A diverse group of organizations has filed briefs urging the Supreme Court to hear the case of a military child whose medical malpractice suit was dismissed because her injuries stemmed from complications during birth from her active duty mother.
In their amicus, or "friends of the court," briefs, the advocates, including the American Legion, the National Organization for Women, four members of Congress and others, urged the court to hear Ortiz v. the U.S., saying the case, which calls into question the applicability of the Feres Doctrine, is important to military women.
"The Tenth Circuit's decision demonstrates that the Feres doctrine discriminates against women," wrote attorneys with the California Women's Law Center and Veterans Legal Institute in their brief. "Only birth injuries to children of active-duty mothers (not fathers) are Feres-barred. Hence, service women bear the full brunt of the government's malpractice in labor and delivery cases."
The case centers around Isabella Ortiz, now six, who suffered brain and nerve damage at birth in Evans Army Community Hospital at Fort Carson, Colorado.
During her birth, her mother, Heather Ortiz, received a medication to which she is allergic, even though the allergy is noted in her medical records.
When she was given a medication to counteract the allergic reaction, her blood pressure plunged, depriving her unborn baby of oxygen. The staff did not notice fetal monitor readings indicating the baby was in distress.
Attorneys for Jorge and Isabella Ortiz have petitioned the Supreme Court to hear the case, which they consider an overreach of the Feres Doctrine, the exception to the Federal Tort Claims Act that bars active-duty troops from suing the government.
The U.S. government has asked for an extension to file its response, with the deadline now in January rather than the original Dec. 18 deadline.
In their brief, the American Legion and the National Veterans Legal Service Program urged the court to consider the case because Feres frequently is applied unevenly across lower courts.
"Feres was decided in error," wrote attorneys for the American Legion and NVSLP. "Lower courts' erroneous denials of the Federal Tort Claims Act jurisdiction will continue, and worsen, until Feres is overturned."
Other groups that have filed briefs include professors from the Cardozo School of Law and the University of San Diego School of Law, several retired military personnel, Baylor Law School Veterans Assistance Clinic, John Marshall Law School Veterans Legal Support Center, Rep. Joe Courtney, D-Conn., Colorado Democratic Reps. Jared Polis and Ed Perlmutter, Rep. Peter Welch, D-Vermont, the National Institute of Military Justice, and the Service Women's Action Network.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
