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.

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 his barracks (8) and one undergoing elective medical treatment in a military hospital. (9)

The Court initially articulated two policy reasons for its holding. First, it found that the relationship between the government and members of the armed forces is "distinctively federal." (10) Second, the Court noted that the government has a no-fault statutory compensation plan for military personnel under the Veterans' Benefit Act. (11) Four years later, the Court added a third factor in United States v. Brown, reasoning that the Feres doctrine is necessary to protect and preserve military discipline. (12)

Two views

Although the Feres doctrine does not focus on the civilian dependents of military personnel, children's claims in FTCA birth injury cases routinely face challenges based on that decision. The government, in filing motions to dismiss for lack of jurisdiction under Feres, relies principally on the Fifth Circuit's ruling in Scales v. United States and the Sixth Circuit's in Irvin v. United States. Both cases alleged negligent prenatal care of military dependents.

In Scales, a servicewoman received a rubella vaccine during her pregnancy, which she claimed caused injury to her fetus. (13) The Fifth Circuit held that Feres barred her child's claim as a matter of law, concluding that the prenatal treatment provided to the mother was "inherently inseparable from the treatment accorded ... [the] fetus. (14) Focusing on the third factor of the Feres doctrine, the court held that "the need to preserve military discipline" trumped the civilian child's right to file suit, "even when there was no command relationship" between the child and the military doctor. (15)

Echoing this reasoning, the Sixth Circuit held in Irvin that Feres barred a former servicewoman's lawsuit on behalf of her deceased child for negligent prenatal care during her service. (16)

The Fourth, Eighth, and Eleventh circuits have taken a radically different approach. In Romero v. United States, the Fourth Circuit held that when the only injured claimant in a birth injury case is a civilian child, Feres does not bar the claim. Recognizing that the government has an independent duty of care to the child, the court noted that the sole purpose of prenatal treatment is to benefit the child--even though proper prenatal treatment necessarily involves the mother's body.

The Fourth Circuit concluded, "Because the purpose of the treatment was to insure the health of a civilian, not a service member, Feres does not apply." (17)

The Eighth Circuit addressed a factually similar case in Mossow v. United States. (18) A child of two active-duty parents was born with severe birth defects, allegedly as a result of medical negligence in a military hospital. The child's father sought legal advice from a staff attorney on base about bringing a medical malpractice claim. The lawyer told him that Feres prevented all family members from suing. After discovering that this advice was incorrect--that the child did, in fact, have a viable claim--the parents filed suit for legal and medical malpractice on the child's behalf.

The government argued that even if Feres did not directly bar the civilian child's claim, it barred the claim indirectly under the so-called genesis test. This test evolved from Stencel v. Aero Engineering Corp. v. United States, in which the Supreme Court held that Feres prohibited a third party's claim that was derivative of a serviceman's claim. (19) Other courts expanded the genesis test to bar claims for dependent civilians when their injures have a "genesis" in a service-related injury to a family member in the military. (20)

The Mossow court refused to apply the genesis test to the child's claims. Citing Romero, in which the Fourth Circuit declined to apply it, the Eighth Circuit agreed that "the genesis test is applicable to bar a civilian's claim under the FTCA only when the civilian's injury is derivative of a service-related injury to a service member." (21) As in most birth injury cases, only the child was injured; therefore, the court concluded, Feres did not bar the child's legal malpractice claim. (The court said it could not reinstate the medical negligence claim because the statute of limitations had run.)

