Without a doubt, we need military families. Officers and soldiers have tough jobs defending the rest of us, so it is as clear as day that we should generally do what we can to make their lives easier. Part of that is permitting their families to travel the world with them. Part of it is including medical care as part and parcel of the benefits they receive for, among other things, risking their lives for us. Part of it should be taking care of them when military doctors cause injury. But, it is not always the case.
Enter the Feres doctrine. Feres is an old case which is derived from laws that existed when we were mere colonists under the rule of the English. It holds that basically that the Crown (king) can do no wrong and should be immune from suit. The rule has certainly been eroded—there are successful lawsuits against the government all of the time. However, some courts unfortunately prevent recovery when a military doctor hurts a military family.
In one circumstance, the family of a baby who was starved of oxygen during labor and who was born with cerebral palsy and brain injuries, has been denied the right to recover. Born to a military mother in a Colorado army hospital, baby Ortiz was injured because doctors gave her mother Zantac to ease an upset stomach. The mother, who was clearly allergic to Zantac (this was noted throughout her medical records), showed signs of an allergic reaction. The military doctors then gave her Benadryl, which caused her blood pressure to plummet, and resulted in low levels of oxygen to the baby.
The civilian father filed a lawsuit against the United States, which was dismissed by the trial court. An appeal to the 10th Circuit was likewise unavailing. A key issue here is the fact that the mechanism of injury was through the treatment of the military mother. Zantac was meant to treat her, not her baby. The baby’s medical problems resulted from the mother’s reaction to medical treatment. It did not matter to the courts that mother and baby are inextricably linked before delivery, and should be treated as a single unit. After all, what affects one will affect the other.
The result would likely be different if the facts were tweaked. If the mother was a civilian married to a military husband, the family would usually be permitted to try their claim. If the cause of injury was different—say for example, a shoulder dystocia injury, it is also likely that the family could recover.
But, that’s small comfort to the father and mother of baby Ortiz, who will forever be concerned about her welfare and chance for independence. The Feres doctrine, if it is so complicated that it requires two courts to explain it, is nothing that any military member should have to anticipate.
Medical malpractice injuries that result from treatment by military hospitals and doctors can be complicated. There is much disagreement among lawyers and even among courts about what is and what is not compensable. If you or your family suffered a military medical malpractice injury, contact our medical malpractice attorneys at (855) 712-7818 or online for a free consultation.
For More Information