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U.S. Troops could soon be able to sue over medical blunders

A must-pass spending bill in Congress would loosen the Feres doctrine, a bar to suing the government for injuries sustained on active duty. It is named for a heroic World War II paratrooper.
Along with photos of his uncle, Lt. Rudolph Feres, Joe Feres keeps newspaper clippings about efforts to overturn the legal roadblock erected by the Supreme Court when his uncle’s widow tried to sue the Army for negligence over his death. Credit...Parker Michels-Boyce for The New York Times

VIRGINIA BEACH — Lt. Rudolph Feres parachuted into the darkness in the first hours of D-Day in 1944. He fought his way through the hedgerows of Normandy and the snows of the Bulge to the final defeat of Nazi Germany, and was highly decorated for valor.

Generations of servicemen and women since then have heard his name, but not for any of that. Instead, it has been invoked time and again to deny active-duty members of the military a right extended to nearly every other American — to sue for injuries.

Lieutenant Feres made it through some of the toughest fighting of World War II, only to be killed in a stateside barracks fire. When his widow tried to sue the Army for negligence, the Supreme Court, in a watershed 1950 ruling, laid down what became known as the Feres doctrine: The government is not liable for injuries sustained by military members on active duty.

Now, a bill before Congress is poised to knock a hole in the Feres doctrine, the first in generations. A provision that would allow troops to file claims against the military over one kind of negligence — medical malpractice — has been added to this year’s National Defense Authorization Act, the giant bill that funds the military.

The act is regarded as must-pass legislation; lawmakers from the House and Senate agreed on a final version that passed in the House on Wednesday and is expected to become law this month.

“All he did in his career, and this is what he’s known for,” said Joe Feres, the lieutenant’s nephew, who served as an Army paratrooper in Vietnam along with two brothers, and now lives in Virginia Beach. Mr. Feres flipped through yellowed newspaper clippings documenting decades of cases in which troops tried and failed to take the military to court, then sighed and shook his head.

“It bothers me,” he said. “All he went through — what we all went through — and to use the family name to deny other soldiers.”

The Feres doctrine blocks all lawsuits for injuries or deaths that occur “incident to service,” a ban the courts have applied in strikingly broad ways. Being deliberately exposed to the radiation of nuclear tests, or being secretly dosed with LSD by researchers, or drowning in an off-duty rafting trip because of a negligent guide have all been deemed injuries incident to service. So has being raped by a drill sergeant.

In one case, the Supreme Court ruled that it was incident to service when surgeons opened up a soldier’s abdomen for follow-up surgery and found a 30-inch-by-18-inch towel inside him marked “Medical Department U.S. Army,” left there from a previous operation.

The doctrine has created glaring double standards. After the midair explosion of the space shuttle Challenger, families of civilian crew members were able to file lawsuits against the government, but the family of the pilot, a Navy captain on active duty, could not. Even so, the doctrine has proved durable, surviving five Supreme Court challenges and two previous attempts in Congress to modify it.

“It’s about time” the Feres doctrine was loosened, said Dwight Stirling, a longtime senior prosecutor for the California National Guard who now heads the Center for Law and Military Policy at the University of Southern California. “For too long our troops have been treated like second-class citizens, who serve their country but are denied the rights that everyone else enjoys.”

As a prosecutor, Mr. Stirling said, he saw several victims of sexual assault attempt to seek redress in court, only to have their cases quickly dismissed because both victim and perpetrator were in the military.

“That’s when I started to realize what an injustice the Feres doctrine was,” he said. “It was being used to protect rapists.”

Paradoxically, the Feres doctrine has its legal roots in an effort by Congress to make it easier, not harder, to sue the government. The story started on a foggy morning in 1945, when an Army bomber crashed into the Empire State Building. The accident killed 14 people and injured dozens more, but the victims and their families were unable to sue because of a longstanding legal principle called sovereign immunity, which barred citizens from suing the federal government unless Congress passed a law specifically consenting to the suit.

In the public outcry that followed the crash, Congress passed the 1946 Federal Tort Claims Act, allowing a broad range of civil lawsuits against the government. But it included some exceptions, and one of them was for injuries to troops “arising out of the combatant activities.”

