In 2001, a military surgeon mistakenly severed two of Army Staff Sgt. Michael McClaran’s[RE1] nerves during laparoscopic surgery, which left half of McClaran's diaphragm paralyzed. Yet McClaran is barred from suing.
Staff Sgt. Dean Witt died in 2003 following a routine appendectomy, due to a series of medical errors that left him in a persistent vegetative state[RE2] . Witt’s wife and children are limited to receiving $350,000 in military life insurance benefits and a minimal amount of monthly death benefits.
The Feres Doctrine bars military personnel from suing the federal government for all injuries that arise out of or are in the course of activity incident to their military service. Over the past 62 years, the application of Feres has broadened – it now bars nearly every injury connected to military service, even if the injury occurred off duty or due to gross medical negligence.
In March 2012, the Supreme Court denied a petition that sought to modify or overturn the Feres Doctrine, and all legislative efforts to modify the law have died in the Senate. However, a few exceptions do limit its application:
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Military dependents. The government may be sued for the injuries and deaths of spouses and children of military personnel.
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Non-Active Duty Military and Military Retirees. Non-active duty military and military retirees may sue. Military retirees may also bring negligence claims for medical malpractice injuries that occurred after retirement, even if injury occurred during active service.
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Defendant Is An Independent Contractor. Although military personnel cannot sue a federal employee who was acting within the scope of their employment, if a health care provider is an independent contractor – as are some of the physicians working in government hospitals – they can be sued individually.
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Temporary Disabled Retired. The courts are split as to whether those on the Temporary Disabled Retired List are barred from suing, since they are neither officially retired nor on active duty.
Opponents of Feres argue that it is unjust, decreases the quality of medical care at military hospitals and devalues the lives of our military servicepersons. The Doctrine’s supporters claim that
