In the past few months, this country has been rocked by the unfolding horror story at dozens of veterans hospitals. There have been reports of veteran deaths due to malpractice, serious mismanagement at all levels of Veterans Affairs and the resignation, in disgrace, of the VA secretary. In the court of public opinion, the VA has lost considerable credibility.
Yet in a civil court, active duty military service members cannot sue for harms they suffered resulting from VA medical center malpractice or other government negligence. Why not? Because the government can do no wrong. This is the central reasoning behind the sovereign immunity doctrine, an arcane rule that largely prohibits active duty military from suing the United States government.
The doctrine dates to 13th- and 14th-century England when the courts decided that the king of England, legally, could do no wrong and is therefore immune from lawsuits filed in his country's courts. The king's immunity naturally extended to the king's government. Of course, the king could consent to being sued and waive his immunity, but this did not happen often. When the British colonized the Americas, sovereign immunity became law in each colony.
The American Revolution ended the king's rule in the United States, but the Supreme Court continued to apply sovereign immunity — giving the U. S. government the same immunity as the British king. Congress could still grant consent for the United States to be sued by individual plaintiffs, but the process was inordinately lengthy and didn't occur often. It took more than 150 years and a military bomber to crash into the Empire State Building in 1945 — 14 people died and many more were injured in that incident — for our country to alter sovereign immunity.
When the crash victims and their families sued the United States, their lawsuits were dismissed because of sovereign immunity. This tragedy prompted Congress to pass the Federal Tort Claims Act (FTCA), which said that the United States should be as liable as any private individual, thus waiving sovereign immunity in the vast majority of cases.
But soon after the FTCA's passage, the Supreme Court, in Feres v. United States (1950), held that the FTCA did not apply to active duty service members where the harm was "incident to service."
Unfortunately for our service members, "incident to service" has been broadly defined to include anything that arises out of the service member's "military relationship." For example, soldiers poisoned by Agent Orange in Vietnam cannot sue for their cancer and associated medical expenses. A soldier who experiences discrimination by superior officers cannot sue in federal court to remedy his discrimination. And military victims of sexual assault, the recent focus of congressional committee hearings and media reports, also can't sue. In the military, sexual trauma is deemed "incident to service," leaving military victims no remedy.
Because military retirees fall outside the Feres doctrine's scope, they may sue the U.S. government for medical malpractice. But while the VA is most associated with military retirees, it also provides care to 1.4 million active duty service members who cannot sue regardless of how poor the care quality is.
The evidence of just how poor that quality is has been mounting. In one audit, at least 120,000 veterans were placed on waiting lists that extended for months. To cover up these lengthy wait times, the VA employed a scheme of never scheduling some patients or using secret lists that were not documented in official records. In one VA facility alone, 35 to 40 veterans died while waiting for medical appointments. In the past, the VA has botched routine procedures such as births and sterilizations. Worse yet, because these investigations are ongoing, we do not yet know the true extent of the harm that has resulted from the VA's negligence.
It is time to abolish the sovereign immunity and Feres doctrines; our men and women in uniform deserve better. The VA travesty clearly shows that government can do considerable wrong, and it should not be allowed to hide behind a doctrine that prevents culpability.
Because sovereign immunity is a common (judge-made) law doctrine and the Feres decision an interpretation of a federal statute, Congress has the power to abolish both doctrines. Moreover, in Feres, the Supreme Court acknowledged its confusion about the Federal Tort Claims Act's language and stated that Congress was welcome to abolish the Feres decision.
It's well past time for Congress to accept the Supreme Court's offer.