We often get asked the question whether an active-duty military service member can sue the United States. The short answer to this question is that it depends on the claim your bringing. The general rule is that under Feres v United States, a service member may not recover under the Federal Tort Claims Act (FTCA) for claims which arise out of or in the course of activity incident to their service. Courts often refer to this as the Feres Doctrine. Whether your claim falls within the scope of Feres is a complicated legal question that usually requires the assistance of a lawyer. There is no clear cut answer on when a serviceman’s death, injury, or loss is “incident to service.” The words incident to service appear no where in the Federal Tort Claims Act, but have been interpreted into the FTCA by the United States Supreme Court.
Does Feres Doctrine apply to you?
The scope of this question is very broad. To truly answer this question, you need to contact a lawyer and tell him or her the specific facts of your case. However, this article can cover some of the situations in which courts have applied the Feres Doctrine to an active-duty military service member in the Army, Navy, or Air Force.
For example, the Fourth Circuit Court of Appeals held that a Fort Bragg Army Sergeant was injured while he was driving after a mandatory physical training exercise to his on-base residence to shower and change clothes before reporting to his next duty assignment was active duty and was barred from suing under Feres. Courts generally hold that an off-duty, but not on leave service member injured in a car wreck is barred from suit by Feres.
Can an active-duty military service member sue for medical malpractice?
Courts have also held that military medical malpractice cases by active duty service members for their own injuries while not on leave are barred by Feres. The Fifth Circuit Court of Appeals has held that a service-member that was injured in a Naval Hospital was barred by Feres for his own injuries because he was admitted to the hospital due to his status. Generally, courts will find that the Feres Doctrine will bar your suit if you are an active-duty service member suing for your own injuries arising out of medical malpractice.
This may not be the case if you are suing for another’s injuries. For example, we often take and are successful in taking injuries due to medical negligence at birth or delivery of a baby. Many times, the mother, father, or both are active duty. Our active duty moms and dads sue for injuries that arise out of the baby’s original injury. For example, in many cases, the medical negligence on the baby will cause loss of consortium, incur attendant costs of care, and other damages. These types of cases are not barred by the Feres doctrine. If you have a case like this, contact us so that we can analyze the specific facts of the case and give you a better idea whether you may bring suit on behalf of your child for obstetrical or other negligence arising out of the labor and deliver.
Of course, if you are a veteran injured at a VA hospital, you can still sue the United States for military medical malpractice. You must be active-duty before the government can attempt to bar you from suing under the FTCA. If you have any questions or feel you have a case against the federal government, please contact a lawyer.