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DoD Doctors: Sheltered from Litigation

Feres Doctrine Appeals

On February 4, 1997 three federal judges with the Ninth U. S. Circuit Court of Appeals in San Francisco ruled that government negligence could have led to the 1991 death of Army Specialist Ronald E. Dreier who fell into a concrete water-drainage channel near a picnic area of Fort Lewis, Washington and drowned (Corollo, 1997). Defense attorney William J. Carlson of Bellevue, Washington said "Dreier’s death had absolutely nothing to do with his active-duty status. It could have happened to anyone, military or not military, at the site of his death" (p. 1).

Government attorneys built their case around the heretofore impenetrable Feres Doctrine, but with the judges ruling, other service members may now have an avenue to sue the government for negligence. The Supreme Court will consider two separate cases challenging the Feres Doctrine on behalf of military members.

In the first case, a promising track star hoping to qualify for the 1992 Olympics was permanently injured when military doctors improperly applied pressurized stockings to his legs during a seven-hour surgical procedure. He awoke from surgery to find his lower legs swollen to the size of his upper legs. Doctors diagnosed Jones’ leg condition as compartment syndrome requiring an immediate operation to relieve the pressure. Defense attorney Burton I. Weinstein filed a federal lawsuit on Jones’ behalf in late 1995. A judge for the U. S. District Court for the Northern District of Illinois ruled against Jones, upholding the Feres Doctrine. The decision was appealed to the Seventh District Court of Appeals in Chicago and was again decided in favor of the Feres Doctrine. Weinstein plans to file a request for reconsideration before the Supreme Court in time for the July 23rd deadline.

In the second case, Darrel Clark, who served with the 18th Airborne Corps during the Gulf War, claims the Army failed to inform him that possible exposure to chemical-warfare agents in the combat theater might cause him to father a child with birth defects. He filed a federal lawsuit in the spring of 1996 on behalf of his daughter who was born in 1992 with severe birth defects. Both the federal district court and the U.S. Court of Appeals for the Fifth Circuit ruled against Clark and upheld the Feres Doctrine even though the child was an unwitting victim of the negligence. Clark’s attorneys, Carol Lomax and Scott Roberts, filed a new complaint before the Supreme Court on September 9, 1997 urging the court to rule on their clients’ behalf, and to reconcile two earlier cases in which U. S. Circuit Courts reached opposite conclusions concerning the government’s liability for birth defects of military children.