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Military Family Challenges Feres Doctrine Over Their Child's Birth Injuries

One military family's baby's birth turned into a nightmare when the military hospital staff acted negligently giving the wrong medication and causing the baby to lose oxygen, now the family is facing a whole new legal battle explains The Colleran Firm

It is well-known that a civilian who is injured by the careless or reckless act of another is usually entitled to bring a personal injury lawsuit against the at-fault party to seek financial compensation for the losses that the injury victim has sustained. However, members of the military quickly learn that the military world is quite separate, distinct, and different from civilian life.

Nowhere is this more apparent than when a service member is injured by another person’s carelessness or reckless behavior. Thanks to a 66-year-old legal doctrine dubbed the Feres doctrine, military service members who are injured while on active duty are not able to pursue a lawsuit in civilian court. One family is seeking to overturn the Feres doctrine, claiming the law unfairly deprives military families of their legal rights to bring  medical malpractice lawsuits on behalf of the newborn child of a military member  who is injured in a birth injury accident.

What is the Feres Doctrine?

The Federal Tort Claims Act has prevented military service members from suing the military or federal government for injuries they sustained on the battlefield. Before 1950, however, there was nothing preventing a service member from suing when he or she suffered a non-battlefield related injury. In the 1950 case Feres v. United States (the case from which the Feres doctrine gets its name), the U.S. Supreme Court expanded the application of the Federal Tort Claims Act to prevent a service member from bringing suit against the military or the federal government for any injury that would “arise out of or is in the course of activity incident to service.”

The Feres doctrine has since been used to prevent active duty service members from bringing a civil suit under almost every conceivable circumstance, including even some birth injury cases.

One Military Birth Injury Story

The story of Captain Heather Ortiz (United States Air Force), as reported in USA Today, illustrates how the Feres doctrine can cause severe difficulties and injustices for injured service members. Capt. Ortiz was due to give birth at Evans Army Community Hospital. During the birth, Captain Ortiz (who is on active duty) was administered a medication despite medical records indicating that she was allergic to the medication. To counteract the allergic reaction, medical personnel administered a second medication. The second medication caused Captain Ortiz’s blood pressure to drop dramatically and suddenly, which deprived Captain Ortiz’s child of oxygen. To make matters even worse, the delivery team allegedly did not notice the fetal monitors that indicated Captain Ortiz’s child was in distress. Captain Ortiz’s child Isabella subsequently was born with severe brain damage and now requires constant care and supervision.

If Captain Ortiz was a civilian, she would be entitled to bring a medical malpractice lawsuit to recover compensation for her and Isabella’s injuries and the expenses that Isabella’s injuries have caused the family. But the Feres doctrine is being used to deny the Ortiz family any compensation whatsoever.

The injury was suffered by Captain Ortiz while she was on active duty, and this injury (the drop in blood pressure following administration of the second medication) was the proximate cause of the injury to Isabella. According to the federal district court that heard Captain Ortiz’s lawsuit), the Feres doctrine prevented Captain Ortiz from filing suit against the military. The court dismissed her case.

The Ortiz family is appealing the decision to the U.S. Supreme Court and requesting that the Feres doctrine be overruled. According to, a number of advocates and other groups have filed briefs in support of the Ortiz’s push to have the Feres doctrine eliminated.

The Injustice of the Feres Doctrine

By barring service members from seeking redress of wrongs in civil courts, the Feres doctrine requires service members who have been injured as a result of a criminal act to seek justice from the military court system. As reported by PBS, the judges in the military justice system may not have any formal legal education and have the power to reduce or change the criminal charges against the defendant or dismiss them entirely. They have the power to pick the jury to hear the case, and may have a personal or professional relationship with the defendant.

Application of the Feres doctrine in military medical malpractice case leads to discriminatory results, as detailed by USA Today. In the case of the Ortiz family, had Captain Ortiz not been in the service, she would have been able to pursue a medical malpractice claim against the doctors and hospitals involved in the delivery. Similarly, if the father is a service member and he is injured and his or her child is injured in a birth injury accident, a medical malpractice case can still be brought on behalf of the infant because the father’s injury could not under any circumstance have caused or contributed to the child’s injury. Time magazine also commented on the apparent unfairness of the Feres doctrine when applied in other personal injury cases especially to women.

Preventable Errors During Childbirth

It is a sad fact that each year children are born with serious birth defects as the result of medical errors and medical negligence. As Captain Ortiz’s case illustrates, even simple errors such as not reading the delivering mother’s medical records and discovering a medication allergy, or failing to adequately monitor the fetus’s condition during delivery can cause serious injuries to an infant that require a lifetime of medical care. Until the U.S. Supreme Court overrules or limits the application of the Feres doctrine, military medical malpractice victims will face a long and difficult – perhaps impossible – road to recovering compensation.

If you or your child suffered injuries during the child birth process, contact The Colleran Law Firm and allow us to evaluate your situation and determine your legal rights. Our firm is committed to helping Pennsylvania and New Jersey families get their lives back together following a preventable birth injury or personal injury accident. We understand the importance of family: four of our firm’s five attorneys are family members. Let our family help yours by calling our office or contacting us online following your medical malpractice case.

The attorneys at The Colleran Firm handle serious injury cases caused by health care provider negligence and medical malpractice in Pennsylvania & New Jersey.

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Phone: (215) 972-8000
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