Attorneys for a military child who suffered brain damage at birth in Evans Army Community Hospital at Fort Carson, Colorado, filed a petition Tuesday for the U.S. Supreme Court to consider the case.
At issue is a 10th Circuit Court of Appeals ruling that disallowed the case under the Feres doctrine, the exception to the Federal Tort Claims Act that bars active-duty troops from suing the government.
Isabella Ortiz was born on March 16, 2009, to Air Force Capt. Heather Ortiz at the Army hospital. During the birth, Ortiz suffered complications related to medication she received and the baby, known as Bella, was born with brain damage and nerve damage.
Had Heather Ortiz been a civilian married to an active-duty father, she could have filed a lawsuit on behalf of Bella with a high probability of settling the case.
But because Ortiz is active duty, the appellate court judges applied what is known as the "genesis test" for Feres, saying the child's injures were directly related to her mother's injuries, and thus Feres applies.
Attorney Laurie Higginbotham said the 10th Circuit Court's ruling differs from other circuit courts and added that this disparity, along with inconsistent application of Feres simply because Heather Ortiz — and not her husband — is active duty, should draw the Supreme Court's attention.
"This case is important not only to the Ortiz family but all military families, particularly to women in the U.S. military because it shines the light on hidden gender discrimination," Higginbotham said during a news conference in Washington, D.C. on Tuesday.
"There is no 'equal justice under the law' if you are harmed by a military doctor in a military hospital and your mother is serving in the U.S. military, whereas, if you are the child of a military man, you are not denied that right. This is wrong," said Bruce Braley, a former Democratic congressman from Iowa and co-counsel for the Ortiz family.
When Heather Ortiz arrived at Evans for a scheduled cesarean section, her labor was progressing smoothly until she was given Zantac to ward off stomach upset that could cause surgical complications, according to court documents..
Ortiz is allergic to Zantac — a condition noted in her medical records — so she was administered Benadryl to counter an allergic reaction. But the antihistamine caused her blood pressure to plummet, depriving the unborn Bella of oxygen.
The staff did not notice fetal monitor readings indicating that Bella was in distress until it was too late. When the baby was born, she had brain damage, cerebral palsy and other injuries.
The Supreme Court has denied previous petitions regarding Feres, most recently in 2011 in the case of a Marine whose surgery for a routine appendectomy went awry, leaving him in a vegetative state and eventually leading to his death.
Despite the court's decision not to weigh in on Feres, at least one justice's thoughts on the doctrine are known: In 1987, Antonin Scalia decried a ruling in the government's favor in a case brought by the widow of a Coast Guard pilot.
"Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received," Scalia wrote in a dissent of U.S. v. Johnson.
Even the appellate court judges in the Ortiz case lamented their conclusion in favor of the government.
"To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule," wrote Judge Timothy Tymkovich.
The son of retired Air Force Lt. Col. Clarence Lee lost both his kidneys after he went into multiple organ failure as a result of pneumonia that went undiagnosed at a military hospital in Texas. Speaking in support of the Ortiz case, Lee said he was allowed to sue and, after 10 years that included a jury trial and government appeals, was awarded a sum that will pay for his child's lifelong medical care, even after he ages out of Tricare.
Lee said he understands Feres is designed to uphold the chain of command and keep troops from suing the military over injuries related to battlefield missteps. But he added that it is unfair that Bella Ortiz does not have the "same rights as my son."
"A failure to help our children who are wrongfully injured creates problems," Lee said. "If this legal decision is allowed to stand, it will actually hurt unit morale. Why does the government, who asks women to serve our country, ask these same women to forfeit their children's rights?"
The U.S. Supreme Court receives at least 10,000 petitions each year. It grants and hears between 75 and 80 cases.
Higginbotham said the court could decide whether to hear the Ortiz case in December or early next year.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.