In the US, legislation has been introduced that would overturn a 1950 Supreme Court decision which bars military malpractice lawsuits by active duty service members, allowing them to sue the federal government for damages caused by negligent medical care. The bill, originally drafted by Rep. Maurice Hinchey of New York State, is currently moving through the House or Representatives and would allow active duty military personnel to pursue medical malpractice lawsuits against the government for negligence resulting in injury or death.
The bill seeks to reverse a 1950 U.S. Supreme Court decision in Feres v. United States, where the high court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to active duty armed forces personnel sustained as the result of negligence. It prevents families from filing wrongful death lawsuits when military personnel are killed as well.
The Feres Doctrine, as it has come to be known, came as a result of a lawsuit that charged the government with negligence after a soldier died in a fire while assigned to a barracks known to have a defective heating plant. The decision has been used as a basis to bar all negligence claims against the government by active military, including medical malpractice lawsuits.
Hinchey said the bill would only apply to military personnel who were injured by medical negligence, and would prohibit claims of negligence that occurred during “combatant activities” during time of armed conflict.
Critics of the bill, both in the US and here in the UK, say that excluding combat personnel is unfair, and that the courts should first explore solutions that would permit the military to compensate personnel for negligence through existing channels, without opening up the government to malpractice lawsuits by active military.
