When a veteran is victimized by medical malpractice at a VA facility in Oregon or another state, he or she will have the right to sue for compensatory damages under federal law. However, some people have expressed shock to discover that the same privilege is not available to active members of the military. This is due to an archaic rule that broadly takes away, with a broad brush, actions for medical malpractice from all military people.

It is understandable that when a soldier is injured in the line of battle, the limitation against malpractice benefits would apply. However, the judge-made rule called the Feres rule prohibits all military members from seeking relief. Thus, a pregnant woman who is subjected to a medically incompetent birth delivery cannot collect damages for her disabled, brain-damaged child. If the woman herself dies due to medical negligence, leaving her newborn behind, to suffer life's travails without a mother, malpractice relief is not available.

This was exemplified in 2013 by a real-life example when a 33-year-old woman died due to medical negligence during the delivery of her baby. The daughter was healthy. Ironically, the decedent had been a labor and delivery nurse and a Navy Lieutenant. She died of blood loss from the delivery, something that happens only very rarely in modern hospitals. A blood transfusion was ordered too late to save the woman's life.

Attempts in that case resulted in the rejections of the estate's claims for compensation. Many expert military litigators and other tort attorneys criticize the Feres doctrine, which comes from a 1950 U.S. Supreme Court case. Although the case rightly protects combat personnel from being sued for medical malpractice, it wrongfully protects military hospitals and medical providers located here in Oregon and elsewhere, in places far removed from the battlefields. Experts call on the Supreme Court to revisit the doctrine and make clear that injuries "incident to service" do not apply to birth cases, surgery for non-military causes and the like.

Source: militarytimes.com, "Tragedy and injustice: The heartbreaking truth about military medical malpractice", Patricia Kime, July 10, 2016