Likewise, the Eleventh Circuit has refused to apply the Feres bar to civilian children. In Del Rio v. United States, an active-duty servicewoman brought suit under the FTCA, alleging that one of her twins died and the other was brain-damaged as a result of military obstetricians' negligent prenatal care. The Eleventh Circuit rejected the Fifth Circuit's argument that a civilian child's claim would impair military discipline and refused to block the claim under Feres. (22)

The court reviewed the evolution of the Feres doctrine, citing two Supreme Court cases: United States v. Shearer and United States v. Johnson. Like the Fifth Circuit in Scales, the Supreme Court in Shearer relied heavily on the military discipline factor to justify the doctrine. (23) Two years later, in Johnson, the Court "unequivocally expanded the Feres analysis to include all three rationales." (24)

The Eleventh Circuit declined to follow Scales because "the continuous evolution of the Feres doctrine by the Supreme Court ... now requires the application of all three rationales...." (25)

Applying the three factors, the Del Rio court found that the injured child, unlike his military parents, did not have a "distinctively federal" relationship with the government. The court noted that the government failed to identify any statutory benefits (akin to the Veterans' Benefit Act) to which the injured civilian child would be entitled. Finally, the court reasoned that while a suit brought by a child "may require the same type of inquiry into the physician's decisions as a suit by [the military parent], military discipline is not implicated to the same degree." (26) Therefore, the court concluded, the child's claim could proceed.

Practice points

Given the split in the circuit courts, how should you approach a case in which your client is a military parent whose child suffered birth injuries due to government negligence?

Plead properly. The first shot across the bow could be the most important. The complaint should specifically and clearly allege injury to the child only. The most persuasive way to argue that the child's claim is not barred is by ensuring that you make no claim for an injury to the mother. Also, the treatment that forms the basis of the negligence claim must be alleged as treatment for the sole benefit of the child.

For example, if the negligent act was a failure to perform a cesarean section, be sure to allege that the procedure was necessary to prevent injury to the child only. Avoid alleging any labor-related injures to the mother, such as complications arising from the use of epidural anesthesia.

Work with an expert. Make every effort to obtain, as early as possible, a medical expert who can testify that the treatment in question was given solely for the child's benefit and that the injuries are the child's only. When faced with the government's inevitable motion to dismiss, attach to the response a doctor's affidavit clearly making these statements.

Make a constitutional and equitable argument. Persuade the court that both the Constitution and basic principles of fairness require that your client's claims be heard. Point out that unlike his or her parents, the civilian child is ineligible for benefits under the Veterans' Benefit Act, and argue that the Seventh Amendment guarantees the child access to the courts.

Without the right to sue under the FTCA, the child would be left with no avenue to seek redress for birth injuries suffered at the hands of negligent military doctors and nurses. He or she would be completely shut out of the legal system, never compensated for long-term medical and life-care needs, simply because the child happened to be born to a military mother.

District courts even in the Fifth Circuit have recognized that this would be a grave injustice. For example, despite the Scales decision, District Judge Sam Sparks concluded recently in an unpublished order that Feres did not bar a civilian child's claim for injuries allegedly caused by negligent care his mother received during labor and delivery.

Finding that the Supreme Court's ruling in Johnson (five years after Scales) required the application of all three Feres factors, the court held:

   Applying each of the three rationales for
   the doctrine reiterated in Johnson to the
   facts of this case, the court finds none supports
   application of the Feres doctrine to Anthony
   Jr.'s claims. First, the relationship between a
   civilian newborn and the government can
   in no way be described as "distinctly federal"
   and, second, civilian infants do not benefit
   from the separate, no-fault comprehensive
   benefit scheme that exists for
   military personnel. Even the third factor,
   the preservation of military discipline,
   weighs in favor of not applying the Feres doctrine
   in this case. (27)

The court denied the government's motion to dismiss. (28)

The Supreme Court crafted the Feres doctrine, in part, to achieve legal consistency for members of the armed services, so that the outcome of a case would not depend on where the plaintiff brought the claim. In Stencel, the Court reasoned that it would be inconsistent with the "distinctively federal nature of the relationship between the federal government and its servicemen to make the government's liability dependent upon the fortuity of where the solider happened to be stationed at the time of the injury." (29)

Yet until the Supreme Court resolves the polarization of the circuits, that is precisely what determines whether Feres bars a child plaintiff's birth injury claims: Those unfortunate enough to be injured in the Fifth or Sixth circuits will probably see their lawsuits dismissed (unless more courts follow Sparks's lead); those injured in the Fourth, Eighth, or Eleventh circuits will be allowed to pursue their claims; and plaintiffs in other circuits face uncertainty.

