Brown v. United States462 F.3d 609 (6th Cir. 2005)
* The beginning of the end of a type of systematic gender discrimination
of pregnant military personnel*How real gender discrimination can
occur as an unintended consequence of badly construed law
[redacted]
Sovereign ImmunityYou cannot sue the king
(or the government)
Until: Plane crashes at full speed into the tallest building in
Manhattan with many killed and injured
September 11, 2001?
July 28, 1945
Plane was a US Military B-25 Bomber piloted by a Lt. Colonel
who, in thick fog, was told he couldn’t land at LaGuardia airport due to no visibility
He started an approach anyway and crashed.
Federal Tort Claims Act (1946)Waiver of Sovereign Immunity
Allows the government to be sued for damages caused by the
negligence of U.S. government employees
Supreme Court makes an Exception
No liability for injury or death of service member that arises “incident
to service”Feres Doctrine
Feres v. United States340 U.S. 135 (1950)
“Incident to Service” means anything that a military person does
that is even remotely related to their involvement in the military.
Specifically, includes care at military medical institutions.
Feres cites three rationales why military personnel can’t sue the
government:1. military relationship is distinctly
federal2. no fault system of military
benefits3. maintain military discipline
Supreme Court Expands Exception No liability to third parties whose
injuries derive from injuries to service members (1977)
Examples:Cut off wrong leg of military member- family cannot sue
Radiation induced birth defects
Exception Expanded Again:Treatment accorded a military
mother is inherently inseparable from the treatment of the fetus in
the mother’s body (1982)
Result: Children born of active duty military mothers are barred by Feres and have no recourse for negligent
prenatal care
BUT Children born of active duty military fathers (via civilian
mother) are NOT barred by Feres and have full recourse for negligent prenatal care
RESULTDecades of Gender
discrimination as a result of an unintended consequence of
badly construed lawIn race to limit governmental
liability a system of gender discrimination was set in place
Spina Bifida: a failure of the neural tube to close during fetal
development- Neural Tube Defect
Most common severe birth defect
Approximately 70% of spina bifida cases are avoided if mother takes adequate folic acid during critical
time period
Argument: Treatment with folic acid was for the health benefit of
the baby, not the mother
Child’s injuries are independent of any injury to parent- No injury
whatsoever to motherMother not even a plaintiff
Holding: The FTCA does not preclude recovery for negligent
prenatal injuries to the child of a military service person that are
independent of any injury to the child’s parent
Special Bonus: Because [Redacted] involved preconceptional care, the full gamut of pregnancy care from
before conception to delivery is now subject to review by the courts
Case was remanded to the trial court and tried to a judgment.
Plaintiffs prevailed.
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