The Feres doctrine is visited upon the daughter (updated 10/16/15)

Ortiz v. United States, No. 13-1500 (10th Cir. May 15, 2015).

A 1506 woodcut depicting the birth of Julius Caesar (credit: the National Library of Medicine)

A 1506 woodcut depicting the birth of Julius Caesar (credit: the National Library of Medicine)

The Supreme Court decided Feres v. United States in 1950, when the draft was still in effect and the Korean War had just broken out. Feres held that the federal government wasn’t liable to servicemen under the Federal Tort Claims Act when servicemen’s injuries arose out of, or happened in the course of, “activity incident to service.” 

The scope of the Feres doctrine has arguably grown over the years. The lower courts have applied the doctrine, for example, to bar claims by civilians as long as their injury originated in a Feres-barred injury to a serviceman. So if a serviceman has been exposed to radiation during active duty, and this radiation caused miscarriages in the serviceman’s wife or birth defects in his children, neither the wife nor the children may recover for their injuries. Meanwhile, the Feres doctrine has received widespread criticism—including from members of the Supreme Court. Still, it remains the law that the Tenth Circuit must apply to this case.

This case’s facts are unhappy indeed. Captain Heather Ortiz of the U.S. Air Force was admitted to an army hospital to give birth to her child via C-section. According to Captain Ortiz’s complaint, the doctors dosed her with a drug to which she was allergic. To counteract the allergy, they gave her Benadryl. The Benadryl dropped her blood pressure, which caused her child to suffer brain trauma. The trauma could have been prevented, Captain Ortiz alleges, if the doctors had properly monitored her baby’s heart rate during labor. 

The majority of this Tenth Circuit panel holds that the injuries that Captain Ortiz’s baby sustained had their genesis in an injury Captain Ortiz herself sustained: a drop in her blood pressure. And because Captain Ortiz sustained that injury in the course of her military service, at a military hospital, at the hands of military personnel, her injury is covered by Feres. And that, in turn, means that her baby’s injury is covered by Feres. Recovery for that injury is therefore barred. 

Judge Ebel concurs in the result, but holds that the injury is covered by Feres for a slightly different reason: namely, because the baby’s injuries “flowed directly from the military’s immunized”—i.e., Feres-immunized—“conduct toward its pregnant servicemember.”

UPDATE (10/16/15): The plaintiff has now filed a petition for certiorari (via How Appealing).