sovereign immunity you cannot sue the king (or the government)
DESCRIPTION
Brown v. United States 462 F.3d 609 (6 th 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]. - PowerPoint PPT PresentationTRANSCRIPT
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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]
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Sovereign ImmunityYou cannot sue the king
(or the government)
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Until: Plane crashes at full speed into the tallest building in
Manhattan with many killed and injured
September 11, 2001?
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July 28, 1945
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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.
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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
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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)
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“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.
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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
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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
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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
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BUT Children born of active duty military fathers (via civilian
mother) are NOT barred by Feres and have full recourse for negligent prenatal care
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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
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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
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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
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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
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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
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Case was remanded to the trial court and tried to a judgment.
Plaintiffs prevailed.