The Supreme Court of the United States has deferred action on a petition to hear a case involving a child who was brain injured at birth during labor and delivery at Evans Army Community Hospital in Colorado. Critics of the Feres Doctrine hoped that the Supreme Court would use this opportunity to clarify and make fair the controversial doctrine. The Feres Doctrine was articulated in Feres v. United States, 340 U.S. 135 (1950). Justice Robert Jackson, writing for the court, wrote the opinion which held that the United States is not liable under the Federal Tort Claims Act for injuries that active members of the military experience due to the negligence of other active members of the military.
Isabella Ortiz was born in 2009. Her mother was a Captain in the United States Air Force. During the planned caesarian section delivery Capt. Ortiz was given a medication to which she had a known allergy. As a result, her mother’s blood pressure dropped which caused Isabella to suffer hypoxic ischemic encephalopathy. The lack of oxygen to her brain caused her to sustain brain damage. As a result, she cannot walk on her own and needs assistance at school.
Her claim was originally filed in Federal Court in Colorado where it was dismissed because the court found that Isabella’s injuries flowed from conduct that was “incident” to military service. The 10th Circuit Court of Appeals also denied the claim, applying the genesis test to the Feres Doctrine and ruling that Isabella’s injuries were directly related to her mother’s injuries making Feres directly applicable.
There is a split among the federal circuits on whether or not the Feres Doctrine applies to preclude birth injury claims. Some circuits have allowed birth injury cases to proceed forward. Others, like the 10th Circuit have expanded Feres to include birth injured children.