Routine back surgery gone terribly wrong
On April 6, 2018, Carter was admitted to Walter Reed National Military Medical Center in Bethesda, Md. for back surgery to address chronic pain. During the procedure, Carter’s spinal cord was injured. When he woke up, he was unable to move his arms and legs. He underwent a second emergency operation the same day and was then sent to the intensive care unit where he was intubated and sedated. After three weeks in intensive care at Walter Reed, Carter transferred to the Hunter Holmes McGuire VA Medical Center in Richmond, Va., where he spent the next year in rehabilitation therapy for his spinal cord injury.
Today, six years later, he has limited use of his left arm but is otherwise paralyzed from the chest down. He cannot dress or feed himself.
Carter and his wife brought a medical malpractice lawsuit in the federal District Court for the District of Maryland and then, on appeal, in the Fourth Circuit Court of Appeals. Neither was successful.
A retroactive change in duty status
At the time of the surgery, Carter was not on active-duty orders or medical orders. Eighty-two days after Carter's surgery, the military changed his status to active duty and backdated it to March 14, 2018.
The change in status was critical. Active-duty service members are precluded from suing the federal government under the Federal Tort Claims Act (FTCA) for injuries sustained in the course of their service. The rationale for such a ban arguably falls apart, however, when applied to service members not on active or medical duty. The after-the-fact alteration disallowed any claims Carter and his wife might have advanced.
The Feres doctrine
The FTCA, passed in 1946, allows people to take legal action against the federal government for negligence to its employees. However, the law leaves out “claims arising out of the combatant activities of the military … during time of war.” In its Feres v. US decision in 1950, the Supreme Court expanded the interpretation of the statute to include injuries that are “incident to service,” a broad description that has come to encompass nearly everything in military life. The case arose from the 1947 death of Lt. Rudolph Feres in a negligently-caused barracks fire at Pine Camp, NY., where he and other soldiers were on a peacetime training mission.
Mounting criticism
Carter’s cert petition argues that his case presents a chilling example of “the breadth and injustice of Feres, where an inactive duty service member, under no military orders and on no military mission, and whose status was retroactively altered from inactive to active duty post medical malpractice, is summarily precluded from bringing his congressionally authorized FTCA claims in a civil court of law.”
Even Supreme Court Justices Clarence Thomas and Antonin Scalia have criticized the doctrine in the past. As the late Justice Scalia wrote in 1987, “Feres was wrongly decided, and heartily deserves the widespread, almost universal criticism it has received.”
In 2022, the Ninth Circuit ruled that the Feres doctrine did not bar a former servicemember from suing the United States and a former officer for damages resulting from an alleged sexual assault that took place while the servicemember was on active duty. The Ninth Circuit stated that “we ‘cannot fathom’ how the alleged sexual assault in this case could ever be considered an activity ‘incident to [military] service.’”
To date, Congress has acted to limit the application of the Feres doctrine for claims related to contaminated water at Marine Corps Base Camp LeJeune, N.C., and administrative medical malpractice claims. Similar questions have arisen with respect to misdiagnosis of injuries related to toxic burn pit exposure.
The Heros Act (H.R. 4334)
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The law, were it enacted, would also require claims to be investigated by a third party, rather than the Department of Defense. The bill, however, has not moved since its introduction and will likely die at the end of this Congress.