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Fighting for military mother's newborn: when a servicewoman receives negligent prenatal care, can her civilian child be compensated for birth injuries? The federal circuits disagree, but lawyers can glean strategies from the courts that allow these claims.

Article Excerpt
For more than 50 years, courts interpreting the so-called Feres doctrine have aspired to achieve that highest of all legal virtues: consistency. The doctrine, crafted by the Supreme Court in 1950 in Feres v. United States, (1) prohibits men and women in the armed forces from bringing lawsuits under the Federal Tort Claims Act (FTCA) (2) for injuries arising out of their military-service activities. Courts uniformly agree that Feres acts as a clear barrier to tort claims for injuries "incident to service" by military plaintiffs. (3)

The waters begin to muddy, however, when FTCA claims involve birth injuries to children of military mothers. Despite the underlying rationale of Feres, the circuits are sharply split on the question of whether the doctrine applies to such cases. The Fifth and Sixth circuits have held that Feres bars servicewomen from bringing claims for prenatal injuries on behalf of their children. (4) The Fourth, Eighth, and Eleventh circuits have concluded that Feres does not apply to these claims. (5)

Given the tension among the circuits, this issue is ripe for Supreme Court consideration. Until the question is settled, plaintiff attorneys representing military families of birth-injured children can defeat a Feres challenge by tracing the evolution of the doctrine from its origins to recent court decisions allowing civilian children to have their day in court.

The FTCA waives sovereign immunity and provides a judicial remedy to those injured as a result of negligent conduct by U.S. government employees. In many cases, the amount of recoverable damages is effectively the same as that available from a private defendant.

The Feres doctrine is a judicially created exception to the government's waiver of sovereign immunity under the act. In Feres, the Supreme Court held that the United States "is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." (6)

Whether a claim is considered incident to active-duty military service is a question of fact for the court. (7) The FTCA does not define "incident to service," but courts have construed the phrase broadly. For example, courts have applied the Feres bar to claims of an "off duty" military plaintiff who was injured while sleeping in...

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