Military Family Fights for Consideration of Birth Injury Case

Air Force veteran Jorge Ortiz had his daughter’s future in mind when he filed a tort claim against the government over her complicated birth. The case was unfortunately denied by a lower court and an appellate court due to the Feres Doctrine.

The Feres doctrine is a law that prevents active-duty service members wronged by government employees from filing a claim against the government for their injuries under the Federal Tort Claims Act. This rule is what is preventing the Ortiz family from winning a birth injury suit for their daughter, Isabella, because the mother is active-duty. Ortiz has petitioned the U.S. Supreme Court in hopes of changing the law.

“We’ve reached a point where people can see how unfair this is for children of military families,”
stated Jorge Ortiz in a phone interview from his San Antonio home. “Isabella is the voice of these families.”

Isabella was born March 16, 2009 to Air Force Capt. Heather Ortiz at Evans Army Community Hospital in Fort Carson, Colorado.

While her mother was being prepared for a planned Cesarean section delivery, she was given a medication that was a known allergy stated in her medical records. Heather was then administered an antihistamine to counter the allergic reaction and her blood pressure dropped drastically, depriving Isabella of oxygen while still in the womb.

Isabella, now 6, suffered brain and nerve damage that requires occupational and physical therapy every week. She also must wear leg braces and has special accommodations at school.

Jorge Ortiz filed the suit against the Army hospital anticipating Isabella’s lifetime medical needs. After being denied by the district court, the 10th Circuit Court of Appeals ruled that the “genesis test” for Feres applied in the case, meaning that Isabella’s injuries were directly related to her mother’s and therefore the Feres doctrine was appropriately invoked.

Jorge Ortiz believes the extension of the Feres doctrine to children who have never even worn a uniform is wrong and hopes the Supreme Court will consider the petition.

“It’s a great opportunity to add some clarity and understanding to the Feres doctrine,” says Ortiz. Ortiz is an Air Force veteran and understands the restrictions of the doctrine, but believes “a line should be drawn” when it comes to incidents that occur at military hospitals.

The Feres doctrine stems from a 1950 case, Feres v. United States, in which the Supreme Court ruled that active-duty service members are not covered by the Federal Tort Claims Act and has remained controversial ever since. Complaints have been generated by patient advocacy groups, military service organizations and soldiers who feel that they have no legal recourse when something goes wrong at a military hospital.

The Supreme Court, however, has refused to hear previous petitions against the Feres Doctrine, most recently in 2011 for a Marine’s case whose surgery for a routine appendectomy left him in a vegetative state and lead to his death.

The Ortiz’s family’s petition to the Supreme Court was filed on October 13, 2015 and the federal government had until December 18th to file a response, but was granted a 30-day extension.

Joe Bennett, the attorney who represents the family, said the court could decide in March 2016 on whether to schedule oral arguments in the case.

Ten groups have filed briefs in support of the Ortiz family, urging the Supreme Court to consider the case, which includes the American Legion, the National Organization for Women, several veterans law clinics and law schools.

Ortiz stated, “I hope the Supreme Court can look at this and realize that […] Feres is not just being applied to military members. Isabella’s case may be extreme, but there needs to be clarity.”

The Archuleta Law Firm handles injury, death, and veterans medical malpractice claims under the Federal Tort Claims Act. We handle claims in all 50 States and Worldwide. Our focus is helping Veterans, and the families of Veterans and Military Service Members in their claims involving Veterans (VA) Hospitals, Doctors and Clinics and Military Hospitals, Doctors and Clinics. We handle claims involving the Department of Veterans Affairs, the U.S. Army, the U.S. Navy, and the U.S. Air Force.

Source: Military Times

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