A key House Democrat is targeting legislative fixes to the Feres Doctrine as a top priority this session, taking aim at the legal precedent critics say unfairly blocks troops from suing the military for medical malpractice, supervisor negligence and a host of other on-duty mistakes.
Rep. Jackie Speier, D-Calif. and the new chairwoman of the House Armed Services personnel subcommittee, listed the legal issue among her areas of focus in her first statement in the new leadership role.
In her statement, she said the panel’s guiding focus will be to tackle “critical issues that impact not only our service members but their families who also bear the burden of sacrifice and commitment to our country.”
Those include potential new rules for response and prosecution of sexual assault cases in the military — a topic for which Speier has been a vocal advocate for years — as well as reviewing rules for transgender enlistment, improving data usage in military recruiting and retention, and monitoring troops’ pay and benefits.
But the Feres Doctrine debate could lead to some of the most dramatic military policy changes to come out of Congress this year. Speier has been following a handful of court challenges to the legal precedent in recent months, and is planning a hearing on the issue early this session.
The 1950 Supreme Court decision — which ruled the family of an active-duty soldier killed in a barracks fire could not sue the government — has been cited repeatedly by lower courts to block troops from claiming damages for actions related to military service.
Defense officials have argued that breaking the precedent would prompt a flood of frivolous lawsuits. But critics say the courts have gone well beyond the idea of preventing troops from suing for war-related injuries or on-duty accidents, and deprived military families of compensation for negligence.
Last fall, the case of Sgt. 1st Class Richard Stayskal drew national attention to the topic again. A misdiagnosis by Army doctors in early 2017 allowed his lung cancer to worsen and spread, leaving him with just months to live.
If civilian doctors had made the errors, his family would be able to file suit seeking damages. But because of the Feres Doctrine, the prospects of winning a similar judgment against the Army is nearly impossible.
Sean Cronin, whose Florida law firm Cronin & Maxwell specializes in military medical malpractice cases, said federal attorneys are quick to cite the Feres decision in any military litigation, creating a frustrating legal roadblock for a wide variety of lawsuits.
“And every time this has come before the U.S. Supreme Court, they have said the legislative branch can fix this if they want to,” he said. “It’s surprising it hasn’t been dealt with. We’ve had enough government changes over the last 30 years, and enough cases of the (precedent) being abused that we can see the need.”
Cronin said he believes amending the federal tort claims act to allow some military malpractice lawsuits won’t upend Defense Department operations. Cases that clearly fall within military orders and missions can be excluded, while non-combat mistakes that would be liable under civilian law are allowed.
“In a lot of these cases, there’s no reason that the Feres Doctrine should even apply,” he said. “It’s not an issue with the chain of command or getting in the way of appropriate order and discipline.”
Speier’s office has not released details on what legislative options she may have to deal with those cases. Hearings for the committee and its subcommittees are expected to begin in the next few weeks.