As the managing partner of Healthcare Litigation Support and (after our name change) Vident Partners, I’ve had the opportunity to assist in hundreds of medical malpractice cases. I’ve provided expert witnesses to attorneys from large and small firms, both plaintiff and defense, throughout the United States as well as Canada and the U.S. Virgin Islands. I don’t claim to be an expert on medical malpractice law, but I’m experienced enough to understand why these litigations begin, how they proceed, and how they resolve. But I was unfamiliar with the Feres Doctrine, established in a 1950 Supreme Court case, in the which the Court held (quoting from the syllabus) that “The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.” So I was both surprised and pleased when I read about new legislation, which was agreed upon by Congress and which made it into the National Defense Authorization Act (NDAA), which establishes an exception to the Feres Doctrine: It will allow members of the country's armed forces to file claims against the U.S. under the Federal Tort Claims Act and receive compensation if they were subjected to “negligent or wrongful” medical treatment at a military facility, according to a portion of the NDAA.
In today’s political environment, it is hard imagine a bipartisan effort to correct a longstanding wrong in the law, but clearly it is still possible. Here is a link to the Feres decision, https://supreme.justia.com/cases/federal/us/340/135/, and one to a NY Times article, https://www.nytimes.com/2019/12/11/us/military-lawsuit-malpractice-feres.html, that does an excellent job of explaining the background of the Feres Doctrine, its current status, and the reasons why Congress has finally acted to change the law.
