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Immunity For Medical Malpractice Being Fought By Veterans

Since 1950, the law has protected military medical personnel from lawsuits even when they have committed medical malpractice. The law, commonly referred to as the Feres Doctrine, has been widely viewed as unfair and not sound. This is a view shared by many both inside and outside of the military. As a former Army Military Policeman, I cannot fathom a good reason why this should be the case.

Now, the Feres decision is once again in front of the United States Supreme Court, which has asked lawyers from both sides to supply more information prior to deciding whether to overturn the Feres decision. We find a ray of hope in Justice Scalia’s comment in a similar case that was heard in 1987, “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

The synopsis of the Feres decision is:

The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.

(a) The Tort Claims Act should be construed to fit, so far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent, and equitable whole.

(b) One of the purposes of the Act was to transfer from Congress to the courts the burden of examining tort claims against the Government, and Congress was not burdened with private bills on behalf of military and naval personnel, because a comprehensive system of relief had been authorized by statute for them and their dependents.

(c) The Act confers on the district courts broad jurisdiction over “civil actions on claims against the United States, for money damages,” but it remains for the courts to determine whether any claim is recognizable in law.

(d) It does not create new causes of action, but merely accepts for the Government liability under circumstances that would bring private liability into existence.

(e) There is no analogous liability of a “private individual” growing out of “like circumstances” when the relationship of the wronged to the wrongdoers in these cases is considered.

(f) The provision of the Act making “the law of the place where the act or omission occurred” govern any consequent liability is inconsistent with an intention to make the Government liable in the circumstances of these cases, since the relationship of the Government and members of its armed forces is “distinctively federal in character.”

(g) The failure of the Act to provide for any adjustment between the remedy provided therein and other established systems of compensation for injuries or death of those in the armed services is persuasive that the Tort Claims Act was not intended to be applicable in the circumstances of these cases.

(h) Brooks v. United States, is distinguished.

The fundamental problem with the Feres decision is that it extended the prohibition against military personnel for suing the federal government for battle-field injuries to any injuries “incident to military service.” This was not the intent of the law and this is why so many proponents of veteran’s rights are calling for the change.

Robert J. Fleming is an experienced Georgia medical malpractice lawyer who supports this change in the law to help protect our American servicemen and women.  Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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