A nurse unwittingly inserted a breathing tube into the stomach of an Air Force non-commissioned officer rather than his throat after routine appendectomy surgery at a military hospital in California in 2003. The young man died as a result, and his case is now the rallying cry of critics who strongly oppose the current legal ban on medical malpractice lawsuits against the military and want the Supreme Court case that supports it overturned.

That case was decided more than 50 years ago and led to what is commonly called the Feres Doctrine, which lumps medical error together with battlefield casualties. The Federal Tort Claims Act bars soldier suits against the United States for combat-related wounds and fatalities, and the Feres Doctrine expanded that notion to include hospital negligence, the Court ruling that no lawsuit would be entertained that related to any injury "incident to military service."

For obvious reasons, that doctrine and the insurmountable hurdle it represents to military personnel and their family members who suffer from acts of medical malpractice is anathema. Further, it is galling, with the brother-in-law of the deceased Air Force sergeant saying that people who are going into the military "are signing away their rights to get good health care in the military system."

The Supreme Court is eliciting further information from lawyers on the case and doctrine and will soon decide whether to take the case.

"They're the ones who broke it," said one interested party in reference to the Supreme Court, "so they are in the best position to fix it."

Related Resource: Associated Press, "Military faces challenge to malpractice shield" April 22, 2011