For the past fifty years, our military has been subjected to an obscure legal doctrine known as “The Feres Doctrine.” While the average soldier can normally spend his entire career without even giving the Supreme Court a second thought, the results of Feres are seen daily in military clinics and hospitals.
According to Feres, 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 resulting from the negligence of others in the armed forces. Basically, Feres states that if a military doctor cuts off your otherwise healthy leg by mistake, you get no money from the government. It applies with equal force to negligence by any soldiers, including professionals such as military lawyers, pharmacists, nurses, psychologists, and pilots. The Supreme Court crafted the doctrine in 1950 with Feres v. United States, and it has been continually upheld by courts since that time. Judges refuse to overturn Feres and point to Congress to change the statute. Legislators ignore the courts, either inadvertently or by design. The outcome can be criminal medical care and an unaccountable government.
When I was with the First Cavalry Division, I worked on the case of a Major who was being eliminated from the service. He had graduated from medical school, but never passed his medical boards despite repeated attempts. (He was also being kicked out for getting caught shoplifting and for a DUI.) The military allowed him to practice medicine under the supervision of another doctor, which is a fairly straightforward practice.
You’re probably saying to yourself, “So what’s the problem?”
He was an eye surgeon.
“It’s not problem to let him operate on a soldier’s eyes, since he’s under the supervision of another doctor, right?”
Wrong. The supervising physician was at Fort Sam Houston, and he was at Fort Hood. If he blinded a soldier, the doctor could not be sued since he was operating within the scope of his employment. The government could not be sued because of Feres. All the soldier gets is an “Oops” and two glass eyes (which are probably made by the lowest bidder).
If the government knew it might be liable in a lawsuit, it would have a vastly increased incentive to provide quality medical care. A former commander of mine once told me that, “the true measure of a man may be seen in how he behaves when he knows he will not be held accountable for his actions.” Remove the incentive for doing the right thing, guarantee a lack of punishment for doing the wrong, and what do you get? All too often, you are left with the expedient, the cheap, and the good-enough-for-government-work. When Uncle Sam knows he will not be sued for botched surgeries, erroneous prescriptions, and filthy hospitals, he has no incentive to fix those problems.
I do not mean to denigrate the valiant efforts of our doctors, nurses, and medics that serve with honor and save lives every day, both in combat or peacetime. I do have an issue with incompetence, malfeasance, and a$$-covering. If those are present, the problem needs to fixed and those accountable need to be punished, whatever the profession.
Feres does have salvageable sections. For instance, we do not want Private Schmedlapp second-guessing his company commander’s tactical decisions in a court of law. To allow him to sue his superiors for negligent decisions would almost certainly injure good order and discipline. So, maintaining the bar to negligence actions does make sense where the command relationship would be challenged. But, is there any harm to good order and discipline if a soldier or his widow sues the federal government based on negligent medical care in the post hospital? No. It makes the government accountable for ensuring quality military medicine.
What is the solution to the problem? End the finger-pointing. Either the Supreme Court needs to overturn Feres, or Congress needs to amend the statute to clarify the issue. Allow negligence lawsuits that are aimed outside of the chain of command, such as for professional malpractice, but maintain the prohibition on a soldier suing his superiors. Regardless of the solution, we cannot allow “business as usual” to continue.
Countless people gloss over the words “God Bless America” without a second thought. Well, God has blessed America, because our nation has been endowed with amazing young men and women that are willing to sacrifice everything to keep us free. They deserve only the best in return.
Jason Thelen served as a Captain in the US Army Reserve during Operation Iraqi Freedom. This is the fourth in a series of columns he is writing for Veterans for Common Sense. He can be reached at firstname.lastname@example.org
Find more articles by Jason Thelan. Read previous columns here:
It could have just as easily been me, February 18, 2005
Open Letter to Senator Cornyn, February 9, 2005
Dear America from an Iraq War veteran, February 2, 2005