When malpractice claims get mixed up with the military, the rules get very tricky. There is a legal concept called the Feres doctrine. This is a doctrine that bars claims against the federal government by members of the military and their families for injuries they receive “incident to military service.” It’s what prevents wounded soldiers from filing claims against the government for getting injured in war. It also often prevents them from filing malpractice claims for the treatment they get in military hospitals.
But what if the victim was a new baby? That’s a question the Supreme Court may consider taking up. An Air Force captain gave birth at a military hospital via c-section. She was administered a drug that she had a known allergy to and was listed as such in her medical records. When she was given anti-allergy medication her blood pressure dropped and deprived her child of oxygen in the womb. The girl, now six, suffered brain and nerve damage as a result and requires weekly therapy treatments.
The captain filed suit against the hospital, but the district court dismissed the case citing the Feres doctrine. She appealed to the 10th Circuit Court of Appeals and they upheld the ruling because the injuries sustained to the child were directly related to her mother’s injuries, using the so-called “genesis test”. Now the captain is appealing to the Supreme Court, and several groups have filed briefs supporting the captain and her family.
We hope that this family can get the compensation they need. If you are seeking to file a medical malpractice claim and you live in the State of New York, contact Bottar Leone for a consultation. We can help.