In a Washington hospital, Rebekah Daniel gave birth to her first child, then bled to death over several hours. In North Carolina, Richard Stayskal was repeatedly told that his worsening symptoms were caused by asthma and pneumonia, even though a CT scan months earlier revealed an obvious growth on his lung. In California, Dean Witt went to a hospital to have his appendix removed and ended up in a permanent vegetative state because a breathing tube was inserted into his esophagus, rather than his airway.

Normally, these individuals and their families would have the right to bring a claim for medical malpractice against the hospitals for rendering negligent care. But the families of Rebekah, Richard, and Dean have no such remedy from our civil justice system because their loved ones were members of the military. Due to an antiquated Supreme Court decision from 1950, active-duty servicemembers are barred from bringing medical malpractice claims against the government—even when the medical care at issue is unrelated to any combat-related injury and is administered thousands of miles from a combat zone.

The Federal Tort Claims Act (FTCA), enacted in 1946, allows private parties to pursue tort lawsuits against the United States under certain circumstances, while preserving the government's immunity in others. The text of the FTCA strongly suggests that Congress did not intend to bar claims for medical negligence outside the context of combat. The FTCA shields the United States from any tort claim "arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Yet in 1950, the Supreme Court issued a sweeping decision that obliterated that narrow exception. The court held that the FTCA barred recovery for injuries sustained "in the course of activity incident to service." This rule, known as the Feres Doctrine, has prevented servicemembers like Rebekah Daniel, Richard Stayskal, and Dean Witt from accessing the courts ever since.

The Supreme Court has been asked several times to revisit this decision, including as recently as May, but has always declined. The issue has led to unusual alliances on the hyper-polarized Court; in May, the Justices who expressed a wish to revisit Feres were Justices Thomas and Ginsberg. This puts the ball in Congress' court. Language to repeal Feres was drafted as an amendment to the Defense Authorization Act and received bipartisan support in the House this fall. And while both Republican and Democratic Senators have indicated a willingness to legislatively overturn Feres, the effort stalled in September. This is due in large part to Senator Lindsay Graham, the chairman of the Judiciary Committee (and a former judge advocate general in the Air National Guard), who has steadfastly opposed any change to the doctrine.

Graham's stated objection, which parrots one of the Supreme Court's rationales for enacting the doctrine, is that the military already has a no-fault compensation system in place—for example, life insurance, a $100,000 "death gratuity" paid to the family of a servicemember who dies while on active duty, and benefits through the VA. This rationale is simply not sufficient. The Feres Doctrine is at odds with the FTCA's narrow focus on "combatant activities … during time of war;" it shifts the financial burden caused by medical negligence to servicemembers; and it is discriminatory in that it denies access to the courts to only one segment of the population. Moreover, exempting military hospitals from liability for medical negligence is likely to exacerbate, not ameliorate, error rates: without civil accountability, the government lacks incentive to study adverse events, learn from mistakes, and implement policies that prioritize patient safety. Men and women in uniform take incredible risks in service to this country; receiving medical care on U.S. soil should not be one of them.

If lawmakers across the aisle can find common ground on this issue in our current political climate, overturning Feres is truly a change whose time has come.