Active-Duty Navy Sailor Files Military Medical Malpractice Lawsuit for Loss of Triplets
On November 15, 2017, an active-duty Navy sailor gave birth to triplets at 23 weeks gestation. Sadly, all died immediately after. According to Military.com, the mother had undergone intrauterine insemination at Portsmouth Naval Medical Center and became pregnant with quintuplets. Two of these babies died in utero, while the remaining three died immediately after birth. The mother alleges that her military doctor was negligent in performing her insemination, resulting in a high-risk pregnancy with multiple fetuses.
The United States argued that the case should be dismissed the mother is barred from suing under the Feres doctrine. Feres is an old Supreme Court decision that held that active duty military cannot sue for medical malpractice. The United States further argued that the babies could not sue for medical negligence that occurred before they were “viable” embryos. U.S. District Judge Anthony Trenga ruled that because the babies’ injuries were not caused by an injury suffered to their mother as part of her military duties, Feres did not apply, and even though the premature babies did not exist at the time of the alleged medical negligence, the treating physician assumed care of the children intended to be conceived. “Even though that child did not exist when that procedure was administered, that procedure qualified as “health care” since it was administered precisely for the purpose of causing the conception and birth of that child, and for that reason … for the child’s benefit,” Trenga wrote.
Why the distinction between active duty and others?
For decades, retired military members, veterans, and military dependents have enjoyed the well-established right to recover for injuries caused by medical malpractice at military facilities through litigation. While active-duty members are still barred from bringing a military medical malpractice lawsuit against the government, they are now able to bring administrative claims for injuries resulting from medical negligence occurring at a military facility.