Military Mothers and Claims Under the Federal Tort Claims Act for Injuries that Occur Pre-Birth


Tara Willke

Document Type



Federal courts treat military mothers and their children differently from male military members and their children for claims sought under the Federal Tort Claims Act (“FTCA”) for a military doctor’s medical malpractice in the treatment and delivery of the child. For instance, most recently, in Ortiz v. United States ex rel. Evans Army Community Hospital, the Court of Appeals for the Tenth Circuit held that the FTCA barred the husband of a female Air Force officer from bringing a claim against the government when his child suffered brain trauma that resulted from a negligent delivery.2 The Feres doctrine, a judicially created exception to the FTCA, bars members of the military from bringing claims under the FTCA if the injury was sustained “incident to service,”3 and thus compelled the court to hold that the government was not liable under the FTCA in this case.4 This arcane and overly broad doctrine has also been applied to bar third party claims if the injury to the third party derived from an injury to the service member.