The Supreme Court once again refused to hear a case challenging the 75-year-old rule that service members may not sue the government for service-related harm, including when military doctors commit malpractice.
The court rejected a case brought by a Maryland Air National Guardsman who was paralyzed in April 2018 by a botched back surgery at Walter Reed National Military Medical Center in Bethesda.
Staff Sgt. Ryan G. Carter, a dual-status guardsman who was in inactive status when he was operated on, sought to get the court to reconsider the so-called Feres Doctrine, a court ruling on the Federal Tort Claims Act, FTCA, which governs how U.S. citizens can sue the government for negligence or wrongdoing.
Though the court rejected Carter’s case without an opinion, Justice Clarence Thomas wrote a damning dissent of the decision by the court to not consider Carter’s case. Thomas is a long-time critic of the Feres Doctrine, which he said he considers to be a mistake by the court.
“Courts arbitrarily deprive injured servicemembers and their families of a remedy that Congress provided them. As I have said before, we should fix the mess that we have made,” Thomas wrote, adding that he hopes “one day” the court will overrule it and that it should “clarify the scope” of it.
Christopher Thomas Casciano, the lawyer representing Carter’s case, said they were disappointed by the decision not to take up the case and revisit the Feres doctrine, which has long faced criticism from service members, military families and advocacy groups who argue that it sets a double standard for civilians who can bring medical malpractice claims that U.S. troops are barred from pursuing.
“We don’t even get to brief it and have a discussion. It’s just a ‘no’ before we even get into the courthouse,” Casciano said. “That’s really frustrating.”
Conflicting standards
Since Justice Thomas has been seen as an advocate for overturning Feres, Casciano said his dissent reads as a road map for future litigants to bring other cases to challenge the Feres doctrine. In his opinion, Thomas offered “advice to the lower courts” to question whether previous decisions barred the lawsuit under “materially indistinguishable circumstances.”
“Basically he’s saying, ‘listen, at the district court level, at the trial court level, if you get one of these cases, unless you can find a case that is directly on point that’s been denied under Ferris previously — I mean directly on point with all the same facts — then you should let these cases move forward,’” Casciano said.
Thomas said in his opinion that the Supreme Court had “never articulated a coherent justification” and as a result, the lower courts have inconsistently applied the Feres doctrine.
He offered a list of cases with similar facts that led to split decisions among lower courts.
He noted cases that sought to sue the government over a wide range of topics, including sexual assault by another soldier, injuries from recreational activities with military-owned equipment, or exposure to toxic chemicals on a military base were considered part of military service. Others tried to assess whether servicemember children can sue for injuries sustained in utero from negligent prenatal care or if the doctrine extends to dual-status technicians like Carter who are both civilian employees and in the military reserves.
“These divergences are bound to continue. At minimum, this Court should articulate some clear limiting principles on the doctrine to minimize its absurdity and allow courts to apply it in a consistent and predictable way,” Thomas wrote.
Carter’s surgery stemmed from his medical history of “degenerative cervical disk disease, chronic neck pain, difficulty with fine motor skills, as well as numbness and tingling in his fingers,” according to the original case filed in Maryland. The government argued that his medical conditions were “in part” sustained from a pull-up fall during basic training which Carter and his lawyers did not dispute. In March 2018, doctors recommended Carter undergo surgery to alleviate his pain and prevent it from getting worse. During the surgery, Carter suffered “a loss and/or depression” in his measurable brain activity during a “negligent placement” of a spacer at his mid-cervical spine, a medical device used to create space and relieve nerve compression, according to court documents.
When Carter awoke from surgery, he was unable to move his extremities. A second corrective surgery was “unsuccessful” and he was transferred to a Department of Veteran Affairs hospital for spinal cord rehab therapy. Carter was recommended for discharge in 2019 with a 100% disability rating and in 2020, was relieved from duty.
Thomas also pointed out the conflicting standards for Carter as an inactive-duty reservist versus being a full-time soldier on furlough or a veteran.
“Had Carter been a veteran rather than an inactive-duty reservist, he unquestionably could have filed suit for the same injuries arising from the same treatment by the same military staff at the same military hospital,” he wrote. “Even if the Court wants to keep Feres in some form, I cannot see why claims with such a tenuous connection to military activity should fall within its reach.”
Casciano said cases challenging Feres rarely make it in front of the Supreme Court. Thomas wrote that the court’s “last word” on Feres came in 1987 during U.S. v. Johnson which looked at the lawsuit of a Coast Guard pilot’s widow who alleged their spouse had been killed by the negligence of civilian air traffic controllers. The Supreme Court determined that the case fell under the Feres doctrine.
“The courthouse doors are still closed and they will remain closed until someone acts and cleans up this mess that Judge Thomas said the Supreme Court created,” Casciano said.
Beyond the Supreme Court’s rejection, Casciano said they are pursuing an administrative process for medical malpractice claims under Stayskal Act.
“If you don’t hear from them in 6 months, you can deem that your claim has been denied and file your lawsuit in the federal district court,” Casciano said. “But without that opportunity, we don’t have that right with these military claims, so they just sit there and we have no recourse.”
Lauren Palladini was an 82nd Airborne Division soldier who survived a botched cesarean section at Womack Army Medical Center at Fort Bragg, North Carolina in 2019 whose case was included in Carter’s petition.
Palladini told Task & Purpose that pursuing malpractice claims through the administrative process has cost her tens of thousands of dollars in legal and expert fees.
“It’s not working. It’s not going to work,” Palladini said. “The same institution that has committed the malpractice is the same institution who gets to be the judge and the jury over that malpractice.”