The Feres doctrine resulted from a 1950 Supreme Court case in which the Court ruled that the United States Government could not be held liable for injuries suffered by active duty military members due to the negligence of other active duty military members.
The Feres doctrine prevents our service members from having the same rights as every other American citizen – including their own families. And for the second time in a decade, the Supreme Court has declined to revisit its own ruling from 60 years ago.
Court’s History of Refusing to Revisit the Doctrine
In 2003, Dean Witt was a Staff Sargent in the Air Force when he checked into David Grant Medical Center, an Air Force Medical Hospital, in Fairfield, California for an appendectomy. An appendectomy is a routine surgery, but due to negligence on the part of a nurse anesthetist, Dean ended up with a massive brain injury, eventually being put on life support, and ultimately passing away three months after his surgery.
His wife tried to sue the government for wrongful death under the Federal Tort Claims Act, but the Feres Doctrine forced the District Court and thereafter the Court of Appeals to dismiss Ms. Witt’s claim. In 2011, the United States Supreme Court refused to hear the case.
When a naval nurse died during childbirth in 2014, her widower also tried to file a wrongful death claim, but just this month, the United States Supreme Court refused to hear his case also.
Because the doctrine was originally a result of a Supreme Court ruling, it must be changed by another ruling from the Supreme Court or through legislation passed by Congress.
An Unfair Precedent
The Feres doctrine prevents our active duty service members from exercising the same rights as all other American citizens – even their family members. If it were Ms. Witt, instead of her husband, who died during a routing appendectomy at a military hospital, her husband would have been permitted to file a wrongful death suit. But, simply because her husband was an active duty member of the military at the time of his death, his family was barred from receiving the justice they deserve.
The intent behind the doctrine can be understood, to a certain extent. It is necessary that our government have immunity regarding injuries suffered during combat or in a warzone. However, when our military members are severely injured or killed at a hospital in California because of the negligence of the personnel there, that should be a different story.
The Stayskal Bill
Green Beret Richard Stayskal has worked with legislators to introduce a bill that would amend the Feres doctrine. Stayskal was diagnosed with stage 4 lung cancer after being misdiagnosed months earlier by his military doctors as having pneumonia. Although he’s only been given one year to live, he’s dedicated what remaining time he has left to making sure other military families do not suffer the way his family has been forced to.
Because of the Feres doctrine, Stayskal’s family has no recourse for doctors missing his diagnosis and delaying his treatment six months, which when it comes to cancer, could mean the difference between life and death.
The Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019 was introduced on April 30, 2019. Committee will review the bill, and then it will be sent to the House and Senate for vote.
No real progress despite that fact that every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. Be aware that Feres also protects the US military from legal malpractice by its own incompetent – and many times unethical – military lawyers.
While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.
When I asked the top lawyer (then Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar. Lying to your licensing state bar is grounds for permanent disbarment. The state bar clearly acknowledged that the US Army lawyers were wrongfully “protecting” Fitzgerald and if they were not, the state bar would take action.
I then sued in federal court. It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald since got promoted TWICE as an Army lawyer. Feres was NEVER designed 60 years ago as this kind of “protection.” Today it protects against everything to include corruption, misdeeds, and even cover-ups by US Army lawyers wearing stars on their shoulders.
Fitzgerald became a prosecutor and sent people to Fort Leavenworth prison for violations LESS than what he is clearly guilty. Lying to the feds is a crime punishable by prison. You don’t believe that? Look at what happened with what Robert Mueller has done in 2018 and 2019.