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Veteran Moves to Challenge Feres Doctrine in Supreme Court

— October 11, 2018

A former Coast Guard officer is hoping to challenge the Feres doctrine ban on military injury claims before the Supreme Court.

Walter Daniel, a Coast Guard veteran, says he still doesn’t know what happened when his wife died in childbirth.

Herself a servicemember, Navy Lt. Rebekah Daniel was due to give birth at a Washing state military hospital. But within hours of a successful delivery, Daniel was dead.

Nobody really knows what wrong in the procedure. Daniel, a healthy, 33-year old woman—a labor and delivery nurse herself—bled to death at Naval Hospital Bremerton. She should have been low-risk by any accounting.

And according to Walter Daniel, nobody really tried to figure out what had gone wrong, either.

“There was no timeline, no records of what steps were taken,” he said. “I’ve had no answers.”

Daniel tried to file a wrongful death lawsuit in 2015 but it was dismissed. His appeals were turned down, too, not based on the merits of his claim but the so-called ‘Feres doctrine.’

Feres, writes KHN, is a ’68-year old federal ruling that bars active-duty military members from suing the federal government for injuries.’

Daniel and his lawyer are petitioning the Supreme Court to make an amendment—one that’d let service members sue for medical malpractice just the same way civilians can.

The military’s health system, by Kaiser Health News’ estimation, encompasses 54 hospitals and 377 medical clinics. In total, it serves 9.4 million Americans, of which nearly 1.4 million are active-duty.

“I don’t want this to happen to any other family,” said Ddaniel.

The Feres doctrine hasn’t been reconsidered by the Supreme Court in decades.

The last time it went up before the justices, a 5-4 decision ensured its survival.

That decision, says KHN, ‘drew a scathing dissent from Justice Antonin Scalia, who declared the rule should be scrapped.’

Feres was wrongly decided and hearily deserves the widespread, almost universal criticism it has received,” Scalia wrote.

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Ever since then, the court hasn’t accepted any petitions challenging Feres’ continued application. KHN says the chances for any single case are slim—of the 7,000 to 8,000 submitted each term, the justices only accept about 80.

Daniel and his attorney, Andrew Hoyal of Salem, ‘insist that the circumstances’ of the lieutenant’s death warrant reconsideration.

“We thought if we’re ever going to take a shot at the Feres doctrine, this is the case to do it,” Hoyal said. “It was clear negligence. It was an awful situation. And every civilian in the country would be able to bring a lawsuit to get accountability, except for members of the service.

“She was treated different because she had lieutenant’s bars,” said Hoyal.

Hoyal claims that doctors failed to perform critical tests or employ other measures designed to curb blood loss.

However, Naval officials claim that the circumstances of Daniel’s death were “thoroughly examined in a quality review process.”

The results of that review process can’t be released, they say, because of Walter Daniel’s pending litigation.

KHN speculates that, with the inclusion of Brett Kavanaugh, the Supreme Court’s more conservative character may lend to a military lawsuit being given priority it once lacked. And progressive justices may be inclined to lend further support to the workers’ rights shared by servicemen and women.

“The Feres doctrine,” explained Dwight Stirling, chief executive of the Center for Law and Military Policy, “does not divide the court members on your standard ideological grounds. It tends to scramble the typical calculus.”

Walter Daniel says he’s grieved and watched as life moves on, his 4-year old daughter without a mother. He hopes the case, if considered, can inspire justice for others.

“It’s not about the Daniel family, it’s about those thousands of service members throughout the world who are affected by this rule,” he said. “That’s what our fight is for.”


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