The Feres Doctrine: Explained

The Feres Doctrine bars active-duty personnel from bringing a claim for injuries caused by medical mistakes within VA hospitals and clinics.

When a veteran, non-active-duty service member, or a family member of a service member injured in a VA hospital or clinic operated by the federal government brings a claim for those injuries, he or she must bring that claim under the Federal Tort Claims Act—commonly referred to as the “FTCA.” As a general rule, the federal government has immunity from any private claim for injuries caused by the government, but the FTCA creates an exception and an opportunity for those that experience preventable medical mistakes in VA hospitals and clinics.

By its language, the FTCA allows certain individuals to bring a claim against the government though a process governed by the United States Department of Justice. The FTCA also prevents active-duty military personnel that receive injuries incident to their performance of duty from bringing a claim. Since the passage of the FTCA, United States federal courts have interpreted the words of the FTCA regarding the active-duty status exception in determining whether an individual has the right to bring a suit under the FTCA. The United States Supreme Court first ruled on the issue in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and created the Feres Doctrine which bars active duty military personnel from bringing a claim under the FTCA.

Interpreting the words and intent behind the FTCA, the United States Supreme Court held that a soldier could not sue under the Federal Tort Claims Act for injuries which “arise out of or are in the course of activity incident to service.” The Supremes relied on a variety of reasons for reaching this decision which has since slammed shut the door of recovery for countless active-duty service members suffering from preventable medical mistakes. Part of the intent behind the Feres Doctrine limitation is to avoid the perceived risks associated with a federal court second-guessing military decisions and strategy. Unfortunately, however, since its creation in 1950, the Feres Doctrine has been expanded to prevent active-duty personnel from bringing a claim for injuries caused by clear medical negligence completely unrelated to service duties, military decisions or strategy.

Through its application, the Feres Doctrine has acted as a complete bar from recovery for patients who experience medical mistakes within the VA system despite the fact that the Doctrine’s clear expansion extends far beyond the scope of its original purpose and intent. Skilled attorneys, working for and alongside patients, have attempted to reign-in the Doctrine’s expansion and limit its damage on active-duty personnel suffering from preventable medical mistakes. With some hope, the court system will recognize the need to correct the Feres Doctine and the injustice it has served on our servicemen and women. But not until (and perhaps not even then) the court system is confronted by a compelling story able to demonstrate the harm and injustice the Feres Doctrine causes will the Doctrine be revisited and hopefully revised.

Patients within the VA system—including active-duty personnel—should expect the quality of medical care for which they served. When the VA system fails them, patients—including active-duty personnel—should have the opportunity to recover for the pain and suffering caused by preventable medical mistakes.