The Feres Doctrine: This 1950 Law Is Hurting Service Members

Left: Army Green Beret Richard Stayskal, who is trying to overturn the Feres Doctrine. Right: Jordan Way, a sailor who died because of malpractice.

A poster carried by the mother of a late Navy hospital corpsman is straight to the point: “My son’s voice was silenced because of the Feres Doctrine.” 

That mother’s name is Suzi Way, and her son, Jordan Way, underwent a routine shoulder surgery in December of 2017 at the naval hospital at Twentynine Palms. Four days later, he died. And because of the Feres Doctrine, no one has to answer for it. 

 

What is the Feres Doctrine?

The Feres Doctrine was implemented in 1950 – almost 70 years ago – by a Supreme Court case that found the U.S. not liable for injuries sustained by service members during their service. Essentially, active military members and their families cannot collect damages from the government for injuries they experience on the job (this doesn’t encompass disability compensation or medical care). 

The real impact it’s having is that military families cannot sue military doctors for malpractice. According to KOMO News, Jordan Way was given over 80 Oxycodone pills when he complained of severe pain post-surgery, and his official cause of death was opioid toxicity; because he took pills prescribed by his doctors, whom he trusted for his care. Legally, there’s nothing the Way family can do about it, and they’re looking to change that. 

 

Arguments for the Feres Doctrine

Service members are in the unique position of facing higher risk of injury and death, as many of them work very physical jobs, and all of them have the potential to be deployed into combat zones. What the Feres Doctrine is saying is that you sign up for this risk when you take the oath to serve — that this intrinsic risk of injury, disability, and death is mutually understood by both the military and its members. It’s saying that if any of these tragedies befall you, you shouldn’t be able to seek reparations from your employer (the government), because you knowingly entered a position with these risks. 

Paul Figley, a professor of legal rhetoric at the Washington College of Law, supports the Feres Doctrine. In a recent hearing, he testified: “The unique relationship between the United States and its service members would be undermined if exposed to our adversarial tort system.” 

Figley pointed out workers’ compensation as a system that is already in place to deal with service member injury, and others believe that VA disability and compensation similarly address the issues people have with the Feres Doctrine.

Maj. Gen. John D. Altenburg threw his hat in the ring, saying that civil litigation would be “disruptive” to the military’s mission of combat readiness. A DoD representative predicted that an overturn of the Feres Doctrine would mean a change to military medicine — and that military doctors would practice more “defensive medicine” instead of just best practice. 

“[This] can include performing excess tests and procedures that are not necessary for the patient, may harm the patient, and increases costs to the Department.” 


Sen. Lindsey Graham (R-S.C.) is a vocal supporter of the Feres Doctrine. Credit: Bloomberg Government.

Arguments Against It

One major issue that military families have with the Feres Doctrine is inconsistency. Although it generally prevents them from legally implicating the military in service-related injuries or death, it’s not very clear on what “service-related” means. 

For example, what if a service member is on active duty but dies while taking personal leave? This St. John’s Law review highlights how muddied this piece of “justice” can get when faced with two very similar circumstances. 

The review brings up two separate, but similar, cases of service members who died while driving away from their posts. Soldier Jack Parker was on personal leave to PCS from Fort Hood to New Mexico when an army vehicle swerved into his lane and collided with him. Sailor Carvel Gramlich was headed away from his ship for an afternoon ashore when his friend lost control of the vehicle and drove into a body of water, causing Gramlich to drown. 

In both cases, the service members’ families sought damages from the U.S. government — but only one of them was successful. 

Gramlich’s family was not able to receive reparations of any kind because the court deemed his death service-related, since he was on active duty and he died on a military post. Parker’s widow, however, was not barred from reparations by the Feres Doctrine, because he was “merely passing through the base on his way home” at the time of death. 

From an outsider’s perspective, the differences between the Gramlich case and the Parker case are negligible. Both occurred on a military installation, on the service member’s personal time, and accidentally. But for some reason, the Feres Doctrine affected one of these families and not the other.  

Another glaringly obvious issue with the Feres Doctrine is that malpractice happens in the military. It happens everywhere; in the world of medicine, it’s unavoidable. In the case of Jordan Way, it didn’t even happen overseas in some dangerous war zone — it happened in California, after a simple procedure to fix his shoulder. So why should service members have to put up with improper treatment, when the penalties of which can be permanent injury or death? 

 

Will the Feres Doctrine be overturned?

The Richard Stayskal Bill was recently passed by the House and will now makes its way to the Senate. There’s a very real possibility that it will be approved by the Senate, in which case the Feres Doctrine will be overturned. 

The bill’s namesake, Sergeant Richard Stayskal, is a Green Beret who’s spent nearly 20 years serving his country. The military doctors he was seeing failed to detect cancer in his lungs until it was too late — now, the cancer has spread and is diagnosed as terminal. According to NBC News, Stayskal underwent two different scans over the course of six months where no one noticed his tumor, even after an abornamility was flagged. Stayskal testified to Congress in April. 

“The hardest thing I have to do is explain to my children when they ask me, this doesn’t make sense. How is this happening? And I have no good answer to give them,” he said. 

Stayskal and his family, along with the Way family and many others, are hopeful that this outdated law will be struck down by the Senate; and that service members can be on the same legal footing as their civilian counterparts — the way it always should have been. 

 

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