Family petitions Supreme Court in birth injury malpractice claim

When the father of a girl who was born with birth defects sued the federal government for medical malpractice, the courts dismissed it based on the Feres doctrine. For New York readers who are not aware, the Feres doctrine keeps members of the armed forces and their families from filing injury claims against the federal government when the injuries occur during military duty.

The little girl was born to an Air Force captain at Evans Army Community Hospital in Colorado in 2009. During preparations for a Cesarean section, which was planned, the staff administered a medication that the mother was allergic to and that was listed on her medical record. The staff gave her an antihistamine to counteract the allergy, which caused low blood pressure. This deprived the baby of oxygen, which resulted in brain and nerve damage. Now 6 years old, the little girl has to wear leg braces and attend physical and occupational therapy every week. Her school also provides special accommodations.

The father sued the hospital in district court for medical malpractice in anticipation of his daughter's future medical requirements, but the court rejected the case. He appealed to the 10th Circuit Court of Appeals, which upheld the decision on the basis that the girl's injuries are the result of the mother's injuries, making the Feres doctrine applicable.

The father believes that it is wrong to extend the doctrine to kids who are not in military service and to apply it to medical errors that occur in military hospitals. He petitioned the Supreme Court to consider the case, but the Supreme Court has refused to hear petitions in the past. It was due to respond on Dec. 18 but requested and received a 30-day extension.

Lawsuits involving active military personnel may be more complex than cases that involve members of the general public. Military personnel who believe that the government has wronged them could get advice from lawyers before filing lawsuits.