Veterans advocacy groups and lawmakers are requesting the Supreme Court hear the case of a retired Air National Guardsman who wants to sue the military after a routine back surgery left him paralyzed from the chest down. (Carlos Bongioanni/Stars and Stripes)
Nearly two dozen veterans advocacy groups and six lawmakers are requesting the Supreme Court hear the case of a retired Air National Guardsman who wants to sue the military after a routine back surgery left him paralyzed from the chest down.
“The Feres Doctrine cannot be allowed to continue enabling and protecting medical malpractice in the military,” Army veteran Lauren Palladini said, referring to a ruling by the Supreme Court that bars service members from suing the military for anything related to their time in service.
Palladini, who is also president of a military medical malpractice advocacy group called Coalition of Heroes, helped organize the filing of one of two briefs submitted to the Supreme Court last month in support of retired Tech. Sgt. Ryan Carter. The briefs are referred to by the court as an amicus curiae brief, or friend-of-the-court brief, and can help sway the justices to accept a case. They are typically filed by people and organizations not directly involved in the case but who have a strong interest in it.
Carter, 49, served in the Maryland Air National Guard and was not on orders in April 2018 when he went to Walter Reed National Military Medical Center in Bethesda, Md., for a back surgery to alleviate chronic neck pain. His spinal cord endured trauma during the surgery, and he has never walked again.
He filed a petition earlier this year for the Supreme Court to hear his case and reconsider the Feres Doctrine, which has been used to prevent military medical malpractice lawsuits since 1950 and has even limited the ability of people to bring military rape cases to civil courts for recourse.
Ryan Carter, a medically retired technical sergeant from the Maryland Air National Guard, was paralyzed during a 2018 surgery at Walter Reed National Military Medical Center. He has petitioned the Supreme Court to hear his lawsuit, which has been denied in lower courts because of a statute that bars service members from suing the military when they are injured in medical malpractice. (Photo provided by Christopher Casciano)
Congress in 2019 passed a law to allow service members to file malpractice claims through their service branch. If the service denies the claim, the service member cannot take their case to the courts. Congress has also made an exception for claims related to contaminated water at Marine Corps Base Camp Lejeune, N.C.
“Congress never intended this injustice, but the time is right to fix the problem,” said Palladini, who nearly lost her life and was severely injured during a routine cesarean section surgery at Womack Army Medical Center at Fort Liberty, N.C.
The brief filed by Coalition of Heroes includes five members of Congress, four military retirees and 19 other veterans groups, including the Reserve Organization of America and the National Military Families Association. Those congressmen are Reps. Kelly Armstrong, R-N.D., Sanford Bishop, D-Ga., Josh Harder, D-Calif., Richard Hudson, R-N.C., and Darrell Issa, R-Calif.
“The Feres Doctrine is legally incorrect, unfair, and a threat to our national security,” said Kristina Baehr, an attorney who wrote the brief on behalf of Coalition of Heroes. “According to the judge-made doctrine, a mom injured by a negligent doctor during her baby’s delivery is not entitled to recovery in court because she is a service member. But if she were a spouse, she could bring a claim. This injustice discourages good men and women from joining the service in the first place.”
A second brief filed includes support again from Issa and Hudson, and Sen. Markwayne Mullin, R-Okla., and the veterans organization Burn Pits 360, which was heavily involved in passing a law to provide more benefits to veterans suffering from toxic exposure.
The second brief was written by attorney Natalie Khawam Case, who represents Master Sgt. Richard Stayskal, an Army Green Beret suffering from terminal lung cancer. It was his case that inspired Congress to act in 2019 to carve medical malpractice claims out of the Feres Doctrine.
However, when Stayskal submitted his own claim, it was denied.
The original Feres decision used the term “incident to service” to identify claims that cannot be filed by service members, and Khawam Case argued this loosely defined term has been abused to deny access to the courts.
“This has frustrated legislators and judges alike, as injured and deceased soldiers and their families sit helpless, unable to fight back against rape, murder, and other crimes for which civilians would immediately be able to sue,” she wrote in the brief to the court.
This would end if Carter’s case were heard by the Supreme Court and ultimately reversed, she wrote.
A third brief was filed in June to support Carter’s case by the National Veteran Legal Services Program and Save Our Servicemembers, two veteran advocacy groups.
The Supreme Court receives more than 7,000 petitions like Carter’s each year and only selects about 100 for review. Four of the nine justices must agree to accept a case, and the justices typically do not release a statement on why a case isn’t selected.
