news
07-03-2015, 01:18 AM
Co-written by Alex Stein
It's been a century since the first woman enlisted in a non-nursing role in the United States armed forces, 30 years later that a federal law made women a permanent part of the military, and another 30 since all branches of the military except combat arms have been open to female officers. Today, servicewomen see combat almost as their male counterparts and a greater proportion of women are commissioned officers (http://www.pewsocialtrends.org/files/2011/12/women-in-the-military.pdf). Many start families while serving their country.
Remarkably, these servicewomen lack protection against even the most egregious malpractice during pregnancy. This frustrates their meaningful ability to exercise their reproductive rights and denies them the compensation necessary to care for children with disabilities. An outdated Supreme Court doctrine and congressional loophole leaves servicewomen unable to recover for the negligent prenatal care they receive in a military hospital. However egregious the malpractice and grave the suffering it causes, our law offers no recourse for the wrong done to the woman's procreative interest and to her child's physical and mental wellbeing.
Take the recent case of Captain Heather Ortiz, an active-duty servicemember in the U.S. Air Force who was admitted to a military hospital to deliver her baby by C-section. In preparation for that surgery, hospital staff made a critical mistake by administering Captain Ortiz drugs that reduced her blood pressure to dangerously low levels. As a result, her baby girl, I.O., was deprived of oxygen in utero and born with severe brain damage. I.O. requires around-the-clock supervision and care and likely will for the rest of her life. In a decision announced last month, however, the Tenth Circuit denied redress to Captain Ortiz and I.O. The Court lamented that "the facts here exemplify the overbreadth (and unfairness) of th[e] [Supreme Court] doctrine" that exempts the government from liability for injuries that are related to military service, "but is not ours to overrule."
That "incident to service" exemption comes from a 1950 case, Feres v. United States (https://supreme.justia.com/cases/federal/us/340/135/case.html), in which the Supreme Court held that the government pays no tort compensation for injuries that active servicemembers sustain due to negligence by others in the armed forces. The Court reasoned that a compensation program the Veterans Benefit Act established for injured and fallen soldiers works well enough and that tort claims shouldn't be permitted to stand between the army and its soldiers. But the Veterans program has a hole: it offers nothing for Captain Ortiz because her injured civilian child is not a veteran. Had Heather Ortiz been the civilian wife of a serviceman, Feres immunity wouldn't apply and the government would have to cover the expenses of I.O.'s severe incapacitation Because Captain Ortiz is a servicewoman, however, she and I.O. must go uncompensated.
Back in 1950, when women comprised just a tiny fraction of active servicemembers, the Supreme Court could not foresee this blatant discrimination. But should Captain Ortiz appeal her case to that high court, as her lawyers apparently plan to, there can no longer be any excuse to deprive servicewomen and their newborns of the compensatory relief they desperately need and squarely deserve.
Consider the 2001 case of Yvonne Smith, an active-duty member of the Air Force who was negligently denied fetal tests at a military hospital, "prevent[ing] [her] from discovering that [her son] Elijah would be born with a severe birth defect, and thereby depriv[ing] her of the choice to terminate the pregnancy." A federal district court in New Jersey concluded that Feres immunity precluded her claim because her injury "was incident to service."
Elijah was still allowed to sue because New Jersey is one of the four states that recognizes "wrongful life" as a child's independent injury. But the other forty six states forbid such suits (https://www.courtlistener.com/opinion/2437131/nelson-v-krusen/) so that courts won't have to determine "the relative benefits of an impaired life as opposed to no life at all." The result is that both a servicewoman and her child are deprived any legal redress.
If the Supreme Court declines an invitation to abolish Feres, there is still a way to fix this injustice. Congress should set up a fund for compensating children whose disabilities were caused by substandard care at military medical facilities. Establishing such a fund would eradicate the discrimination between tort victims and provide dedicated servicewomen and children like I.O. the resources they need and deserve.
[I]Dov Fox (https://www.sandiego.edu/law/faculty/profiles/bio.php?ID=1025) and Alex Stein (http://www.cardozo.yu.edu/directory/alex-stein) are law professors at the University of San Diego School of Law and Benjamin N. Cardozo School of Law of Yeshiva University, respectively. -- This feed and its contents are the property of The Huffington Post, and use is subject to our terms. (http://start.westnet.ca/newstempch.php?article=terms.html/) It may be used for personal consumption, but may not be distributed on a website.
