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Active duty mother appeals for damages from government for birth injury

All of us depend on medical care at some point, and all of us expect that our providers will exercise an appropriate degree of care in treating us. When providers fail to do this, we know that we have the ability to seek compensation for our injuries, even if we ultimately choose not to do so for one reason or another.

Veterans also have these expectations, but pursuing damages for medical injuries is a little different for vets than it is for civilians. This is especially the case when it comes to active-duty veterans, who are generally unable to pursue the federal government for any damages related to medical injuries. This rule, which comes from a case decided in 1950, is known as the Feres doctrine.

The Feres doctrine is considered to be established precedent, but the doctrine has been challenged in the past. The most recent challenge to the rule involves a case out of Colorado in which an active-duty mother attempted to sue the government on behalf of her baby, who was born with brain damage and severe disabilities due to medications she was given prior to the child's birth.

The case was dismissed at the trial level, and an appeal affirmed that decision on the grounds that the so-called genesis test was not satisfied. The genesis test is used to determine whether a civilian third party may recover for injuries stemming from the injury of a military member. Under the test, the key is whether the third party's injury originated in an injury suffered by the military member "incident to service."

This is an important point, and has an important impact on whether damages are available for birth injuries affecting the children of active military members. In our next post, we'll look further at this issue and what is at stake for the Feres doctrine in this recent case.


Military Times, "Birth injury lawsuit revives Feres debate," Patricia Kime, May 28, 2015. 

United States Court of Appeals Tenth Circuit, "Ortiz vs. United State," May 15, 2015. 

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