Feres Doctrine:

When Military Service Becomes the Reason You Cannot Sue

There is a legal doctrine most military families will never hear about until something has gone terribly wrong.

It is called the Feres Doctrine.

I learned about it the hard way.

When my husband died while serving on active duty, I believed there should at least be a legal process to examine whether military medical malpractice contributed to his death.

Instead, I was told that because he was active duty, I could not pursue the kind of claim that a civilian family might have been able to pursue under similar circumstances.

The reason was Feres.

And if you have never heard of it, you probably should.

What Is the Feres Doctrine?

The Feres Doctrine comes from the 1950 Supreme Court case Feres v. United States.

In simple terms, it generally prevents service members from suing the federal government under the Federal Tort Claims Act for injuries that are considered “incident to military service.”

That sounds, at first, like something designed to prevent lawsuits over battlefield decisions.

If a commander orders a unit into combat and someone is injured, civilian courts obviously should not be second-guessing battlefield tactics through ordinary negligence lawsuits.

That makes sense.

But Feres did not stay neatly confined to combat.

Over time, the doctrine became much broader.

It has been applied to training accidents, injuries on military installations, supervision, military decision-making and, most controversially, medical malpractice involving active-duty service members.

That is where the doctrine becomes very personal for families like mine.

My Husband Did Not Die on a Battlefield

My husband, Sgt. Jeremy “Jay” Seals, served in the Army and deployed to Afghanistan.

His story did not end with a gunshot wound or an IED.

It ended with cancer.

Years before his death, while we were stationed overseas, a scan showed an abdominal mass.

The follow-up that should have happened did not.

Years later, in 2016, Jay was diagnosed with Stage IV stomach cancer.

He lived another 26 months.

He died on October 31, 2018, at the age of 45.

At the time of his death, he was serving on active-duty Title 10 orders.

His military records ultimately reflected that he died while on active duty and that his condition was considered in line of duty.

You might assume that those facts would have strengthened a medical malpractice claim.

Under Feres, they did something very different.

His active-duty status became part of the reason I could not pursue one.

Think About How Backward That Sounds

The government could recognize that my husband was serving.

It could recognize that his death was connected to that service.

It could determine that his death occurred in line of duty.

But when the question became whether negligence in the military medical system contributed to his death, his status as an active-duty service member became a legal barrier.

That is one of the most difficult parts of Feres to explain to people outside the military community.

Imagine a civilian receiving negligent medical care at a federal facility.

Depending on the circumstances, that civilian may be able to pursue a claim under the Federal Tort Claims Act.

Now imagine an active-duty service member receiving negligent medical care.

That service member may be barred from pursuing the same type of claim precisely because the treatment occurred in connection with military service.

Same medical mistake.

Same potential harm.

Very different legal rights.

This Is Not Just About Money

Whenever lawsuits involving military families are discussed, somebody inevitably reduces the issue to compensation.

That misses the point.

A legal claim can also provide something families desperately need:

accountability.

It can require records to be examined.

It can require experts to evaluate what happened.

It can force institutions to answer questions.

It can establish whether standards of care were followed.

And sometimes it can reveal systemic problems that could hurt someone else.

When a legal doctrine closes that door before the facts are fully examined, families are not simply losing the possibility of a financial award.

They may also be losing one of the few mechanisms available for forcing institutional accountability.

Congress Eventually Recognized the Problem (too late for me)

For decades, active-duty medical malpractice cases remained largely trapped behind Feres.

Then came the case of Army Sgt. 1st Class Richard Stayskal.

Stayskal's cancer was reportedly missed by military medical providers. His advocacy helped force Congress to confront the problem.

In 2019, Congress created a new administrative medical malpractice claims process for certain active-duty service members.

That law is now found at 10 U.S.C. § 2733a.

That was progress.

But it did not repeal Feres.

It created a limited administrative process inside the Department of Defense.

That distinction matters.

Service members still generally do not receive the same opportunity to bring an ordinary Federal Tort Claims Act lawsuit in federal court.

And for families whose injuries or deaths occurred before that law took effect, the reform did not magically reopen every old case.

Mine was one of those cases.

Jay died in 2018.

The law changed 2 months too late for the case to be reviewed.

That Is Why I Still Talk About Feres

I cannot change what happened to Jay.

I cannot go back to 2012 and make someone follow up on that scan.

I cannot go back to 2016 and turn Stage IV cancer into Stage I.

I cannot change the legal system that existed when he died.

But I can talk about it.

Because military families should know that this doctrine exists.

Service members should know.

Spouses should know.

Veterans advocates should know.

Members of Congress absolutely should know.

And anyone who says they support military families should understand that supporting them means more than attending ceremonies and saying the right things on Memorial Day.

Sometimes it means asking whether the laws governing military families are actually fair.

Military Service Should Not Eliminate Accountability

I understand that military service is different from civilian life.

There are situations where commanders must make decisions that cannot be litigated every time something goes wrong.

Combat is not ordinary employment.

Military discipline matters.

Operational decisions matter.

National security matters.

But medical negligence is not battlefield strategy.

Missing a diagnosis is not a combat decision.

Failing to follow up on an abnormal medical finding is not a tactical order.

And asking whether a doctor met the appropriate standard of care is not the same thing as asking a federal judge to command troops.

We should be capable of recognizing that distinction.

Reform Does Not Mean Attacking the Military

This is another lesson advocacy has taught me.

You can support the military and still criticize a military policy.

You can respect military medicine while acknowledging that malpractice happens.

You can honor the people who serve while demanding accountability from the institutions responsible for their care.

Those positions are not contradictory.

In fact, accountability should strengthen institutions.

If a system can only function when nobody is allowed to challenge its mistakes, that is not strength.

That is insulation.

My Claim Was Denied. The Question Did Not Go Away.

My opportunity to pursue a traditional malpractice claim ended years ago.

That does not mean the underlying policy question disappeared.

Should an American lose ordinary legal protections simply because he or she put on a uniform?

Should a surviving family have fewer opportunities for accountability because their loved one died while serving?

Should military medical malpractice be treated differently from comparable malpractice involving civilians?

Those are questions worth asking.

The Feres Doctrine has existed since 1950.

That does not make every application of it fair.

And it certainly does not mean military families should stop questioning it.

My husband served his country.

His service should never have been the reason his family had fewer options for accountability after his death.

That is why I will continue talking about Feres.

Not because I expect to change my case.

But because the next military family should not have to learn what the Feres Doctrine is only after something has already gone terribly wrong.