Well put, Judge Hawkins.
"Like most cases implicating the Feres doctrine, the
claims at issue here arise out of personal tragedy. . . . Rebekah Daniel served honorably as a Lieutenant in the
United States Navy, and she worked as a labor and delivery
nurse stationed at the Naval Hospital in Bremerton,
Washington. . . . In 2013, Rebekah and Walter learned that they were
expecting a daughter. Rebekah made arrangements to resign
from her post, and with the family leave she planned to take
following the birth of her daughter, she did not expect to
resume her duties prior to her anticipated detachment from
service in May 2014. On March 9, 2014, while still on active
duty status, Rebekah was admitted to Naval Hospital
Bremerton as a patient and gave birth to her daughter.
Although her pregnancy had been considered low-risk,
Rebekah experienced postpartum hemorrhaging and died
approximately four hours after delivery."
The family sues for medical malpractice, but the district court dismisses the case on the pleadings, holding that it's barred by the Feres doctrine, which prohibits suits arising out of military service. Judge Hawkins quotes Justice Scalia's dissent in Johnson, in which the latter argued that “Feres was wrongly decided and heartily deserves the
widespread, almost universal criticism it has received." But the panel is nonetheless constrained to affirm, holding that existing doctrine does indeed bar the lawsuit.
But Judge Hawkins concludes the opinion by saying: "Lieutenant Daniel served honorably and well, ironically
professionally trained to render the same type of care that led
to her death. If ever there were a case to carve out an
exception to the Feres doctrine, this is it. But only the
Supreme Court has the tools to do so."
Hear, hear.
