The United States Supreme Court is considering whether to hear a case that would challenge the doctrine which prevents lawsuits against military medical personnel. The case involves an Air Force Staff Sergeant who was hospitalized for a routine appendectomy in 2003.

After surgery, a nurse anesthetist mistakenly inserted a breathing tube into his esophagus rather than his trachea, and the airman’s brain was deprived of oxygen. His family removed him from life support a few months later and he died immediately. The nurse anesthetist acknowledged her mistake and surrendered her state license. The widow of the patient wanted to sue, but her claim was denied by the federal courts due to what is known as the Feres Doctrine.

The Feres Doctrine is based on a 1950 case (Feres v. U.S.) in which a soldier died in a barracks fire. The court in this case held that “the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.” Basically, the Feres Doctrine was interpreted to mean that military medical mistakes were the same as battlefield injuries, and that the armed services are immune from civil litigation.

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The Feres Doctrine is widely unpopular and has even been criticized by Supreme Court Justice Antonin Scalia in a dissenting opinion in a 1987 case, which, by a 5-4 vote, reaffirmed the immunity from liability of military hospitals. “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received,” the Justice wrote.

Despite this, the law has survived numerous challenges and legislative attempts to overturn it. This is likely due to fears that it would cost the government enormous amounts of money were the rule to be rescinded. It has been estimated by the Congressional Budget Office that were military personnel allowed to sue, it would cost the government an average of $135 million each year in claims. More alarming is the possibility that if the law was overturned and those injured were allowed to sue retroactively, the projected cost could be $2.7 billion over the next decade.

In 2009 a bill introduced in the house to overturn the Feres Doctrine gained some ground, but was soon quashed by Republican lawmakers who claimed that the bill was more likely to benefit trial attorneys than military families.

Supporters of the Feres Doctrine argue that doing away with the law would give a soldier who was injured during a medical procedure the potential for a monetary windfall, whereas a soldier who suffers the same injuries on the battlefield would only get administrative compensation. Supporters of the bill argued that it would force medical personnel and military hospitals to be more careful. The Supreme Court is expected to announce shortly whether they will hear the case.