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It's been a century since the first woman enlisted in a non-nursing role in the United States armed forces, 30 years later that a federal law made women a permanent part of the military, and another 30 since all branches of the military except combat arms have been open to female officers. Today, servicewomen see combat almost as their male counterparts and a greater proportion of women are commissioned officers (http://www.pewsocialtrends.org/files/2011/12/women-in-the-military.pdf). Many start families while serving their country.
Remarkably, these servicewomen lack protection against even the most egregious malpractice during pregnancy. This frustrates their meaningful ability to exercise their reproductive rights and denies them the compensation necessary to care for children with disabilities. An outdated Supreme Court doctrine and congressional loophole leaves servicewomen unable to recover for the negligent prenatal care they receive in a military hospital. However egregious the malpractice and grave the suffering it causes, our law offers no recourse for the wrong done to the woman's procreative interest and to her child's physical and mental wellbeing.
Take the recent case of Captain Heather Ortiz, an active-duty servicemember in the U.S. Air Force who was admitted to a military hospital to deliver her baby by C-section. In preparation for that surgery, hospital staff made a critical mistake by administering Captain Ortiz drugs that reduced her blood pressure to dangerously low levels. As a result, her baby girl, I.O., was deprived of oxygen in utero and born with severe brain damage. I.O. requires around-the-clock supervision and care and likely will for the rest of her life. In a decision announced last month, however, the Tenth Circuit denied redress to Captain Ortiz and I.O. The Court lamented that "the facts here exemplify the overbreadth (and unfairness) of th[e] [Supreme Court] doctrine" that exempts the government from liability for injuries that are related to military service, "but is not ours to overrule."
That "incident to service" exemption comes from a 1950 case, Feres v. United States (https://supreme.justia.com/cases/federal/us/340/135/case.html), in which the Supreme Court held that the government pays no tort compensation for injuries that active servicemembers sustain due to negligence by others in the armed forces. The Court reasoned that a compensation program the Veterans Benefit Act established for injured and fallen soldiers works well enough and that tort claims shouldn't be permitted to stand between the army and its soldiers. But the Veterans program has a hole: it offers nothing for Captain Ortiz because her injured civilian child is not a veteran. Had Heather Ortiz been the civilian wife of a serviceman, Feres immunity wouldn't apply and the government would have to cover the expenses of I.O.'s severe incapacitation Because Captain Ortiz is a servicewoman, however, she and I.O. must go uncompensated.
Back in 1950, when women comprised just a tiny fraction of active servicemembers, the Supreme Court could not foresee this blatant discrimination. But should Captain Ortiz appeal her case to that high court, as her lawyers apparently plan to, there can no longer be any excuse to deprive servicewomen and their newborns of the compensatory relief they desperately need and squarely deserve.
Consider the 2001 case of Yvonne Smith, an active-duty member of the Air Force who was negligently denied fetal tests at a military hospital, "prevent[ing] [her] from discovering that [her son] Elijah would be born with a severe birth defect, and thereby depriv[ing] her of the choice to terminate the pregnancy." A federal district court in New Jersey concluded that Feres immunity precluded her claim because her injury "was incident to service."
Elijah was still allowed to sue because New Jersey is one of the four states that recognizes "wrongful life" as a child's independent injury. But the other forty six states forbid such suits (https://www.courtlistener.com/opinion/2437131/nelson-v-krusen/) so that courts won't have to determine "the relative benefits of an impaired life as opposed to no life at all." The result is that both a servicewoman and her child are deprived any legal redress.
If the Supreme Court declines an invitation to abolish Feres, there is still a way to fix this injustice. Congress should set up a fund for compensating children whose disabilities were caused by substandard care at military medical facilities. Establishing such a fund would eradicate the discrimination between tort victims and provide dedicated servicewomen and children like I.O. the resources they need and deserve.
[I]Dov Fox (https://www.sandiego.edu/law/faculty/profiles/bio.php?ID=1025) and Alex Stein (http://www.cardozo.yu.edu/directory/alex-stein) are law professors at the University of San Diego School of Law and Benjamin N. Cardozo School of Law of Yeshiva University, respectively. -- This feed and its contents are the property of The Huffington Post, and use is subject to our terms. (http://start.westnet.ca/newstempch.php?article=terms.html/) It may be used for personal consumption, but may not be distributed on a website.
http://rc.feedsportal.com/r/233194142178/u/0/f/677045/c/35496/s/47cae72c/sc/7/rc/1/rc.img (http://rc.feedsportal.com/r/233194142178/u/0/f/677045/c/35496/s/47cae72c/sc/7/rc/1/rc.htm)
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