Active Duty Air Force Airman Harmed During Gallbladder Surgery Seeks To Strike The Feres Doctrine

Active Duty Air Force Airman Harmed During Gallbladder Surgery Seeks To Strike The Feres Doctrine

WASHINGTON, D.C.  --  Air Force Airman Colton Read and his wife Jessica (petitioners) filed a petition for a writ of certiorari in the U.S. Supreme Court on Oct. 17, 2013 (COLTON J. READ AND JESSICA G. READ, Petitioners, v. UNITED STATES OF AMERICA, Respondents, No. 13-505, U.S. Sup.).

Airman Read, when he was 19 years old and an active military member, underwent gallbladder surgery in preparation for deployment to Afghanistan. During the surgery, Airman Read’s abdominal aorta was lacerated and there was a lack of oxygen supplied to his legs. Due to the actions taken during surgery as well as the post-operative failure to timely treat the loss of blood circulation to his legs, both legs had to be almost fully amputated.  

Petitioners filed a medical malpractice action against the United States under the Federal Tort Claims Act (FTCA), 28 USCS § 1346. The U.S. District Court for the Western District of Texas, in Read v. United States, 2012 U.S. Dist. LEXIS 166897 (W.D. Tex. Nov. 26, 2012), granted the government’s motion to dismiss after noting that the Feres Doctrine, adopted by Feres v. United States, 340 U.S. 135 (U.S. 1950), barred the claims. The Feres Doctrine bars active duty military personnel from bringing claims arising out of their military service. The Fifth Circuit U.S. Court of Appeals affirmed the dismissal of the case in Read v. United States, 2013 U.S. App. LEXIS 14800 (5th Cir. Tex. July 19, 2013) after determining that the U.S. Supreme Court has continued to use the Feres Doctrine to bar claims relating to injuries suffered by active duty military members during the course of their activities incident to their service. The Fifth Circuit specifically noted that the case of United States v. Johnson, 481 U.S. 681 (U.S. 1987) barred the instant medical malpractice claims.

Petitioners allege that the Feres Doctrine lacks any basis in the actual language of the FTCA and that the FTCA bars only suits brought by active military personnel arising out of combat injuries. Petitioners assert that the surgery in question was not incident to Airman Read’s military service, and therefore the Feres Doctrine does not apply. However, petitioners strongly contend that the Feres Doctrine should be stricken because it was wrongly decided, courts have not consistently applied the doctrine, and it has resulted in lowered medical care for military personnel. Petitioners also claim that the Feres Doctrine violates both the Equal Protection Clause and the Separation of Powers doctrine found in USCS Const. Amend. 5 and USCS Const. Amend. 14, § 1. Petitioners seek review of the dismissal of their medical malpractice claims.

The response to the petition for certiorari is due Nov. 21, 2013.

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