Trial Magazine

Congress enacted the Federal Tort Claims Act (FTCA) as a broad waiver of sovereign­ immunity, providing relief and redress for federal employees’ negligence. But under the Feres doctrine—a judicial exception to the FTCA’s waiver—active-duty military personnel are barred from bringing FTCA claims for injuries arising out of activity incident to service.¹ As a result, the U.S. Department of Justice (DOJ) routinely wins dismissal of ­active-duty ­servicemembers’ medical malpractice claims, but Feres never applies to civilian claims unless those claims derive from an “incident to service” injury to an ­active-duty servicemember.

Even though the FTCA’s plain language grants a remedy, the DOJ has recently pushed to expand the Feres doctrine to bar children of military mothers from bringing birth injury malpractice claims. When the U.S. Supreme Court decided Feres v. United States in 1950, it never contemplated these claims: Far fewer women served in the military, and active-duty women were automatically discharged on becoming pregnant.²

Nor did Congress ever contemplate barring these birth injury claims—the FTCA lists specific exceptions to its expansive waiver of immunity, but it does not exclude birth injury claims of children with military mothers.³ Nonetheless, the latest spin on Feres comes from a problematic Tenth Circuit test, and you need to know what it does and how you can fight it.

Circuit Split on Feres

Circuits are divided on whether Feres bars children of active-duty mothers from bringing birth injury claims based on government negligence during labor or delivery. The Fourth, Eighth, and Eleventh Circuits have all held that Feres does not bar these claims,⁴ and several district courts in other circuits have also permitted them.⁵ The Sixth Circuit is internally split—denying immunity in some in utero cases while not in other birth injury cases.⁶ The Tenth Circuit, the most recent circuit to consider this question, barred a child’s FTCA claim for labor and delivery injuries in Ortiz v. United States.⁷

Courts that permit a child’s birth injury claim traditionally examine the claim through the lens of three Feres special factors: the “distinctively federal” relationship between the government and its military personnel; the existence of the Veterans’ Benefits Act as a substitute for tort liability; and the effects of such lawsuits on military discipline.⁸ As the Eleventh Circuit held in Del Rio v. United States, none of the “three broad rationales” justifying Feres apply to the medical malpractice claims of a newborn baby.⁹

First, unlike servicemembers, children do not have a distinctly federal relationship with the government.¹⁰ Second, children are not eligible for the same statutory benefits as ­servicemembers or veterans.¹¹ And finally, a lawsuit questioning military physicians’ decisions relating to a baby’s delivery does not implicate military discipline, nor does it require the court to second-guess decisions “unique to the accomplishment of a military mission.”¹²

Ortiz and the Genesis Test

In Ortiz, the Tenth Circuit took a different approach. It applied a “genesis” test, which treats the mother and baby as a single entity and asks two questions: whether the mother suffered an injury incident to service and whether the injury to the baby was derivative of the injury to the mother.¹³ In that case, Army doctors gave the laboring mother a drug she was allergic to and then another drug to counteract the allergic reaction. This caused the mother’s blood pressure to plummet and resulted in serious injury to the child.¹⁴

The court ruled that both mother and child were injured by government negligence, but it barred the baby from recovery because the child’s injury had its genesis in an injury to the mother.¹⁵ In doing so, the Tenth Circuit adopted outdated dicta from the Fifth Circuit stating that “the treatment accorded his mother is inherently inseparable from the treatment accorded . . . a fetus in his mother’s body.”¹⁶

The problem is that birth injury scenarios almost always are derivative from negligent treatment of the mother during labor or delivery. The Tenth Circuit’s genesis test creates an exception that swallows the rule, barring the majority of—if not all—birth injury claims of children with military mothers. 

Attempting to back away from this cliff, the court said it could “envision a scenario where treatment was provided solely for the mother’s benefit, but negligence in providing such ­treatment injured the baby alone. In those cases, Feres would not operate as a bar because the injury could not be derivative of the non-existent injury to the mother.”¹⁷ In reality, that scenario rarely, if ever, occurs. 

Injury to the mother could be defined broadly: a temporary elevation or drop in maternal blood pressure, heart rate, temperature, white blood cell count, or contractions; an untreated infection; an undiagnosed condition; or a failure to treat a placental abruption, placental previa, or placenta accreta. Under the Tenth Circuit’s analysis, any change in maternal condition, however slight, could trigger the genesis-based Feres bar. Ortiz even extended Feres to bar the child’s separate claim that providers failed to recognize and respond to a ­nonreassuring fetal heart rate pattern, which the court reasoned had its genesis in physicians giving the mother the wrong drug.¹⁸ Any time an active-duty mother is given or denied health care that causes injury to her child, the birth injury claim will be thrown out.

Focus on Gender

But there is a way to escape the genesis trap in birth injury FTCA claims: the active-duty servicemember’s gender. Gender is key to undermining arguments that a court should adopt the genesis approach instead of the Feres special factor test, because Feres has never barred birth injury claims by children with active-duty fathers. If the baby in Ortiz was delivered at a military hospital with an active-duty father, the FTCA would readily give the relief sought—even in the Tenth Circuit. 

