In the past few months, Congress has been looking at whether members of the military should be able to sue the government for medical malpractice. Since a 1950 court ruling that established the Feres Doctrine, military troops have not been able to sue for malpractice from injuries they receive while serving.
In the years since that ruling, the Feres Doctrine has been used against service members seeking compensation for injuries that occurred far outside the battlefield—from sexual assault to training accidents to medical malpractice.
In May, the Supreme Court ruled against hearing a case that would challenge the Feres Doctrine. In it, Navy Lt. Rebekah “Moani” Daniel, a nurse, died at Naval Hospital Bremerton in Washington after giving birth to her daughter. She died of postpartum hemorrhaging, and her husband sued the hospital because her care team allowed her to lose more than one-third of her blood.
When her case reached the 9th Circuit of Appeals, a judge wrote a strong critique of the Feres Doctrine:
“Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death,” Judge Michael Daly Hawkins noted. “If ever there were a case to carve out an exception to the Feres Doctrine, this is it.”
Supreme Court Justice Clarence Thomas and Ruth Bader Ginsberg both noted they would have heard Daniels’ case, but other members of the court voted against it.
As a result, in June, Sen. John Kennedy, R-Louisiana, introduced legislation to fix the issue. His bill would allow military personnel to sue over improper medical care or dental care or improper care during research studies at a military medical facility.
The bill would not cover any treatment that happens in combat zone or at battalion aid stations. He introduced it as the Sgt. First Class Richard Stayskal Military Medical Accountability Act, named after a Green Beret dying of cancer. Despite multiple screenings from military doctors, Stayskal had a cancerous mass in his lung that went undetected for months.
Kennedy’s bill is similar to another piece of legislation introduced in April in the House of Representatives.
In an article in the Military Times, Rep. Jackie Speir, D-California, who introduced the House legislation, said, “When doctors fail to perform or woefully misread tests, when nurses botch routine procedures, when clinicians ignore and disregard pain, service members deserve their day in court.”
It will be interesting to see if these bills lead to joint legislation to limit the Feres Doctrine, which has prohibited military troops from suing for medical malpractice for more than 70 years.