted the petition. Justice Clarence Thomas dissented from the decision, arguing that it was up to the court to reconsider the rule in the absence of a decision by Congress. He noted that the court in recent rulings “twisted traditional tort principles” to allow certain veterans to seek damages for negligence.

“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,” he wrote.

Through a lawyer, the nurse’s widower, Walter Daniel, and her daughter, Victoria, now 4, argued that the court should amend the 1950 ruling to allow service members to sue for medical malpractice the same way civilians can.

“Sadly, the justice system remains closed to our family, our colleagues and the families who commit their lives to military service,” Daniel, 39, said in a statement. “Victoria and I won’t have the opportunity to learn what led to Moani’s death, and to ensure others don’t experience the same tragedy.”

Andrew Hoyal, Daniel’s lawyer, said he was “clearly disappointed” at the decision but heartened at the responses from Thomas and Ginsburg.

“We knew from the beginning that this would be a long journey with even longer odds,” he said.

Rebekah Daniel died on March 9, 2014, at the Washington state facility. In a 2015 wrongful death lawsuit, her husband claimed that she died from botched medical care that failed to halt hemorrhaging of nearly a third of the blood in her body.

Daniel, a former Coast Guard officer, disputed the findings of a Navy autopsy that concluded Rebekah Daniel died of “natural” causes possibly linked to a rare, hard-to-prove complication of childbirth.

But that lawsuit and subsequent appeals were dismissed not based on the facts of the case but because of the Feres doctrine, which holds that active-duty members of the military can’t sue under the Federal Tort Claims Act for harm that they incur “incident to service.”

The ruling was last challenged in the high court more than 30 years ago when the justices voted 5-4 to uphold it. That decision drew a scathing dissent from Justice Antonin Scalia, who declared the rule should be scrapped. More recently, Justice Thomas also argued it should be amended.

Since then, however, the court has refused to accept two previous petitions that would have allowed reconsideration. The Daniel request beat the odds. Of the 7,000 to 8,000 cases submitted to the Supreme Court each term, only about 80 are accepted.

Congress has considered amending the Feres rule in the past but stopped short of action. In April, Rep. Jackie Speier (D-Calif.) introduced H.R. 2422, which would allow active-duty service members to sue the government for damages caused by medical malpractice. The bill has been referred to the House judiciary committee.

Daniel said he would continue to work with lawmakers and advocates to change the rule.

“Our case and our fight is over — but it continues for other service members. Moani’s story has generated a groundswell of momentum to correct the injustice of Feres, and now this issue is going all the way to Capitol Hill,” the statement said.

JoNel Aleccia is a Senior Correspondent focused on aging and end-of-life issues on the KHN enterprise team. Before joining KHN in November 2016, she was a health reporter for more than a decade, covering regional and national news at outlets including The Seattle Times, NBCNews.com, TODAY.com and MSNBC.com. Before that, she was a reporter, editor and columnist at newspapers in the Northwest. JoNel was a member of reporting teams that won National Press Club Awards for digital journalism focused on the Great Recession and on amputees in the 2010 earthquake in Haiti.

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1 COMMENT

  1. Not surprising to me because every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. Be aware that Feres also protects the US military from legal malpractice by its own incompetent – and many times unethical – military lawyers.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.

    When I asked the top lawyer (then Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar. Lying to your licensing state bar is grounds for permanent disbarment. The state bar clearly acknowledged that the US Army lawyers were wrongfully “protecting” Fitzgerald and if they were not, the state bar would take action.

    I then sued in federal court. It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald since got promoted TWICE as an Army lawyer. Feres was NEVER designed 60 years ago as this kind of “protection.” Today it protects against everything to include corruption, misdeeds, and even cover-ups by US Army lawyers wearing stars on their shoulders.

    Fitzgerald became a prosecutor and sent people to Fort Leavenworth prison for violations LESS than what he is clearly guilty. Lying to the feds is a crime punishable by prison. You don’t believe that? Look at what happened with what Robert Mueller has done in 2018 and 2019.

    Go to the link https://www.facebook.com/people/Feres-Doctrine/100011369043077 and you will see it all. Thank you.

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