Is It Time to Revisit the Feres Doctrine? The Disparate Treatment of Active Duty Military Personnel under the Federal Tort Claims Act

Abstract

Congress enacted the Federal Tort Claims Act in 1946, intending to create a remedy for individuals injured by the negligence of government employees. However, the Supreme Court of the United States carved out an exception, now known as the Feres Doctrine, which bars claims by military personnel for injuries received “incident to military service.” Courts have interpreted “incident to service” to encompass any treatment which military members receive in military medical facilities. Therefore, this doctrine bars service members from bringing claims for medical malpractice. In this paper, we review a recent case involving the Feres Doctrine and discuss the pertinent legislation that makes it difficult for individuals to receive just compensation under the Federal Tort Claims Act. Injured plaintiffs in California and other states face even additional obstacles to recovery under the guise of medical malpractice reform.

Keywords: Feres, Feres Doctrine, military, medical malpractice, FTCA, Federal Tort Claims Act, Immunity, Witt v. United States

JEL Classification: K13, K41