The Feres Doctrine: Can Active-Duty Service men and women sue the Government?

Melissa Jarboe self-published a memoir about her husband’s death. After being shot in the battlefield, her husband was taken to Walter Reed Army Medical Center in Washington, DC. A surgeon, who was still in training, cut her husband’s esophagus. He died as a result of a mistake during surgery. Because her husband was active duty, the family was unable to seek medical malpractice compensation for this fatal mistake.

A question we get asked often is whether active duty service men or women can sue the United States Government for medical malpractice? The short answer to this question is generally, no, they cannot. This is because of a rule of law called the Feres doctrine.

There is no provision in the Act expressly excluding or limiting the claims of servicemen. The Supreme Court, however, has construed the Act as containing both an exclusion and a limitation with regard to such claims. In Feres v. United States, the Supreme Court of the United States held that servicemen may not recover under the Act on claims which arise out of or in the course of activity incident to their service. There is no clear answer to when a claim arises “incident to service.” The phrase itself is not in the text of the FTCA.

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