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Administered compensation and the Feres doctrine

"An effort to overturn a 59-year-old Supreme Court decision barring service members from suing the government for negligence inched forward Tuesday when a House subcommittee approved the Carmelo Rodriguez Military Medical Accountability Act." [Navy Times] The Norfolk Virginian-Pilot is also lending a reportorial hand to the plaintiffs' cause. The legislation would curtail the Feres doctrine, which restrains uniformed personnel from filing negligence lawsuits against the armed services. In effect, the doctrine requires that injured personnel be content to accept whatever benefits package the armed services (and ultimately Congress) choose to provide for death, disability or other losses (earlier here and here).

It seems to me that the controversy over Feres repeal would make a good place to draw a line in the sand for those who favor administered-compensation alternatives to medical liability litigation -- whether that happens to mean the Harvard-style school of no-fault proposals with relatively generous definitions of eligibility, or the Common Good emphasis on health courts with credible expertise on causation, or the various other possibilities modeled on vaccine or infant-brain-damage no-fault programs, workers' comp, New Zealand social insurance, or European practices. If administered compensation without the high overhead and acrimony of litigation can't work in the context of military medicine -- in which the parties already have intense and ongoing legal relations with each other, in which complications arising from multiple sources of health care are at a minimum, and in which the prospective defendant is already providing a comprehensive, lifelong package of benefits to the prospective plaintiff -- then it probably can't be made to work anywhere.

Of course the lobbying push in Congress never seems to take the form of "let's liberalize benefits for service families who find themselves in this situation, but in ways that don't require them to go through lawsuits". It's almost as if expanding litigation is a goal in itself.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.