Ryan Carter, a medically retired technical sergeant from the Maryland Air National Guard, and his wife Kathleen Cole in a photo before a 2018 surgery at Walter Reed National Military Medical Center left Carter paralyzed. The Supreme Court on Monday denied Carter’s request for the justices to review a ban on service members suing the military for medical malpractice. (Photo provided by Christopher Casciano)
The Supreme Court on Monday denied a request for the justices to review a ban on service members suing the military for medical malpractice that was submitted by a veteran who was paralyzed during a surgery at Walter Reed National Military Medical Center.
Justice Clarence Thomas was the only member of the court to issue a dissent on the denial, and said he hoped one day that the court would overrule the lawsuit ban on service members known commonly as the Feres Doctrine.
“As I have said before, we should fix the mess that we have made,” Thomas wrote.
He also described the law in his 14-page opinion as “indefensible,” “senseless,” and “not a rational way of protecting military discipline and decision making.”
Thomas advised lower courts, “Do not look for a principled explanation for our Feres case law; there is nothing to find.”
Retired Tech. Sgt. Ryan Carter, 49, asked the Supreme Court last year to rule on whether his lawsuit against the military hospital in Bethesda, Md., can proceed.
While serving in the Maryland Air National Guard, Carter went to the hospital in April 2018 for a back surgery to alleviate chronic neck pain. His spinal cord endured trauma during the surgery and he has never walked again. He was not on active duty at the time of the surgery.
Had Carter been a veteran rather than an inactive reservist, he could have filed a lawsuit for the same injuries arising from the same treatment by the same military staff at the same hospital, Thomas wrote.
Carter attempted to file a lawsuit against the military for the botched surgery but it has been thrown out over the Feres Doctrine, which has been used to prevent military medical malpractice lawsuits since 1950. Aside from medical claims, it also has limited the ability of people to bring military rape cases to civil courts.
Congress created a method to take legal action against the federal government for negligence to its employees through the Federal Tort Claims Act, first established in 1946. However, the law leaves out “claims arising out of the combatant activities of the military … during time of war.”
Over time, this has been interpreted as anything connected to a service member’s time in uniform cannot be the basis of a lawsuit.
“The court has never articulated a coherent justification for this exception, and the lower courts for decades have struggled to apply it,” Thomas wrote. “The result is that courts arbitrarily deprive injured service members and their families of a remedy that Congress provided them.”
The Supreme Court receives more than 7,000 petitions such as Carter’s each year and only selects about 100 for review. Four of the nine justices must agree to accept a case and there is typically not a dissent written about each denial.
Christopher Casciano, Carter’s attorney, said he was disappointed with the decision, as was Carter, who was not immediately available for comment Monday. While they all knew it was a longshot to get the case before the court, their main goal was to push the issue as far forward as possible, the attorney said.
The case received support briefs filed by lawmakers and more than a dozen veterans organizations, Casciano said.
“There’s a lot of momentum that we saw over the last six months. I think that that, in and of itself, is pretty telling about the gravity of what’s going on. There’s a lot of people who have an interest here who want to see something change,” he said. “It showed just how significant and important this issue is, and it’s not just some niche thing that no one really cares about.”
Casciano said he will now turn his attention to an administrative claim that he has filed on Carter’s behalf with the Defense Department.
Congress in 2019 passed a law to allow service members to file administrative malpractice claims through their service branch. If the service denies the claim, the service member cannot take their case to the courts, though Congress carved out an exception for claims related to contaminated water at Marine Corps Base Camp Lejeune, N.C.
