August 29, 2011
There are few battles with worse odds for a U.S. serviceman than trying to sue the U.S. government for negligence.
Richard Rosen, a professor at Texas Tech University Law School and a retired Army judge advocate general, doesn't buy that reasoning.
"I can understand it if the injury or death occurs in a training accident, or a soldier sues a commander for the way he plans an operation," Rosen said. "You don't want those kinds of lawsuits. But medical malpractice is a unique area and ought to be treated differently. Anyone injured in a garrison hospital should be fairly compensated for the injury."
Congress has tried to pass legislation several times in recent years granting military members or their survivors the right to sue for medical malpractice. The last to author legislation was Rep. Maurice Hinchey, D-N.Y., in 2009. But it has never gotten very far, and most experts consider it a nonstarter with the makeup of the current Congress.
Rather than try to change precedent through legal challenges, Rosen believes the better path is through congressional action.
"This is not a constitutional issue," he said. "The court was trying to infer the intent of the Congress in its ruling on Feres. Congress can easily change this and craft a statue that allows for lawsuits based on cases of gross malpractice."