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Ninth Circuit: Army Not Liable for Death of Baby Born to Soldier Prematurely

This guest post is courtesy of Robert Reeves, a founding partner of The Reeves Law Group. Robert practices personal injury law in California, and has years of experience representing victims of negligence.

A recent opinion from the United States Court of Appeal for the Ninth Circuit calls into question the validity of a Supreme Court doctrine that is more than 60 years old.

In Ritchie v. United States, the plaintiff alleged that United States Army officers caused the death of his infant son by ordering his pregnant wife, a servicewoman on active duty, to engage in physical training.

The orders came despite her physician’s instructions to restrict her activities. The physician had instructed the woman not to carry or fire weapons, move with “fighting loads,” engage in heavy lifting or physical training, or run/walk long distances.

Nevertheless, the woman’s supervising officers forced her to engage in physical activities. These included picking up trash and “battle-focused” physical training.

Shortly after these taxing physical activities, the woman was forced to undergo an emergency cerclage procedure in an effort to prevent premature birth. The woman’s doctors informed Army personnel that because of her “high risk” condition, she could not perform normal work conditions for the remainder of her pregnancy. But the officers ignored these instructions, and forced the woman to engage in physical training.

Less than three weeks after the cerclage procedure, the woman went into premature labor. Her son died 30 minutes after he was born.

Her husband filed a wrongful death suit against the United States Army after administrative claims related to the loss of the infant were denied. He asserted claims under the Federal Tort Claims Act for loss of consortium and wrongful death.

Though the husband’s claim for wrongful death seems strong on its face, the district court dismissed the action for lack of subject matter jurisdiction.

The district court’s decision was based on precedent from the Supreme Court of the United States. In the 1950 case Feres v. United States, the Supreme Court held that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty that result from the negligence of others in the armed forces.

The case has remained good law notwithstanding heartbreaking cases filed in connection to serious injuries sustained by members of the armed forces due to the negligence of other servicemen and women.

In affirming the district court’s dismissal of the Ritchie case, Judge Jacqueline Nguyen stated:

“We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long. . . . [U]nless and until Congress or the Supreme Court choose to ‘confine the unfairness and irrationality that [Feres] has bred,’ we are bound by controlling precedent.”

Thus, the Ninth Circuit “regretfully” held that the Ritchie case was barred by Feres precedent. It remains to be seen whether the plaintiff will appeal the wrongful death action to the Supreme Court. However, the Ninth Circuit’s language is a clear call for the Court to reevaluate the longstanding doctrine.

The Ritchie case is a tragic example of the oft-quoted principle: “the law and justice are not the same.”

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

About This Blog

The title of this blog reflects my attitude toward those government agencies and insurance companies that routinely mistreat injured or disabled people. As a Dallas, Texas lawyer, I've spent more than 45 years trying to help those poor folk, and I have been frustrated daily by the actions of the people on the other side of their claims. (Sorry if I offended you...)

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