The U.S. Supreme Court has left it up to Congress to decide if service members may pursue in the civil justice system claims that they have suffered harms while seeking medical services, a fundamental civil right now denied to military personnel.

Justices Clarence Thomas and Ruth Bader Ginsburg — who rarely agree on much — both wanted but were unsuccessful in getting their high court colleagues to revisit an inequitable, 69-year-old  Supreme Court ruling involving the Federal Tort Claims Act. That act governs who can bring a claim for negligence at a military or other government health care facility.

Active duty military personnel cannot bring a medical negligence claim for care at a military facility. This is called the “Feres doctrine,” after the Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950). Under the Feres doctrine, members of the United States armed forces are barred from making a claim against the United States for personal injury or death arising “incident to service.” Military medical treatment received by a service member, while on active duty, has been held by the courts to be “incident to service,” and, thus not actionable, even if that treatment was for a purely elective procedure, and even if the procedure was performed negligently.

But Walter Daniel, a grieving husband and former Coast Guard officer, petitioned justices to reconsider the Feres doctrine and how it has barred him from legal recourse in the death of his wife, Navy Lt. Rebekah “Moanie” Daniel. She was a healthy 33-year-old woman and a labor and delivery nurse herself. Shortly after delivery in her low-risk pregnancy, she bled to death at the Naval Hospital Bremerton in Washington State.

He sued the Navy for medical malpractice, with court documents showing its “doctors failed to perform vital tests, to employ an obstetrical balloon — a standard device used to halt postpartum hemorrhage — and to start massive blood transfusions until too late.”

Daniel’s case has been blocked by the fact that his deceased wife was active-duty military at the time she gave birth. If she had been treated in the same hospital by the same doctors and suffered the same tragic outcome, but hadn’t been active duty, her widower’s case would not have been barred by Feres.  That doctrine only applies to injuries of active-duty personnel themselves.

Justice Ginsburg wanted the high court to take up Daniel’s case, though she did not elaborate. Thomas filed a short dissent:

I have explained before that ‘Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.’ Lanus v. United States, 570 U. S. 932, 933 (2013) (quoting United States v. Johnson, 481 U. S. 681, 700 (1987) (Scalia, J., dissenting)). I write again to point out the unintended consequences of this Court’s refusal to revisit Feres … unfortunate repercussions—denial of relief to military personnel and distortions of other areas of law to compensate—will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres. Had Congress itself determined that service members cannot recover for the negligence of the country they serve, the dismissal of their suits ‘would (insofar as we are permitted to inquire into such things) be just.’ Johnson, supra, at 703 (Scalia, J., dissenting). But it did not. Accordingly, I respectfully dissent from the Court’s decision to deny this petition.

Daniel expressed disappointment in a statement quoted by the military-focused site Task & Purpose, saying:

Our case and our fight are over — but it continues for other service members. Moanie’s story has generated a groundswell of momentum to correct the injustice of Feres, and now this issue is going all the way to Capitol Hill. I support the efforts of legislators, military and veterans’ organizations, and others who are committed to revising our laws to give service members the rights they deserve.

The justices’ declining to reexamine the Feres doctrine makes it more urgent and important for Congress to act, going beyond what eight lawmakers already have proposed in a bill introduced by California Democratic congresswoman Rep. Jackie Speier (shown above)  — a measure that has won bipartisan backing. As Stephen I. Vladeck, a University of Texas School of Law professor, argued in a New York Times Op-Ed:

Last month, a bipartisan group of eight House members introduced legislation that would overrule Feres in part, authorizing tort claims against the federal government that, as in the Daniel case, relate to “medical, dental, or related health care functions” provided by federal employees at federal medical facilities. That’s a good start, but it doesn’t go nearly far enough. Respecting our troops does not just mean saying the right things; it means ensuring that those who volunteer to defend our country don’t surrender the ordinary protections of our laws when they do so. And yet, there are too many ways in which our current laws do treat service members like second-class citizens, often for no other reason than historical inertia. Because the Feres decision was an interpretation of the tort claims act, Congress can overturn it in its entirety by passing another law. Doing so won’t fully close the legal gaps between the men and women in uniform and the rest of us, but it would be a salutary — and long overdue — first step.

That’s right, Prof. Vladeck. In my practice, I see not only the harms that patients suffer while seeking medical services, but also the havoc that can be wreaked on service members and their families when they receive bad or negligent military medical care at hospitals or clinics run by one of the armed services or the Department of Veterans Affairs.

While readers might want to check our law firm’s website for more details on who can and cannot sue over malpractice events at military hospitals and clinics, concerned parties may wish to make clear to their elected officials the importance to them of Spiers’ pending bill HR 2422, aka the “Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019.”

When we ask service personnel to take the highest risks and make great sacrifices, we owe them the constitutional right we enjoy as civilians to pursue through the civil justice system appropriate claims of harm — medical malpractice suits that do not challenge the order, discipline, and function of forces on or near combat. Doctors, hospitals, and insurers long have sought to demonize medical malpractice suits, but a building body of research shows they not only bring due justice and needed financial and medical support to the harmed, they also serve as an important way to rid medicine of bad and negligent doctors and other personnel. These too often are repeat offenders. We don’t and can’t have such poor professionals treating civilians—or service personnel.