When Doctrine Meets Families
The phrase “incident to service” sounds abstract until you see how it plays out in real lives. Feres has shut the courthouse doors on families who lost loved ones to negligence, children harmed before birth, survivors of sexual violence, and even servicemembers injured by civilians working for the government. These cases reveal how far the doctrine reaches – and how arbitrary the line between justice and denial can be.
A Child Denied Before Birth: ORTIZ V. UNITED STATES
In Ortiz v. United States (2015), an Air Force officer received negligent prenatal care at a base hospital. Her child was born with catastrophic injuries. Civilian families could have pursued a malpractice claim on the child’s behalf, but because the care was tied to the mother’s military status, the court applied what it called the “genesis test”: if the injury originates in treatment of a servicemember, the claim is barred. The result was stark – a child who had never worn a uniform was denied a remedy because the mother did.
Death in Childbirth: The Rebekah Daniel Case
Lieutenant Rebakah Daniel, a Navy nurse, died in 2014 from uncontrolled bleeding after giving birth at a Naval hospital in Washington State. Her husband, Walter Daniel, filed a suit for malpractice, arguing her death was preventable. Both the district court and the Ninth Circuit dismissed the case under Feres. Her medical treatment at a military facility was considered “incident to service.” The Ninth Circuit noted only the Supreme Court could change the doctrine, and the family’s 2019 petition for review was denied.
Sexual Assault Treated as Service
For decades, courts extended Feres to sexual assault cases, ruling that violence by one servicemember against another could still be “incident to service.” Survivors often found themselves barred from civil remedies, forced instead into a military justice system that has long struggled with under-prosecution and retaliation. That pattern finally cracked in Spletstoser v. Hyten (2022), when Colonel Kathryn Spletstoser sued retired Air Force General John Hyten for alleged sexual assault during work-related travel. The Ninth Circuit ruled Feres did not bar her claims, stating it “cannot fathom how the alleged sexual assault in this case could ever be considered an activity ‘incident to [military] service’.” While narrow, the decision shows how deeply controversial the doctrine has become when it shields the military from accountability, even for acts far removed from discipline or command.
Negligence by Civilians: UNITED STATES V. JOHNSON
The doctrine has also reached beyond the military chain of command. In United States v. Johnson (1987), a Coast Guard pilot died during a rescue mission, allegedly because of negligence by civilian air traffic controllers while under positive radar control. His widow sued under the FTCA, pointing out that the actors at fault were not even in uniform. The Supreme Court still barred the claim, holding that because the death occurred “incident to service,” the doctrine applied.
A Soldier Paralyzed by Surgery
More recently, the case of Ryan Carter brought the doctrine back into the spotlight. Carter, a dual-status technician in the Air National Guard, underwent spinal surgery at Walter Reed in 2018. Surgical mistakes left him paralyzed. He was not even on active status at the time of the incident. Had he been a civilian patient, his malpractice suit could have gone forward; however, because he was in uniform, his claim was barred. His appeal to the Supreme Court was denied in February 2025, though Justice Clarence Thomas dissented, calling Feres “indefensible as a matter of law, and senseless as a matter of policy.”
Real Lives, Closed Courts
Each of these stories shows the same theme: tragedies that would yield damages for civilians but leave servicemembers and their families with nothing. A child disabled before she took her first breath, a young mother lost in childbirth, many survivors of sexual violence, a servicemember killed by civilian negligence, a soldier paralyzed by surgery – all foreclosed by a doctrine that was invented rather than enacted. Critics argue Feres has turned uniformed service into a liability shield for the government, punishing those who volunteered to serve by denying them remedies available to everyone else.
Looking Toward Reform
These cases illustrate why pressure for change has mounted. The 2020 carve-out for malpractice claims showed Congress can act, but the stories of Ortiz, Spletstoser, Johnson, and Carter demonstrate the inequities of Feres remain. The final part of this series will discuss reform: the attempts to narrow or overturn the doctrine, the Supreme Court’s repeated invitations to revisit it, and how reading the FTCA might demand a very different result.
Part 1 of this series can be found here.
