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Gender discrimination prevents baby brain injured during birth at a military hospital from getting compensation: U.S. Supreme Court to hear the case

February 27, 2016

The Supreme Court will soon consider whether to correct a serious example of gender discrimination in the military. Air Force Capt. Heather Ortiz went to a military hospital ready to give birth to her child. Just before delivery, a series of errors by hospital staff caused her blood pressure to drop, depriving the fetus of oxygen for an extended period. Her newborn daughter suffered severe brain damage and she needs round-the-clock care.

Under Feres v. United States, a 1950 decision by the Supreme Court, military members themselves cannot sue the government for injuries they suffer on the job.  Feres should not prevent this military family from suing for compensation because the injury was to the baby who was obviously not active duty.  

However, in the Ortiz case the U.S. government argued, and the 10th Circuit federal appeals court agreed, that under the Feres doctrine, the family could not recover damages for malpractice because the baby’s condition was the result of injuries to her mother, an active duty member of the military.   Notably, if this had happened to the child of an active duty military father, both parents and the child could have been compensated.  Accordingly, the application of the Feres doctrine to an active duty mother like Capt. Ortiz results in gender discrimination and punishes a child who is not an active duty military member.  Hopefully the U.S. Supreme Court will recognize the injustice and overturn this outdated doctrine.

If you are an active duty mother or a military dependent mother and your baby suffered a birth injury or death during birth at a military hospital , we can help. Please contact our experienced military birth injury lawyer for a free, confidential consultation by either calling toll-free at 877-695-8757 (calls are answered 24/7), e-mailing us at LawHelp@MiitaryMedicalMalpractice.com, or by filling out the form at the top right side of this page.

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