By Alex Stein
When Congress enacted the Federal Tort Claims Act (FTCA) in 1946, it did not envisage that its formulation of the federal government’s liability will allow members of the military forces to sue the United States for service-related noncombatant injuries. The Supreme Court closed this gap in Feres v. United States, 340 U.S. 135 (1950). It held that FTCA did not waive the government’s immunity from tort liability for members of the military and supported that interpretation by a number of reasons. First and most important, FTCA made the government liable in torts according to state laws that do not – and are not authorized to – govern the distinctly federal relationship between the government and its armed forces. Second, Congress has established a uniform compensation scheme for injured and fallen soldiers (the Veterans Benefit Act, 38 U.S.C. §§ 301, et seq.). Four years later, in United States v. Brown, 348 U.S. 110 (1954), the Court rationalized Feres as protecting military discipline as well.
Based on these rationales, the Court subsequently decided that Feres also protects the government against suits for derivative harms sustained by civilians. Specifically, it held that when a military person’s “injury incident to service” is the “genesis” of a civilian’s harm, the civilian cannot sue the government. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977).
These decisions did not envision the present-day inflow of women into the military and that pregnant servicewomen will be receiving obstetric care at military facilities. For these women and their newborns, the implications of Feres in the event of medical malpractice are unclear.
Arguably, when a servicewoman receives substandard care that injures her fetus, the resulting injury will not be categorized as “incident to service.” If so, the government will be denied the Feres immunity and will face liability according to FTCA. This argument, however, might not succeed when the fetus’s injury originates from medical malpractice that impacted the woman’s body. Under such circumstances, the woman’s “injury incident to service” might qualify as a “genesis” of the fetus’s injury. Based on that categorization, the government might obtain full immunity against the newborn baby’s suit. Because virtually all fetal-injury cases are open to these two lines of argument, federal courts are yet to develop a uniform approach to those cases.
The most recent – and, by my lights, most impressive – attempt in that direction was made by the Tenth Circuit in Ortiz v. United States, ex rel. Evans Army Community Hosp., — F.3d —- (10th Cir. 2015), 2015 WL 2330230. This case involved Captain Heather Ortiz, an active-duty servicemember in the United States Air Force, who was admitted to a military hospital to deliver her baby by a Caesarean section. After being administered Zantac and Benadryl in preparation for the surgery, Captain Ortiz experienced a steep drop in her blood pressure and developed hypotension. As a result, her baby was deprived of oxygen in utero and was born with severe brain damage. The hospital’s staff was clearly responsible for the complications in Captain Ortiz’s preoperative procedure.
The Circuit’s decision, written by Judge Timothy M. Tymkovich, offers a thorough and precise analysis of the Feres doctrine and its implications for in-utero cases. According to Judge Tymkovich, in-utero cases can easily be decided by applying the injury-focused “genesis” test set up in Stencel Aero. Under this test, when the mother suffers no injuries (as in cases of undiagnosed birth defects) or when her and her baby’s injuries are separate and not coextensive, the government will receive no immunity and the baby’s suit will be allowed to proceed under FTCA. On the other hand, when the baby’s injury (oxygen deprivation and the resulting brain damage, in the case at bar) is coextensive with the mother’s injury (hypotension and the consequent lack of oxygen in her uterus), the Feres immunity takes hold and bars the baby’s suit.
The plaintiff’s suit therefore fails, however unjust it may be. As Judge Tymkovich put it, “We wish, frankly, that were not the case. But in faithfully applying Supreme Court authority, Tenth Circuit precedent, and the persuasive decisions from other circuits, the incident-to-service and genesis standards require such an outcome.”
On his way to this conclusion, Judge Tymkovich has rejected the treatment-focused approach followed by other courts. This approach focuses on the designated beneficiary of the negligent medical treatment. If that treatment was directed at the mother, the Feres immunity will bar the suit. On the other hand, if the negligent treatment aimed to benefit the fetus, the resulting injury would not fall into the “incident to service” category and the civilian baby would be allowed to sue the government.
Judge Tymkovich rejected this approach for four reasons. First, the “genesis” test, as formulated by the Supreme Court in Stencel Aero, is about the connection between the military member’s and the civilian’s injuries: when the first injury is coextensive with the second, the Feres immunity will apply. Second, obstetric treatments often benefit both the mother and the fetus. Third, “a common scenario might involve treatment aimed solely to benefit the fetus, but which results in an injury to the mother. If the baby suffers an obviously derivative injury as a result of the accidental injury to the mother, then Feres should bar the claim regardless of the fact that the treatment was originally intended to benefit only the baby. By the same token, we can envision a scenario where treatment was provided solely for the mother’s benefit, but negligence in providing such treatment injured the baby alone. In those cases, Feres would not operate as a bar because the injury could not be derivative of the non-existent injury to the mother.”
Fourth, the treatment-focused approach requires courts to consider the merits of the plaintiff’s suit, which is antithetical to the jurisdictional role of the Feres doctrine. As Judge Tymkovich explains,
“The Feres doctrine has always operated as an antecedent jurisdictional hurdle — that is, it activates an inquiry into our ability to even consider the merits of the tort alleged against the government. The injury-focused approach appreciates this prefatory concern, deferring any substantial merits discussion related to the actions of the government vis-a-vis the third party. In order to reach those questions, we must proceed past the Feres bar and to do so, we consider the relationship between the third-party injury and the service member’s injury as a threshold matter.”
Judge David M. Ebel wrote an important concurrence that rejects both the injury-focused and the treatment-focused approaches while proposing to adopt “a new, third approach that tethers the military’s Feres-immunity to the military’s conduct toward its servicemembers.” Under Judge Ebel’s conduct-focused approach, the Feres immunity should extend to any provision of medical care to a servicemember by the military, which includes the military’s provision of obstetric care to an active-duty servicemember mother. Courts therefore should “consider whether the civilian child’s in utero injuries flowed directly from the military’s immunized conduct toward its pregnant servicemember. If they do, then Feres bars the claim.” In the case at bar, the “civilian child’s damages action for in utero injuries would not exist but for the military’s provision of obstetric care to the servicemember mother.” For that reason, the child’s action should be barred pursuant to Feres.
This approach strikes me as too broad. If adopted, it would resolve – not necessarily in a good way – the controversy over whether the government should assume liability for contagious illnesses that a servicemember passes to a civilian. Consider a servicemember who contracts HIV after being treated in a military medical facility with an HIV-contaminated needle and subsequently passes the virus to his civilian wife. Under Judge Ebel’s conduct-focused approach (and under the treatment-focused approach as well), the wife’s suit will be barred. Under the injury-focused approach, on the other hand, the wife would be able to sue the government because her injury is separate from and not coextensive with her husband’s.
For that reason, I tend to agree with Judge Tymkovich (but not with his characterization of the in-utero cases as “simple”). For the long run, of course, Congress will do well to establish a special fund for compensating victims of military medical malpractice. At the very least, Congress should set up an administrative program for compensating servicewomen’s children for birth-related injuries (akin to the programs that exist in Florida and Virginia: see Fla. Stat. § 766.302 and Va. Code Ann. § 38.2-5002).
I will say more about this issue in my work “Fixing the Federal Law of Medical Malpractice.”