The following winter, Lieutenant Feres, then serving as a parachute instructor with more than 300 jumps under his belt and an infant son at home, was taking part in airborne exercises in northern New York when the boiler in his wood barracks exploded in the middle of the night, starting a fire that killed him and three other officers.

His wife, Bernice Feres, sued the Army for $100,000, claiming that the camp had failed to have a fire guard on watch that night and that the boiler was known to be faulty. Her case, and two others that followed close behind, obliged the Supreme Court to decide for the first time whether the new law allowed suits over troops’ injuries away from the battlefield, caused by negligence.

The justices ruled against Ms. Feres and the other two plaintiffs, who brought medical malpractice claims (one was the towel case).

The doctrine has survived because the Supreme Court does not want to inadvertently hamstring the military, according to Paul Figley, a former Justice Department lawyer who now teaches law at American University.

“The military has different obligations and needs than civilian society,” Mr. Figley said. “When you start bringing the adversarial process in, you are at risk of undermining the overall success of the military.”

Mr. Figley noted that the military has a system for compensating injured troops, which includes veterans’ benefits, and said he saw problems with lifting the Feres ban for medical cases.

“Lots of people complain about Feres, but at least it is fair,” he said. “If suddenly you allow members of the military injured by malpractice to have more rights than members wounded in war, that is not a good solution.”

Lieutenant Feres made it through some of the toughest fighting of World War II in Europe, only to be killed in a barracks fire during training exercises at an Army camp in northern New York.Credit...Parker Michels-Boyce for The New York Times

Many serving troops see it differently. Sgt. First Class Richard Stayskal, an Army Special Forces soldier stationed at Fort Bragg in North Carolina, said the right to sue was needed to cut down on injuries and hold bad actors accountable.

Sergeant Stayskal was shot through the chest by a sniper in Iraq in 2004, but worked to stay in the military after he recovered. When he underwent a routine chest scan at an Army hospital in January 2017, he said, the scan picked up tumors in his lungs, but the technician never told him or notified doctors.

Army doctors missed the tumors again, he said, when he went back to the hospital a few months later, complaining of chest pain and shortness of breath. A civilian pulmonologist who examined him in June 2017 spotted the cancer, he said, but by then it had metastasized.

“I was so angry, I reported the negligence to the hospital commander,” Sergeant Stayskal said. “And the response I got was a total lack of concern. Nothing was done.” He is receiving treatment, he said, but because it was detected late, his cancer is incurable.

The sergeant contacted more than a dozen lawyers about suing the Army, but all of them turned him down because of the Feres doctrine. The lawyer he finally hired, Natalie Khawam, said that when she accepted the case, she was too unfamiliar with military law to know any better.

“Then I looked up the case law and said, ‘Wow,’” Ms. Khawam said in an interview. “I realized we had a better chance of changing the law than winning in court.”

Together, Sergeant Stayskal and Ms. Khawam turned their attention to Capitol Hill, knocking on the doors of scores of lawmakers, and testifying before the House Armed Services Committee.

Representative Jackie Speier, Democrat of California, introduced a bill to exempt medical malpractice claims from the Feres doctrine. After the provision ran into opposition in the Senate, a compromise was reached to allow the malpractice claims, but not in the regular federal courts. Instead, they would be addressed through an existing Defense Department adjudication agency that handles Military Claims Act lawsuits.

The change would be retroactive to the beginning of 2018, allowing Sergeant Stayskal to pursue his malpractice claim. But the Feres doctrine would still bar suits over injuries arising from other causes, including a barracks fire like the one that killed the doctrine’s namesake.

“For me, it’s not a money thing, it’s about accountability,” Sergeant Stayskal said. “I wanted to call attention to the problem before anyone else got hurt. I guess if it actually becomes law, I’ll mark it with a moment of silence for all those who tried so hard before me.”

 

Dave Philipps covers veterans and the military, and is a winner of the Pulitzer Prize for National Reporting. Since joining the Times in 2014, he has covered the military community from the ground up. @David_Philipps  Facebook

 

A version of this article appears in print on 

Dec. 12, 2019

, Section A, Page 16 of the New York edition with the headline: Giving Injured Troops Their Day in Court.

 
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