The Feres Doctrine Strikes Again.

The doctor of a pregnant servicewoman created a pregnancy profile for her, which imposed a number of restrictions on her activities such as “not carry and fire weapons, move with ‘fighting loads,’ engage in heavy lifting or physical training testing, or run/walk long distances.” Her supervisors ignored her pregnancy profile. She underwent an emergency procedure in an effort to prevent premature birth. Nonetheless, and despite her doctor specifically informing Army personnel she was “high risk” and was unable to perform her normal work activities for the remainder of her pregnancy, her commanding officers continued to disregard the doctor’s instructions. Her son was born prematurely and died 30 minutes after birth. The baby’s father filed an action in federal district court asserting claims under the Federal Tort Claims Act. Pursuant to Feres v. United States (1950) 340 U.S. 135, [71 S.Ct. 153; 95 L.Ed. 152], the case was dismissed. Feres held “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” In affirming the dismissal, the Ninth Circuit stated: “We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long.  The Feres doctrine has generated pained affirmances from this circuit. Yet, unless and until Congress or the Supreme Court choose to ‘confine the unfairness and irrationality that [Feres] has bred, we are bound by controlling precedent.” (Ritchie v. United States of America (Ninth Cir.; October 24, 2013) 733 F.3d 871.)