Duquesne Law Review


Robert A. Diehl


For more than seventy years, active-duty members of the United States armed forces injured by the negligence of military medical practitioners have been denied redress in the federal courts for their injuries. Surviving spouses, children, and probate estates have been turned away from the courthouse. The United States Supreme Court has justified this practice in a series of cases interpreting the Federal Tort Claims Act ("FTCA"),1 a partial waiver of the federal government's sovereign immunity to suits sounding in law. These precedents-collectively called the Feres doctrine-are a judicial invention constructed from a complex and opaque series of arguments about the structure of the federal system of statutory compensation for servicemembers.2 The arguments often ignore the plain meaning of the broad, sweeping language of the FTCA, and have been criticized as internally incoherent, and productive of absurd and unfair results.3

Thus, many commentators celebrated when Congress enacted legislation in 2019 authorizing the Department of Defense to evaluate and settle servicemembers' military medical malpractice claims through an administrative claims process.4 But to eulogize Feres would be premature. This Article argues that aside from the simple fact that servicemembers still may not sue for their injuries in federal court, there is good reason to think that the claims process will produce inadequate compensation for servicemembers and have the latent effect of insulating and entrenching the Feres doctrine for many years to come.5

Part II.A gives a brief account of American sovereign immunity jurisprudence and the enactment of the FTCA, and Part II.B explains the development of the Supreme Court's Feres doctrine. Part II.C describes a recent legislative effort to overturn the Feres Doctrine and the 2019 enactment of an administrative claims process for servicemember military medical malpractice claims. Then, Part III addresses critical analyses of the Court's Feres doctrine jurisprudence, considers certain positive aspects of the administrative claims legislation, and criticizes its shortcomings. Finally, Part IV proposes judicial and legislative solutions that aim to mitigate the substantive unfairness faced by servicemembers injured by military medical malpractice and makes several recommendations for scholars and activists concerned with that unfairness. Part V provides brief concluding remarks.

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