Supreme Court deals devastating blow to Feres Doctrine opponents
By LEO SHANE III | STARS AND STRIPES Published: June 27, 2011
WASHINGTON — The Supreme Court on Monday refused to hear the latest military medical malpractice case involving the controversial Feres Doctrine, a defeat that strengthens the 61-year-old legal precedent and could effectively stop future legal challenges.
The decision follows the trend in recent years by the court not to hear cases involving the doctrine, which places strict limits on the ability of active-duty personnel to sue military doctors for medical malpractice.
Critics of the doctrine had hoped the court would be swayed by the emotional case of Staff Sgt. Dean Witt, who was left in a persistent vegetative state after an Air Force hospital botched what should have been a routine appendectomy.
But the court declined to hear the case without comment. Family members called that decision devastating.
“The justices made a bad decision,” said Carlos Lopez, Witt’s brother-in-law. “They should have at least given us a chance by hearing the case. It’s like Dean dying all over again.”
Medical staff at Travis Air Force Base in California made multiple mistakes following Witt’s 2003 surgery, including pushing a breathing tube into his stomach and using resuscitation equipment designed for children, according to California medical records and Air Force briefing documents. His family removed him from life support three months later.
Witt’s family said Air Force officials withheld details of those mistakes for months after his death and refused to tell them how staff were reprimanded for the mistakes. They filed a grievance against the Air Force, and later a lawsuit asking for unspecified damages to compensate them for medical bills, funeral expenses, Witt’s lost salary and his suffering.
But to move forward with the suit, the courts would first need to overturn the Feres Doctrine, which protects the U.S. government from being held liable for negligence while on duty.
That ruling stems from the 1947 death of Lt. Rudolph Feres, an active-duty soldier killed in a barracks fire at Camp Pine, N.Y. — now Fort Drum. His widow sued the Army for negligence, claiming the facility had a defective heating plant and substandard fire safety controls.
But the Supreme Court three years later ruled that under the law a servicemember performing military duties did not fall under the Federal Tort Claims Act, which allows certain civil lawsuits against the government or government employees. Lower courts have repeatedly cited the decision in preventing troops from suing the services for malpractice.
Attorney Laurie Higginbotham said members of the Witt family recognized the slim chances of success with the Supreme Court but were still devastated by the news. The decision ends their 7-year-old lawsuit, leaving them with few prospects in the future.
Now, legal experts say the best hope for a change in the law appears to be in Congress.
Witt family attorney David Frederick said Congress could pass pending legislation “to ensure that servicemembers enjoy the same protections and remedies against governmental negligence as their civilian counterparts.” But such efforts by lawmakers in recent years have been unsuccessful.
Lopez said his family will continue to push for legislative changes anyway.
“We’ll continue to see this through,” he said. “This decision could negatively impact the military for generations. We hope this isn’t the end.”