Can I sue the military if a military OB/GYN injures my baby?

Traditionally, it has been very difficult to sue the military for injuries suffered while on active duty, even if those injuries were caused by negligence of military doctors.  In 1946, Congress enacted the Federal Tort Claims Act (FTCA) which makes it almost impossible to sue the military.  In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that government immunity extends to civilians such as family members, if the harm caused to the civilian is connected to the service of a military person.  The Court called this the “genesis test.”   Many courts have held that injuries caused by military OB/GYN doctors to a newborn are related to the health care of the active duty mother and therefore claims against the military OB/GYN must fail.  Recently, however, the courts have taken a second look at this test as it relates to injury caused by a military OB/GYN to a newborn baby.

The most recent – and, by my lights, most impressive – attempt in that direction was made by the Tenth Circuit in Ortiz v. United States, ex rel. Evans Army Community Hosp., — F.3d —- (10th Cir. 2015), 2015 WL 2330230. This case involved Captain Heather Ortiz, an active-duty service member in the United States Air Force, who was admitted to a military hospital to deliver her baby by a Caesarean section. After being administered Zantac and Benadryl in preparation for the surgery, Captain Ortiz experienced a steep drop in her blood pressure and developed hypotension. As a result, her baby was deprived of oxygen in utero and was born with severe brain damage. The hospital’s staff and the military OB/GYN were clearly responsible for the complications in Captain Ortiz’s preoperative procedure.

The Circuit’s decision, written by Judge Timothy M. Tymkovich, offers a thorough and precise analysis of the Feres doctrine and its implications for in-utero cases. According to Judge Tymkovich, in-utero cases can easily be decided by applying the injury-focused “genesis” test set up in Stencel Aero. Under this test, when the mother suffers no injuries (as in cases of undiagnosed birth defects) or when her and her baby’s injuries are separate and not coextensive, the government will receive no immunity and the baby’s suit will be allowed to proceed under FTCA against the military OB/GYN. On the other hand, when the baby’s injury (oxygen deprivation and the resulting brain damage) is coextensive with the mother’s injury (hypotension and the consequent lack of oxygen in her uterus), the Feres immunity takes hold and bars the baby’s suit.

As you can see, the question of whether or not you can sue a military OB/GYN if the military OB/GYN injures a baby is complicated.  The O’Keefe Firm has the experience you need to help with your military malpractice claim.  Contact us today at (937) 643-0600 for a free consultation.

 

 

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