Justice Department offers settlement on Feres case, halting Supreme Court consideration

The Justice Department has offered to settle a lawsuit filed by the family of military child who was injured during birth to an active-duty Air Force officer at a military hospital.

An attorney for the family of Capt. Heather Ortiz said the federal government approached the Ortizes to settle the case, which had been under consideration for arguments before the U.S. Supreme Court.

Supporters had hoped the facts of the case, which involve the rights of active-duty women and their unborn children, as well as a discrepancy among circuit courts on the outcome of similar cases, would persuade the court to weigh in on the Feres doctrine, the controversial ruling that bars service members from suing the government for nearly any reason, including medical malpractice

Attorney Laurie Higginbotham said a settlement in Ortiz v. the United States is forthcoming, pending approval by the court and a third party appointed to decide whether the agreement is in the best interest of the child, Isabella Ortiz.

Heather Ortiz's husband, Jorge Ortiz, filed the lawsuit after his daughter's birth in 2009 at Evans Army Community Hospital, Fort Carson, Colorado. Isabella suffered brain and nerve damage when her mother was given the wrong medications while in labor.

The district court and 10th Circuit Court of Appeals ruled the Feres doctrine applied in the case, deeming Isabella's injuries as incidental to an injury to her mother during childbirth. Heather Ortiz's blood pressure dropped as a reaction to medications, depriving her unborn baby of oxygen.

The Ortizes filed a petition to the U.S. Supreme Court last October to consider their case. The chances of the Supreme Court accepting the case were slim regardless — the grant rate of petitions is less than 5 percent — but the settlement discussions dash any possibility of consideration, pending settlement approval and funding.

Critics of Feres said that the settlement leaves questions regarding the controversial ruling unresolved.

"The court should revisit the definition of 'incident to service,'" said Richard Custin, professor of business law and ethics at the University of San Diego. "The root of all of these troublesome issues begins and ends with the faulty definition of 'incident to service.'"

The settlement amount has not been announced. Higginbotham said while the offer staves off any immediate ruling on Feres, she believes the issues over an active-duty troop's ability to seek compensation for medical errors will resurface.

"If the Department of Justice continues to file motions to dismiss claims of children of military mothers, we will be raising this issue again. I have a couple of birth injury cases where the mother was active duty, so I suppose we will find out," Higginbotham said.

Patricia Kime covers military and veterans health care and medicine for Military Times. She can be reached at pkime@militarytimes.com

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