Since the FTCA’s inception, children of active-duty fathers have recovered for birth injury claims, yet the genesis test shuts the courthouse doors for any child of a military mother. This means that the baby’s right to bring a claim turns on the active-duty parent’s gender—even if the medical treatment that resulted in the injury was negligent in precisely the same manner. This raises the same problem as Frontiero v. Richardson, when the Supreme Court invalidated a law that allowed male Air Force personnel to automatically claim their wives as dependents and obtain housing and medical benefits but required female active-duty members to prove that their husbands depended on them for more than half of their financial support before their husbands were eligible for those same benefits.¹⁹

The government may not deny benefits or impose burdens based on gender.²⁰ Treating newborns as eligible to make a tort claim based on their parent’s gender effectively mandates “dissimilar treatment for men and women who are . . . similarly situated.”²¹ The Supreme Court has held that “statutory classifications that distinguish between males and females” are presumptively invalid.²²

To overcome that presumption, the government must show that the ­gender-based classification is “substantially related” to the achievement of “important governmental objectives.”²³ It is a demanding burden, requiring the government to show an “exceedingly persuasive justification” for the classification.²⁴

The Supreme Court recently applied heightened scrutiny to an immigration law that treated children of unwed mothers and fathers differently, noting that “prescribing one rule for mothers, another for fathers . . . is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott.”²⁵ Justice Ruth Bader Ginsburg, writing for the majority, explained that the gender-based distinction between mothers and fathers “infecting” the immigration law violated the Equal Protection Clause.²⁶ The Court would likely extend the same equal protection analysis to a rule that treated children of military mothers and children of military fathers differently in applying Feres.

The genesis test operates as a ­gender-based classification because it will never bar birth injury claims of children with an active-duty father. It is the wrong test for birth injury cases, it has been rejected by the majority of circuits, and it runs counter to the Supreme Court’s instructions. The Court’s previously described special factor test in Feres avoids the gender disparity inherent in the genesis test and provides identical outcomes for a child with an active-duty father and one with an active-duty mother. 

Arguing Gender Discrimination

When faced with a motion to dismiss the birth injury claim of a child with a military mother, you should both preserve the gender discrimination argument against the genesis test and argue that the traditional special factor test means that the child’s claim should be heard. The government cannot offer any justification for excluding the claims of children of active-duty mothers while allowing otherwise identical birth injury claims from children of active-duty fathers—and the government carries the burden of showing “an exceedingly persuasive justification” that this gender-based classification is “substantially related” to the achievement of “important governmental objectives.”²⁷ But if you don’t make the gender discrimination argument, a court may choose the wrong test, and your birth injury claim may be dismissed.

Courts in every circuit have lamented the Feres doctrine’s inequities and inconsistencies, and the issue of gender discrimination is the latest twist in a long history of jurisprudence.28 Given the circuit split, the issue is ripe for Supreme Court consideration. Ortiz was appealed to the Supreme Court, and the petitioners fully briefed the gender discrimination argument in their cert petition. The DOJ then entered settlement negotiations and asked the Supreme Court to stay the case pending court approval of a settlement. So while this issue remains unsettled, don’t hesitate to argue that any application of the genesis test is gender-based discrimination in a birth injury FTCA case.

Laurie Higginbotham is a partner at Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham in Austin. She can be reached at lhigginbotham@nationaltriallaw.com.

Notes

1. Feres v. United States, 340 U.S. 135 (1950). See also 28 U.S.C. §1346 (2012). The term “incident to service” is not limited to military operations or duties but is broadly interpreted to include all injuries suffered by military personnel that are remotely related to the individual’s status as a servicemember. Daniel Morris, Fed. Tort Claims §6:3 (July 2016).
2. See Exec. Order No. 10,240, 16 Fed.Reg. 3689 (May 1, 1951) (giving the services permission to discharge a woman if she became pregnant, gave birth, or became a parent by adoption or marriage).
3. See 28 U.S.C. §2680 (2012).
4. See Romero v. United States, 954 F.2d 223, 225–26 (4th Cir. 1992), Mossow v. United States, 987 F.2d 1365 (8th Cir. 1993), and Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987).
5. See Lewis v. United States, 173 F. Supp. 2d 52 (D.D.C. 2001), vacated in part on other grounds, 290 F. Supp. 2d 1 (D.D.C. 2003); Smith v. Saraf, 148 F. Supp. 2d 504, 521 (D.N.J. 2001); Utley v. United States, 624 F. Supp. 641 (S.D. Ind. 1985); Graham v. United States, 753 F. Supp. 994 (D. Me. 1990).
6. Compare Brown v. United States, 462 F.3d 609 (6th Cir. 2006), with Irvin v. United States, 845 F.2d 126 (6th Cir. 1988).
7. 786 F.3d 817 (10th Cir. 2015).
8. See United States v. Shearer, 473 U.S. 52, 57 (1985); see also United States v. Johnson, 481 U.S. 681, 684 n.2 (1987).
9. Del Rio, 833 F.2d at 287–288.
10. Id. (quoting Lombard v. United States, 690 F.2d 215, 232 (D.C. Cir. 1982) (Ginsburg, J., concurring in part and dissenting in part)).
11. Id.
12. Id.
13. Ortiz, 786 F.3d at 824.
14. Id. at 818–819.
15. Id.
16. Scales v. United States, 685 F.2d 970, 974 (5th Cir. 1982).
17. Ortiz, 786 F.3d at 830.
18. Id. at 832.
19. Frontiero v. Richardson, 411 U.S. 677 (1973).
20. See Reed v. Reed, 404 U.S. 71, 76–77 (1971) (“To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.”).
21. Id. at 77.
22. Craig v. Boren, 429 U.S. 190, 197 (1976).
23. Id.
24. United States v. Virginia, 518 U.S. 515, 531 (1996); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
25. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1690 (U.S. 2017). 
26. Id. at 1700.
27. See Craig, 429 U.S. at 197; see also Miss. Univ. for Women, 458 U.S. at 724; United States v. Virginia, 518 U.S. at 531. 
28. See, e.g., Persons v. United States, 925 F.2d 292, 299 (1991) (“It would be tedious to recite, once again, the countless reasons for feeling discomfort with Feres.”).