Sixth circuit waives Feres doctrine for prenatal injuries.

The Sixth Circuit has allowed a lawsuit against a U.S. Navy doctor to go forward, ruling that the case is not barred by the so-called Feres doctrine, which limits government liability under the Federal Tort Claims Act (FTCA). The decision clears the way for a case alleging that the doctor's improper prenatal care led to birth defects in a servicewoman's child. (Brown v. United States, 462 F.3d 609 (6th Cir. 2006).)

"The effect of this ruling could be enormous," said Jamal Alsaffar, an Austin, Texas, lawyer who represented the plaintiff. "This has really changed what has been happening over the past 50 years."

In 2000, Deborah Brown, who was on active duty with the Navy, began preconception counseling with the military medical service. A doctor prescribed prenatal vitamins containing folic acid, which is taken by women to prevent neural tube defects in developing fetuses.

Two months later, Captain Leland Mills, who was the senior medical officer at the clinic Deborah attended, told her to discontinue taking the vitamins. Deborah became pregnant a month later, at which point Mills told her to resume taking the folic acid supplements.

The lawsuit brought by Brown's husband, Timothy, claims that Mills's recommendation to resume the vitamins came too late: When the Browns' daughter Melody was born, the infant was diagnosed with spina bifida and related neurological problems. Timothy Brown sued Mills on Melody's behalf, claiming that the doctor's negligence caused her injuries.

The FTCA allows people injured by a government actor to seek legal redress. In 1950, the U.S. Supreme Court established an exception to the FTCA in Fetes v. United States, holding that members of the military could not hold the government liable for injuries they received while on active military duty. (340 U.S. 135 (1950).)

Since then, servicewomen claiming prenatal injuries have challenged Feres numerous times--with mixed success. The courts have sprit almost down the middle on the question of whether Feres applies to civilian children of military mothers. (See Laurie Higginbotham & Jamal Alsaffar, Fighting for Military Mothers 'Newborns, TRIAL 44 (Dec. 2004).)

In reaching its decision, the Sixth Circuit noted that if Melody's injury was the result of harm done to her mother, Feres would apply. But as Judge Martha Craig Daughtrey wrote for the court, "the injury to the fetus in this case was direct and not derivative."

"We knew from the get-go that we had to focus on the fact that the injured child was a civilian," said Alsaffar. "Other complaints have alleged a dual injury. What we said here was: The medically negligent care was solely for the benefit of the civilian child and injured only the civilian child. No military person was hurt, the medical care was not for the mother, and the there was no association with the military."

The judges also found that the case did not meet the three tests that the Supreme Court laid out in Feres.

"None of the three considerations typically invoked to support application of the Feres doctrine seems to apply with particular force in the case of a servicewoman seeking prenatal care in anticipation of, or during, a pregnancy," wrote Daughtrey. "In this case, the relationship between the civilian child, Melody Brown, and the government is not distinctly federal in nature. Moreover, the court has no indication that Melody Brown could recover benefits under the Veterans' Benefits Act for her injuries. Finally, the question of whether a doctor should recommend that an expectant mother take prenatal vitamins with folic acid seems to have little, if any, bearing upon military discipline and would not require judicial scrutiny of the operations of the armed services."

Alsaffar said a challenge to the Feres doctrine on behalf of civilian children was long overdue.

"This is obviously a very big deal," he said. "This will open up courthouse doors that were closed for a long time."