In the meantime, artful pleading, careful drafting of expert reports, and a thorough analysis of the Feres decision and its progeny may help your child-client survive a defense challenge.

Notes

(1.) 340 U.S. 135 (1950).

(2.) 28 U.S.C.A. [subsection] 1346(b), 2401(b), 2671-2680 (2004).

(3.) See Cutshall v. United States, 75 F.3d 426, 427 (8th Cir. 1996); Hale v. United States, 416 F.2d 355, 359-60 (6th Cir. 1969), aff'd on remand, 452 F.2d 668 (6th Cir. 1971); Norris v. United States, 137E Supp. 11, 12 (E.D.N.Y. 1955), aff'd, 229 F.2d 439 (2d Cir. 1956).

(4.) Scales v. United States, 685 F.2d 970,973-74 (5th Cir. 1982), cert. denied, 460 U.S. 1082 (1983); Irvin v. United States, 845 F.2d 126, 131 (6th Cir.), cert. denied, 488 U.S. 976 (1988).

(5.) Romero v. United States, 954 F.2d 223, 225-227 (4th Cir. 1992); see also Mossow v. United States, 987 F.2d 1365 (8th Cir. 1992); Del Rio v. United States, 833 F.2d 282,287 (11th Cir. 1987).

(6.) 340 U.S. 135,146.

(7.) McCaleb v. United States, 572 F. Supp. 1260, 1264 (M.D. Tenn. 1983), aff'd, 746 F.2d 1477 (6th Cir. 1984); see also Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir. 1983).

(8.) See McCaleb, 572 F. Supp. 1260, 1263-64.

(9.) See Rayner v. United States, 760 F.2d 1217, 1218-19 (11th Cir.) (per curiam), cert. denied, 474 U.S. 851 (1985).

(10.) 340 U.S. 135, 143 (citing United States v. Standard Oil Co., 332 U.S. 301 (1947)).

(11.) Id. at 144 n.12 (citing 38 U.S.C. [subsection] 701-731 (1982)).

(12.) 348 U.S. 110, 112 (1954).

(13.) 685 F.2d 970, 971.

(14.) Id. at 974.

(15.) Id. at 973.

(16.) 845 F.2d 126, 131.

(17.) 954 F.2d 223, 225.

(18.) 987 F.2d 1365.

(19.) 431 U.S. 666, 674 (1977).

(20.) Lombard v. United States, 690 F.2d 215, 223 (D.C. Cir. 1982), cert. denied, 462 U.S. 1118 (1983); Mondelli v. United States, 711 F.2d 567 (3d Cir. 1983), cert. denied, 465 U.S. 1021 (1984); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981), cert. denied, 456 U.S. 989 (1982).

(21.) 987 F.2d 1365, 1369.

(22.) 833 F.2d 282, 287-88.

(23.) 473 U.S. 52, 56-57 (1985).

(24.) Del Rio, 833 F.2d 282, 285-86 (citing United States v. Johnson, 481 U.S. 681 (1987)).

(25.) Id. at 287.

(26.) Id.

(27.) Browner v. United States, No. A03 CA 422SS (W.D. Tex. May 14, 2004) (order denying motion to dismiss, at 7) (emphasis added) (on file with authors).

(28.) Id. at 8.

(29.) Scales, 685 F.2d 970,972 (citing Stencel, 431 U.S. 666, 671).

LAURIE HIGGINBOTHAM is an associate with Whitehurst, Harkness, Ozmun & Brees in Austin, Texas. JAMAL ALSAFFAR practices with the Michael Archuleta Law Firm in Austin.