Quietly, US Moves to Block Malpractice Lawsuits by Military Families

By Noel Brinkerhoff and David Wallechinsky, AllGov

03 February 12

n defending the U.S. military's medical system in court, the U.S. Department of Justice is arguing that service personnel and their families are not allowed to sue for medical malpractice regardless of the circumstance.

As a general rule, military members are barred from taking the government to court, which has been established in several court cases, in particular the 1950 Supreme Court decision in Feres v. United States. But now government lawyers are trying to expand the scope of Feres to make it impossible for families of soldiers to sue for medical malpractice, if at the time of the bad care the service member was on active duty.

"This is a whopper of a theory and it immediately raised the hackles of attorneys who practice in this field," wrote Andrew Cohen for The Atlantic. "Now, all of sudden, family members of military personnel can't sue the U.S. for negligence because their loved ones are on active duty?"

Eugene Fidell, an expert in military law at Yale University told the Military Times that the Feres Doctrine was not intended to protect military hospitals sued by civilians. "If the government can plausibly take a position like this, something is basically wrong," said Fidell. "The outcome the government is arguing for is intolerable. If the government wins this motion, Congress has to step in."

To Learn More:

U.S. Seeks New Limits on Troops' Legal Rights (by Andrew Tilghman, Military Times)

Quietly, U.S. Moves to Block Lawsuits by Military Families (by Andrew Cohen, The Atlantic)

Supreme Court May Review Law that Prevents Military Personnel from Suing for Medical Malpractice (by Noel Brinkerhoff, AllGov)

Military Personnel Not Allowed to Sue for Medical Malpractice (by Noel Brinkerhoff, AllGov)