Why Those Serving in the Military in Kentucky Cannot File Medical Malpractice Lawsuits

April 20, 2012

Much of the discussion regarding medical malpractice today revolves around the "caps" being put on damages awards in certain states. People argue for and against these caps based largely on whether they are members of the medical profession or have been injured or known someone who was injured by a doctor, nurse, or other medical person.

One segment of the population is not affected by these caps because they are not allowed to file medical malpractice claims when they are injured by someone in a medical field. These are the same people who protect our freedom both in the U.S. and abroad. They are the members of the U.S. military.

Back in the 1950s, a soldier was killed in a barracks fire. His family sued the government for negligence that led to his wrongful death. The Supreme Court determined that the federal government could not be held liable for his death because he was an active member of the military. Because the soldier's last name was Feres, this decision by the Supreme Court, which has stood ever since, is called the Feres Doctrine. In defense of this doctrine, the government states that service members are compensated in other ways, such as through disability assistance available to veterans, pensions, and VA medical care.

This serves as little consolation to the most recent service member to challenge the Feres Doctrine. In July 2009, and Air Force airman went to a military medical center in California to have his gall bladder removed. During the surgery, a doctor cut his aorta, causing massive internal bleeding that was not corrected until he was transferred to a civilian hospital several hours later. By then, he had lost so much blood that both of his legs had to be amputated. He has so little of his legs left that his prosthetics are uncomfortable to wear and he spends most of his time in a wheelchair. He is only 23 years old. He and his wife have filed a medical malpractice lawsuit against the government requesting over $50 million in damages to compensate for lost income, pain and suffering, disfigurement, and loss of a marital relationship, among other things.

The airman's attorney knows that it a long shot, since numerous people have unsuccessfully challenged the doctrine in the past. But he states, "I am championing Colton and Jessica's cause to overturn the extremely unjust, outmoded, universally criticized, and judicially erroneous Feres Doctrine so that not only the Reads but all our nation's active-duty military personnel will have the right to seek just redress for harm inflicted on them by federal governmental doctors and healthcare providers."

While this case, which was filed in Texas, seems far removed from those of us living in Kentucky, it still affects a large part of our state's population. Numerous service members reside and serve in Kentucky, and the overturning of this doctrine would be beneficial to those who serve in the military across the U.S. This article is just a general overview of a fairly complicated doctrine. If you have been injured and think the Feres Doctrine may apply, be sure to contact a knowledgeable Kentucky personal injury attorney to review the facts of your case before deciding whether or not to file a claim.

Sources:

Former airman sues U.S. after losing legs to botched surgery; Star-Telegram; Chris Vaughn; April 11, 2012