Paralyzed During Surgery at Walter Reed, Guardsman Asks Supreme Court to Consider Feres Doctrine Challenge

Since April 6, 2018, Air National Guard Staff Sgt. Ryan Carter has been unable to dress himself, eat alone or walk from one room to another. On that day, Carter was admitted to Walter Reed National Military Medical Center in Bethesda, Maryland, for back surgery to address chronic pain; he left 19 days later, a paraplegic and victim, he says, of medical malpractice.

At the time of the surgery, Carter was not on active-duty orders or medical orders -- an inactive status his attorneys argue made him eligible to file a malpractice claim against the government under the Federal Tort Claims Act.

According to court documents, Carter and his wife, Kathleen Cole, did just that.

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But 82 days after Carter's surgery, the military changed his status to active duty and backdated it to March 14, 2018 -- an alteration that disallowed any claims due to the Feres doctrine, the federal ruling that bars active-duty service members from suing the government for injuries.

Carter is challenging that change and the Feres ruling, taking his case to the Supreme Court, the first challenge to Feres before the court in five years, following at least two in the last decade.

In a petition to the court filed June 5, Carter's attorney, Christopher Casciano, said the case "represents yet another chilling example of the breadth and injustice of Feres."

"The Feres doctrine has no justification where an inactive-duty service member is simply a patient, and the acts or omissions at issue are purely medical, not military, decisions," Casciano wrote. "Mr. Carter's injuries occurred, not because of any military exigencies or considerations, but because of the failure of Mr. Carter's health care providers to follow and implement basic standards of care."

The most recent challenge to Feres was brought in 2019 by former Coast Guard officer Walter Daniel over the death of his wife, Rebekah "Moani" Daniel, who died of hemorrhage during childbirth at Naval Hospital Bremerton in Washington state.

The Supreme Court ordered the U.S. solicitor general to file a response to Daniel's petition but ultimately decided not to hear the case.

After the denial of the petition, Justice Ruth Bader Ginsburg said she supported granting the petition while Justice Clarence Thomas penned a strongly worded dissent to the denial.

"Such unfortunate repercussions -- denial of relief to military personnel and distortions of other areas of law to compensate -- will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres," Thomas wrote.

The Supreme Court last accepted a challenge to Feres in 1987, deciding in a 5-4 decision to uphold the ruling in U.S. v. Johnson, a case brought against the Coast Guard by the widow of a helicopter pilot who died in a crash during a rescue mission.

The majority ruled that the death was directly related to military service. But at the time, writing in dissent, Justice Antonin Scalia said "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received."

Citing Thomas and Scalia in Carter's writ of certiorari, Casciano argued that the "tides have changed" and the court should accept the case to "inspect ... Feres under a microscope."

"Under Feres, military service members and their families receive arbitrarily disparate treatment under the law, as compared to both civilians and their ex-military, veteran counterparts," Casciano wrote.

The odds that the court will accept the case are slim: The Supreme Court receives 7,000 to 8,000 petitions a year and accepts about 80 cases. Still, the makeup of the court has changed since Daniel's petition was denied, with Justices Amy Coney Barrett and Ketanji Brown Jackson serving following the death of Ginsburg and retirement of Justice Stephen Breyer.

Congress has instituted at least two exceptions to the prohibition on service members filing claims or lawsuits for malpractice: The 2020 National Defense Authorization Act allowed troops to file compensation claims with the Defense Department for malpractice at U.S. military medical treatment facilities, and service members assigned to Camp Lejeune, North Carolina, can file tort claims, followed by civil lawsuits against the government for injury or illness caused by exposure to contaminated drinking water from the 1950s through 1987.

Carter's petition to the Supreme Court was first reported by Stars and Stripes.

A decision on the petition isn't expected until later this year. In court documents, Casciano implored the justices to consider hearing the case.

"Failure to act will only serve to renew and validate the federal government's unbridled license for tortious conduct and otherwise mandate second-class citizenship to some of our country's most honored and revered citizens," Casciano wrote.

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