Air Force Capt. Heather Ortiz arrived at Evans Army Community Hospital in Fort Carson, Colorado, on March 16, 2009, to welcome her baby girl to the world via a scheduled cesarean section.
Things progressed smoothly until Ortiz was given Zantac, a common heartburn medication, to ward off gastrointestinal issues that could lead to surgical complications.
But Ortiz is allergic to Zantac, and her medical records say as much. So she was given Benadryl as a counter. But that medication caused a precipitous drop in her blood pressure — which would not affect Ortiz long-term but carried catastrophic consequences for the baby.
The hypotension, combined with an erratic heartbeat and the attending staff's inattention to monitoring the baby's vital signs, deprived the child of oxygen for an extended period, leading to brain damage and severe disabilities, including cerebral palsy, court documents say.
The baby, identified as I.O. in documents, requires around-the-clock medical care and supervision, likely for the rest of her life.
Jorge Ortiz, Heather's husband and the baby's father, sued the government on behalf of the child, seeking financial support to help pay for that lifetime of care.
The case initially was dismissed by a district court, which cited the Feres doctrine, a law that prevents active-duty service members from suing the government for injuries incurred in the line of duty.
Jorge Ortiz appealed. But on May 15, the 10th Circuit Court of Appeals weighed in, ruling in favor of the federal government.
Because the baby's injuries were related to an injury caused to an active-duty captain, the government cannot be held accountable, the circuit court judges wrote — with some reluctance — in their decision.
"Under [Feres], federal courts lose their subject matter jurisdiction over claims like this because we conclude the injured child's in utero injuries are unmistakably derivative of an injury to her mother," Judge Timothy Tymkovich wrote. "To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule."
If Jorge Ortiz was the active-duty member and his wife a military dependent delivering their baby in a military hospital, the Ortizes very likely would have won the case or received a settlement, said their attorney, Laurie Higginbotham.
But the mother's active-duty status and the judges' decision to apply what is known as the "genesis test" for Feres, which asks whether a civilian injury is related to an injury to a service member, led to a ruling that Higginbotham plans to appeal to the U.S. Supreme Court as the latest challenge to Feres.
According to court documents, the judges decided that although Ortiz suffered no long-term consequences of the drop in blood pressure she experienced, it was an event — an injury — that caused her daughter's permanent disabilities.
"At bottom, the source of (Infant Ortiz's) ultimate injury was her servicewoman mother's blood pressure problems," the judges wrote.
Higginbotham called the decision a "tremendous injustice," citing cases in which other appeals courts ruled in favor of the military child injured during childbirth.
"We don't think 'genesis' applies. We don't believe the mom was 'injured.' There was a temporary drop in blood pressure and a drop in heart rate. The baby was showing signs of fetal distress and the providers did not respond," Higginbotham said.
The family did not respond to a request for an interview. Heather Ortiz is a nurse assigned to the 711th Human Performance Wing at Wright-Patterson Air Force Base, Ohio.
A Pentagon review of the military health system released last year showed that from 2010 to 2013, the average rate of injuries to babies during delivery in military hospitals was twice the national average.
Nearly 49,000 babies were born in military facilities in the U.S. and overseas in 2013.
Retired Navy Capt. Kathy Beasley, a former Nurse Corps officer who now works in government relations for the Military Officers Association of America, said the complex Ortiz case revives a debate over the extent of the Feres doctrine and its applicability.
"This pathetic situation brings attention back to the Feres doctrine itself. I think, based on what I read in the case, that a re-examination of Feres could be in order." Beasley said.
The Ortiz's baby girl recently celebrated her sixth birthday. Higginbotham said she lives at home but will never recover from the extensive brain injury she received during childbirth.
"I've represented a lot of military families in cases of brain injury and it's is a tremendous burden," she said. "Tricare pays for a lot but it doesn't cover everything. This family is basically looking to meet their minimal financial needs, looking for a way to survive."
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
