Army Spc. January Ritchie was pregnant and serving at Fort Shafter, Hawaii, in 2006 when doctors advised her to limit physical activity or risk losing her baby.
The specialist had a miscarriage scare earlier in the pregnancy that resulted in surgery to prevent the loss of her unborn son.
Her doctor advised her to modify her work schedule, emphasizing rest and light duty. But according to court documents, Ritchie's chain of command directed her to perform her regular Army duties, which included standing for long hours, physical training and picking up trash.
During a particularly strenuous day of bending and lifting, Ritchie went into labor. Her son Gregory was born at 23 weeks and died less than 30 minutes later in her arms.
Jonathan Ritchie, Gregory's father and January's husband, sued the military, alleging that January's command ignored medical orders and forced his wife to perform physical activities that led to the baby's death.
But the federal court ruled in favor of the Army, citing the Feres doctrine, a 1950 Supreme Court decision that bars active-duty troops from claiming damages for actions related to military service.
The baby's death, the court ruled, was directly related to the mother's active-duty military service and therefore, Feres applies.
Ritchie appealed, but the 9th Circuit Court of Appeals upheld the decision. Ritchie then asked the Supreme Court to consider the case, but the petition was denied.
"In our view, this was an open and shut case of negligence against the Army," said Ritchie's attorney, Eric Seitz. "I frankly was surprised that the Supreme Court didn't take the case. It presented an excellent issue in terms of injuries to people who ought to be protected but are not."
This fall, the Supreme Court will receive another petition on a case involving injuries to a baby related to circumstances of the baby's active-duty mother.
In the case, mother and Air Force Capt. Heather Ortiz was given a medication during labor and delivery at Evans Army Community Hospital, Fort Carson, Colorado, to which she is allergic. Her medical records clearly state she should not be given the medicine.
The subsequent allergic reaction and treatment caused a precipitous drop in Ortiz's blood pressure and because the hospital staff was not monitoring the baby's condition properly, the infant suffered brain damage and severe disabilities, according to court documents.
As with the Ritchie case, the Ortiz suit initially was dismissed by a federal district court, citing Feres. And on May 15, the 10th Circuit Court of Appeals weighed in, ruling in favor of the federal government, albeit reluctantly.
"To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule," Judge Timothy Tymkovich wrote.
Had Ortiz's husband been an active-duty member and Heather the military spouse, the outcome would have been different because civilians and retirees can sue the government for malpractice in military hospitals and clinics.
But in both cases, 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 the Ortizes plan to appeal.
They will file a petition with the Supreme Court either in August or October, said their attorney, Austin, Texas-based Laurie Higginbotham.
"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 Supreme Court has received at least three petitions in the past decade to rethink Feres, mainly medical malpractice cases. Bills also have been introduced in Congress in the same period to clarify the law that set the Feres precedent back in 1950, the Federal Tort Claims Act.
Families, even those with active-duty members, can sue the government for negligence under the Federal Tort Claims Act. Troops themselves, however, cannot sue the government for personal injuries caused by the negligence of military members, including those providing medical care.
That's because the Supreme Court concluded in the 1950 Feres ruling that the government is not liable for injuries stemming from activity "incident to service."
But the doctrine has been used time and again to dismiss egregious errors by military physicians and contractors, ranging from an airman who died when an Air Force nurse improperly intubated him using a medical device designed for a child, to another airman whose aorta was punctured during routine surgery, causing the loss of both legs, to a Marine who died from melanoma after doctors failed to refer him for treatment and later misdiagnosed the identified cancer as as a birthmark.
Still, Feres remains the law of the land, even though circuit courts appear to be divided over the ruling.
The 9th Circuit Court in 1996 allowed the widow of a solider who died at Fort Lewis, Washington, to proceed with a wrongful death lawsuit. The soldier died while off-duty at a recreation area.
That decision followed earlier precedent by the same court that allowed the mother of a soldier killed by another service member to sue the government for wrongful death in 1985.
The 11th Circuit Court also has transmitted its approval for some military death and injury lawsuits to proceed.
In 1987, even Supreme Court Justice Antonin Scalia weighed in after the court upheld an appellate decision in a wrongful death 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 United States v. Johnson.
Higginbotham said she hopes the divide in the appellate courts, along with the obvious discrimination in the Ortiz case against female service members, will convince the Supreme Court to consider her petition.
Austin-based attorney Jamal Alsaffar said court precedent helped his client, the husband of an Air Force medical technologist, win a case for his son who suffered brain damage as a result of his active-duty mother receiving medication that caused fetal distress during labor and delivery in Fort Walton Beach, Florida.
Eerily similar to the Ortiz case, the government sought a motion to dismiss based on Feres but eventually settled, awarding the family $6.5 million to provide care and services for the child, who is severely mentally and physically disabled.
"Because of geographical coincidence of where the military committed their malpractice, one mom [Ortiz] is being absolutely left out to dry and another mom [Timmons] was able to have her day in court and get a good result. … Using the Feres doctrine against babies of military moms is about the worst thing. … 'Injustice' doesn't cover it. It's cruel," Alsaffar said.
About 50,000 babies are born each year in military facilities in the U.S. and overseas. 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.
In 2011, nearly five in every 1,000 babies born at military hospitals suffered some kind of birth trauma, according to a review of records last year by the New York Times.
Military advocacy groups say that for the most part, military doctors are well-trained, highly educated and dedicated to caring for patients at maximum proficiency.
Retired Navy Capt. Kathy Beasley, a former Nurse Corps officer who now works in government relations for the Military Officers Association of America, said military medical personnel are "leaders in the industry" who enter the service to "serve doubly," helping patients while serving their country.
But, she added, if a clear trend is emerging that affects service women and their children, MOAA would support a re-examination of Feres.
"We certainly would be very interested in looking at it and how it is applied," Beasley said.
Mary Ross, a retired Army sergeant first class who serves as national commander for Women's Veterans of America, believes Feres certainly should not apply in cases involving babies.
"It should not matter if the mother is active duty or not. I believe that the Feres doctrine is just another way for the government to not be held accountable for the actions of the people who have been hired by the federal government," Ross said.
The Supreme Court will decide whether to hear or deny the petition by the end of the year.
Alsaffar, who is married to Higginbotham, said he hopes the court will consider the Ortiz case to clarify the law and provide recourse for military members and those who never served.
"The truth is, the government always says the family can use the active-duty mother's insurance to pay for the needs of these children. But Tricare is woefully inadequate for these disabled children and will not cover most of the child's medical needs throughout their lives including the 25-30 years they'll live after their parents pass," Alsaffar said.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.
