• 28
  • April
    2011

In our last post, we began looking at current challenges of a law which bars military men and women from suing military medical personnel for medical malpractice. That law may soon be challenged in the Supreme Court, who is currently deciding whether to hear the case.

The law currently under fire, called the Feres Doctrine, is the result of a 1950 Supreme Court ruling which, for all practical purposes, equates medical malpractice injuries with wounds gained on the battlefield. That case was an interpretation of the Federal Tort Claims Act of 1946, which permitted plaintiffs to sue the government for negligence in certain situations. The law was originally interpreted as not allowing suits by military personnel and their families only where the injury or death was the result of combat-related activity. Feres v. United states, which dealt with the death of a soldier who died in a barracks fire, extended the exclusion to prevent lawsuits for injuries deemed "incident to military service."

Those opposed to the Feres ruling say the Federal Tort Claims Act didn't intend to prevent service men and women injured medical malpractice from seeking relief. They also say that holding military medical personnel responsible for medical mistakes would prevent unnecessary injuries and deaths. Justice Scalia, in a dissenting opinion, criticized the law as a misinterpretation of federal law in a 1987 case that ultimately upheld protections for military hospitals by a 5-4 ruling.

But despite various challenges in court and congressional attempts to overturn the Feres Doctrine, the law has continued to stand. Supporters say that if the law is struck down, it could have the effect of demeaning injuries suffered in combat since soldiers injured on the battlefield would have recourse to medical malpractice while those injured in a military hospital could.

If the case is overturned, the federal government could face-according to the Congressional Budget Office-an average of $135 million every year in malpractice claims. And if the law is retroactive, the costs could go as high as $2.7 billion over a ten year period. But those numbers could arguably be less due to increased levels of care in military hospitals.

Source: Associated Press, "Military faces challenge to malpractice shield," 22 April 2011.