“The FERES doctrine is a U.S. law from a longstanding U.S. Supreme Court case which prevents active duty service men and women from successfully pursuing an FTCA claim or lawsuit, and a MCA claim, when the medical care that is the subject of the military medical malpractice was received “incident” to their service. In practical terms, if a military service member receives the military treatment because of their military status, Feres prohibits that active duty service man or women from pursuing a military medical malpractice claim or lawsuit against the government.
The Feres doctrine may also prohibit “derivative” claims of a military members family members. For example, a spouse could not successfully pursue a wrongful death claim of her service member husband who died as a result of military medical care he received incident to his service. However, the converse is not true; the Feres doctrine would not prohibit a “derivative” wrongful death claim of a military service member when his spouse died as a result of military medical care that she received incident to his military service. The difference is her civilian dependent status v. his active duty status.
Retirees, like civilian dependents, are not prohibited by the Feres doctrine from pursuing medical malpractice claims against the military health care system. This includes both the retired military member and their spouse. The difference is their status as
retired vs. active military members. Retirees and their spouses enjoy the right of not only filing a claim for negligent care against themselves, but could also file a derivative claim for their other spouses injuries, regardless of which one served in the military.
One unique situation should be mentioned. When an active duty service member delivers a baby who is injured as a result of military medical malpractice that occurred during her pregnancy, there is some difference in the law as to whether she and the child can successfully pursue a claim. In this situation, a primary claim of the child, and derivative claims of the parents, should always be filed so as to preserve a potentially successful claim or lawsuit.”