Jorge Ortiz had his daughter's future in mind when he filed a medical malpractice suit against the government over her botched birth.
But when the case was dismissed by a lower court citing the Feres doctrine, and upheld in an appellate court, Ortiz petitioned the U.S. Supreme Court, hoping to change a rule that prevents his child from winning a birth injury suit solely because her mother is an active-duty service member.
"We've reached a point where people can see how unfair this is for children of military families," Jorge Ortiz said in a phone interview from his San Antonio home. "Isabella is the voice of these families."
Isabella was born March 16, 2009, to Air Force Capt. Heather Ortiz at Evans Army Community Hospital, Fort Carson, Colorado.
As her mother was prepped for a planned Cesarean section delivery, she was given a medication to which she had a known allergy— one that was noted in her medical records. When she was administered an antihistamine to counter the ensuing allergic reaction, her blood pressure plummeted, depriving Isabella of oxygen in the womb.
Isabella, now 6, suffered brain and nerve damage that requires her to get occupational and physical therapy each week. She wears leg braces and has special accommodations at school.
Anticipating Isabella's lifetime medical needs, Jorge Ortiz filed suit against the Army hospital.
But the district court dismissed the case, citing the Feres doctrine, which bars claims against the federal government by members of the armed forces and their families for injuries that stem from activity "incident to military service."
On appeal, the 10th Circuit Court of Appeals ruled that the "genesis test" for Feres applied in this case, meaning Isabella's injures were directly related to her mother's injuries and thus Feres was appropriately invoked.
But Jorge Ortiz believes this extension of the Feres doctrine to children who have never worn a uniform is wrong.
He remains hopeful that the Supreme Court will consider Isabella's petition, given that his daughter's case also reflects what he says is discrimination against military women.
"It's a great opportunity to add some clarity and understanding to the Feres doctrine," Ortiz said.
The Feres doctrine stems from a 1950 case, Feres v. United States, in which the Supreme Court ruled that active-duty military personnel are not covered by the Federal Tort Claims Act, which allows persons wronged by government employees to sue the government over their injuries.
It has remained a controversial provision ever since, generating complaints from patient advocacy groups, military service organizations and troops who feel they have no legal recourse when something goes awry at a military hospital or clinic.
The Supreme Court, however, has refused to hear previous petitions against 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.
Jorge Ortiz, an Air Force veteran, said that when he entered the service, he was aware of the doctrine and understands that restrictions are needed to ensure military leaders and personnel are not sued for decisions made in the line of duty or for injuries sustained during training or war.
But he does not believe Feres should apply to egregious medical errors made in military hospitals. "I think a line should be drawn," he said.
The family's petition to the Supreme Court was filed on Oct. 13. The federal government had until Dec. 18 to file a response but requested, and was granted, a 30-day extension.
Joe Bennett, a Colorado Springs, Colorado, attorney who represents the family, said the court could decide in March whether to schedule oral arguments in the case.
Ten groups have filed briefs supporting the Ortizes and urging the Supreme Court to consider the case, including the American Legion, the National Organization for Women, several veterans law clinics and law schools.
The Supreme Court receives at least 10,000 petitions each year and hears between 75 and 80 cases. Ortiz said he knows the odds are slim that the justices will accept his daughter's case, but remains optimistic.
"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," he said.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
