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The argument for keeping the Feres doctrine

WASHINGTON — Victims’ rights groups for decades have blasted the Feres doctrine as misguided and unjust. But from the military’s perspective, the legal precedent is essential to making sure all troops are treated fairly.

Defense officials — and federal attorneys, on their behalf — have consistently defended the limits on servicemembers’ ability to sue the government. Without those limits, they say, the armed forces would get bogged down in lengthy and possibly frivolous lawsuits.

Last year, in arguments to the Supreme Court not to undermine the Feres doctrine, the U.S. solicitor general’s office argued that allowing military malpractice lawsuit could “substantially disrupt the military mission, by requiring officers … to testify in court as to their decisions and actions” and “reallocate scarce resources away from compelling military needs” to avoid legal actions.

Government officials insist that servicemembers receive compensation for on-duty injuries and medical errors by military physicians, just not through the civil courts system. Instead, it comes in the form of free medical care, military life insurance payouts and other military benefits.

They argue that carving out exceptions in the Federal Tort Claims Act for things like military medical malpractice would create an uneven system for compensating troops.

Right now, a soldier who loses an arm due to an Army physician’s mistake cannot sue for a larger injury payout than another soldier who loses an arm in combat. But they could if the Feres doctrine disappears, they argue.

The arguments have been persuasive in the courts. Last year, the Supreme Court declined once again to hear a serious Feres challenge.

shanel@stripes.osd.mil
Twitter: @LeoShane
 

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