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Birth injury case may offer high court new look at Feres Doctrine

The world has come a long way from where it was in the 1950s. If Ward and June Cleaver were to suddenly transport from then to the San Antonio of today, they would likely feel like complete aliens. Not having been witness to how society has changed would surely leave them stymied.

There are those who suggest that just such a time warp exists in one particular area of law by virtue of something called the Feres Doctrine. The 1950 U.S. Supreme Court ruling created a shield for the U.S. military from suits by active service people injured in performance of their assigned duties.

Over the decades since, the precedent has been invoked in various cases. Included on that list was one decided last year seeking compensation for the wrongful death of a service woman’s baby. Her doctor had advised rest and light duty because of a miscarriage scare, but her commanders put her through her regular army paces. She went into premature labor and the child died.

A federal court, voicing objection, said it had to deny the case because of the Feres Doctrine. The Supreme Court refused to hear the appeal, as it has done in at least three other cases in the past 10 years. But there’s word now that the court could have another opportunity.

This one involves an active duty Air Force captain who was given medication during labor that she is allergic to. Her medical records showed she was allergic and shouldn’t have gotten it. Court documents say her reaction to the drug resulted in the child suffering brain damage and severe disabilities.

Because she is active duty, the courts cited Feres and rejected the family’s birth injury suit. But an appeal to the Supreme Court is expected to be made this fall. The court is expected to decide by the end of the year whether to hear the matter.

Observers say that one key difference might work to encourage the high court to take the case. The government settled a similar case not long ago for $6.5 million after initially seeking dismissal under the Feres Doctrine.

We will be watching to see what happens.

Source: Military Times, “Law prevents some family members from suing the military,” Patricia Kime, July 6, 2015