Sixty years ago, the U.S. Supreme Court ruled that the federal government could not be held liable under the Federal Tort Claims Act (FTCA) for injuries to members of the armed forces arising from activities incident to military service. Feres v. United States, 340 U.S. 135 (1950). What is now known as the Feres Doctrine, remains in force today, despite numerous attempts to over-rule the decision.
The FTCA allows persons wronged by a government employee to sue the government for their injuries. In fashioning the Feres Doctrine, an exception to the government’s waiver of sovereign immunity under the FTCA, the Supreme Court reasoned that the government already had a no-fault statutory compensation plan for military personnel under the Veterans’ Benefit Act, and later noted that the doctrine was necessary to maintain and protect military discipline.
Long criticized as unfair to servicemen, the Feres Doctrine was challenged in two cases decided by the Supreme Court in 1987. In Johnson v. United States, 481 U.S. 681 (1987), the United States was sued for injuries sustained by a service member due to the negligence of air traffic controllers (federal government employees). On a 5–4 decision, the Court reaffirmed the application of the Feres Doctrine. The Supreme Court again refused to overturn the doctrine in Stanley v. United States, 483 U.S. 669 (1987).
The Feres Doctrine also extends to actions brought by servicemen for medical malpractice actions against military hospital personnel. This may very well be the doctrine’s undoing because the Supreme Court is currently deciding whether it will review a case brought by the widow of a now deceased military serviceman, Sergeant Dean Witt. Witt was hospitalized for appendicitis at a medical center at the Travis Air Force Base where he was stationed. Mrs. Witt alleges various acts of medical malpractice caused Witt to suffer severe brain damage. He was taken off of life support after spending three months in a vegetative state.
Bound by Supreme Court precedent, the wrongful death action was recently dismissed by a three-judge panel in the 9th Circuit Federal Court. If this case is heard and overturned by the Supreme Court, the federal government could find itself suddenly exposed to a significant number of liability claims. Although many are championing this case as the best opportunity in years to overturn the unpopular doctrine, there may be far reaching negative consequences for the federal government.
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