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Military family asks Supreme Court to change malpractice rule

A Texas man whose daughter suffered birth injuries during a botched cesarean section delivery at a military hospital is petitioning the U.S. Supreme Court to change a rule that bars active military members from suing the government over injuries that are “incident to military service.” The case could impact the rights of military service members in Oregon and nationwide.

In 2009, the plaintiff’s wife, an active military member, was given a drug that she had a known allergy to during a C-section. When given an antihistamine to counter the resulting allergic reaction, her blood pressure dropped dangerously, and her baby suffered brain and nerve damage from oxygen deprivation. The girl, now 6, requires weekly occupational and physical therapy and wears braces on her legs.

The plaintiff filed a medical malpractice lawsuit against the government seeking compensation for his daughter’s injuries, but his case was dismissed by a lower court and an appellate court, which both cited the Feres doctrine as basis for their dismissals. The Feres doctrine, established in 1950, is a controversial provision that says active military members are not protected by the Federal Tort Claims Act. This means active service members cannot sue the government over injuries suffered during war and war training. It also means service members have no legal recourse if they are the victims of medical malpractice by military doctors.

The plaintiff hopes the Supreme Court will change the Feres doctrine to allow active military members to sue the government over medical malpractice. However, the high court receives approximately 10,000 petitions annually and only agrees to hear around 80.

Injuries incurred during the delivery process may require a lifetime of specialized medical care. A parent whose child has been injured in this manner may want to speak with a medical malpractice attorney to see what recourse for obtaining compensation for those anticipated expenses is available.