An Air Force Captain and her family cannot plead their way around hurdles to suing the federal government, the Tenth Circuit reluctantly found last week. After Captain Heather Ortiz suffered negligent treatment at a military hospital during her pregnancy, her husband and child sued. However, the government cannot be sued for that negligence, the court found.
Under a 1950 Supreme Court decision, Feres v. United States, military service members are barred from suing the government under the Federal Tort Claims Act. That Heather Ortiz was not named as a plaintiff made no difference, since the in utero injuries claimed were to her. The court made it clear that it disagreed with the precedent, describing it as overbroad and unfair, but had no choice except to uphold it.
When a pregnant Capt. Ortiz entered a military hospital in Fort Carson Army base in Colorado, she was given Zantac, despite the fact that her records noted she was allergic to the drug. To counteract her reaction, the hospital gave her Benadryl, leading a drop in blood pressure, deprivation of oxygen to the fetus and eventually leading to her child's cerebral palsy.
The Much Maligned Feres Doctrine
The Federal Tort Claims Act waives the government's sovereign immunity to tort suits, allowing the government to be held liable in the same manner that a private individual would be. But it is a limited waiver of immunity. It excludes, for example, many intentional torts. Under Feres, the FTCA's waiver of sovereign immunity does not extend to service members whose injuries arise out of "activity incident to service." That's a judicially crafted limitation -- you won't read it in the text of the FTCA -- and it bars recovery for almost all service-related injuries. Despite the fact that Ortiz's husband and child alone were named plaintiffs, because the injuries were derived from the mother's, the court had no jurisdiction.
Despite the Criticism, Feres is Still the Law
As the Tenth Circuit notes, criticism of the Feres doctrine "has become endemic," and is at its height in cases such as Ortiz's, where a third-party suffers from injuries to a service member. Yet despite that the doctrine "has received steady disapproval from the Supreme Court on down," it remains the law after 55 years. Thus, the Tenth said, it must enforce it here, despite whatever degree of regret it might have in doing so.