Does the Feres doctrine bar service members, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act where the medical treatment did not involve any military exigencies, decisions, or considerations, and where the service member was not engaged in military duty or a military mission at the time of the injury or death?

QUESTION PRESENTED In Feres v. United States, 340 U.S. 135 (1950), and its companion medical malpractice cases, Jefferson v. United States, and United States v. Griggs, this Court held that service members were barred from bringing tort claims under the Federal Tort Claims Act where the injury or death arose out of or in the course of activities incident to service. In subsequent cases, this Court abandoned the primary rationale supporting the Feres doctrine. Further, it adopted the military discipline rationale as the most important consideration in in determining whether Feres bars a claim. This Court has never considered whether the Feres doctrine should apply to medical malpractice cases given the intervening development of the law. The questions presented are: 1. Does the Feres doctrine bar service members, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act where the medical treatment did not involve any military exigencies, decisions, or considerations, and where the service member was not engaged in military duty or a military mission at the time of the injury or death? 2. Should Feres be overruled for medical malpractice claims brought under the Federal Tort Claims Act where the medical treatment did not involve any military exigencies, decisions, or considerations, and where the service member was not engaged in military duty or a military mission at the time of the injury or death? “i TABLES OF CONTENTS REASONS FOR GRANTING THE PETITION. 8 1. The Feres Doctrine should be Overturned in Medical Malpractice Cases Because of Fundamental Changes in its Doctrinal Underpinnings since 1950 . eee 8 A. The FTCA and Pre-Feres Case Law Permit Service Members to Recover. Against the Government... 8 B. The Medical Malpractice Cases in Feres were Primarily Based upon a Doctrine of Parallel Private Liability which the Court Subsequently Abandoned