Military Family Petitions Supreme Court to Sue Over Birth Injury

On March 16, 2009, Air Force veteran Jorge Ortiz and his wife welcomed their new baby daughter after a harrowing delivery at Evans Army Community Hospital in Colorado, where the mother was an active duty Air Force Captain. The childbirth – a planned C-section delivery — turned nightmarish for the parents when hospital personnel gave the mother an antihistamine to counter an allergic reaction shortly before the surgery. The mother’s medical records included all known medication allergies, including the antihistamine provided – pointing to negligent medical care.

Just moments after receiving the antihistamine, the mother’s blood pressure dropped dramatically, causing her baby to suffer oxygen deprivation while still in the womb. The little girl, now six years old, experienced nerve and brain damage during the incident, and must now get physical and occupational therapy.

Ortiz attempted to recover compensation for his daughter’s permanent birth injuries that would likely incur significant medical expenses, and filed a malpractice claim against the Army Hospital and government. However, his lawsuit was dismissed by a district court, which cited the Feres doctrine.

Military family challenges Feres doctrine

The Feres doctrine bars members of the armed forces and/or their immediate families from suing the government based on injuries sustained or arising from “activity incident to military service.” The doctrine is based on a 1950 case, Feres v. United States, in which the U.S. Supreme Court ruled that the federal government could not be held liable under the Federal Tort Claims Act for harm sustained by armed force members during active military service. For more than 50 years, the doctrine has been a source of contention among advocacy groups, troops and military service organizations who argue that victims are left no options for legal recourse in the event of catastrophic injury or death within a government-funded hospital.

Undeterred, Ortiz then took his medical malpractice claim to an appeals court. However, the 10th Circuit Court of Appeals determined that his daughter’s injures were directly linked to her mother’s, thus supporting the Feres doctrine.

Father petitions Supreme Court to intervene

Ortiz petitioned the U.S. Supreme Court on October 18, 2015, in the hopes that the family’s birth injury case could proceed, unhindered by the Feres Doctrine. Ortiz, a long-time military veteran, concedes the importance of such legislation to deter frivolous claims brought against government personnel for injuries that are suffered during the course of war or active duty training.

However, he raises the argument that his daughter shouldn’t have to suffer needlessly just because her mother is an active-duty service member. Every year, the Supreme Court is bombarded with thousands of such petitions, but only hears a small fraction of cases. While his chances are slim for pursuing litigation, Ortiz is an optimist at heart. The government has until January 18th to file a response to the petition.

“I hope the Supreme Court can look at this and realize that … Feres is not just being applied to military members. Isabella’s case may be extreme, but there needs to be clarity,” Ortiz told the Military Times.

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