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Editorial: Congress can fix Feres

After 21-year-old Nathan Hafterson died during a routine medical procedure in March 2006, his family might well have expected they could sue the doctors and hospital whose negligence they say killed him.

But Hafterson was a petty officer in the Navy, and the doctors were employed by Naval Hospital Jacksonville, Fla. And that means Hafterson’s family does not have the same legal rights to sue afforded every other American — the right to seek compensatory damages with a medical malpractice suit.

These lawsuits are barred not by legislation, but rather by a legal precedent known as the Feres Doctrine. Named for a 1950 Supreme Court decision, the doctrine has been consistently cited by courts for the past 57 years to bar lawsuits brought by service members against the federal government.

There is logic behind some of what Feres stands for. Combat commanders should not fear a lawsuit if troops under their command are killed, for example, which is exactly what Congress intended when it wrote a military exemption to the law that allows lawsuits against the federal government.

But carving out an exemption for medical malpractice outside of the war zone is also logical.

Doing so would not undermine military order and discipline, nor would it harm morale — the two arguments most often made in support of the doctrine.

On the other hand, legal accountability might actually help improve the medical care military members receive, which could improve morale.

Congress has not seriously tried to legislate a remedy for this injustice since 1989. Another try is long overdue.