Feres Doctrine Inapplicable to Lost Cerebral Palsy Claim

by David Cosgrove

James Moscow was born at Langley Air Force Base. Both of his parents were serving on active duty at the time of his birth. He was born with cerebral palsy and suffered from blindness and seizures. His father sought advice about a potential medical malpractice claim from the legal officer at Langley. That attorney told them that they could not file a claim due to the “Feres Doctrine”. The Feres Doctrine is based upon a Supreme Court decision in which the Court held that the Federal Tort Claims Act was not intended to waive sovereign immunity from claims by members of the armed services against the United States. The attorney on base was wrong because young James was not a service member.

The statute of limitations on James’ medical malpractice claim expired in 1984. In 1987 his parents discovered that they had received bad legal advice. Two years later young James brought suit claiming both medical and legal malpractice against the United States. The District court dismissed both of his claims, holding that the medical malpractice claim was barred by the statute of limitations and the legal malpractice claim was barred by the Feres Doctrine.

The United States Court of Appeals for the Eighth Circuit took up James’ appeal of the dismissal of both of his claims. That court upheld the dismissal of his medical malpractice claim, but breathed new life in to his legal malpractice claim. Why could James bring a legal malpractice claim? Because as a non-service member, the Feres Doctrine did not apply to James. But his medical malpractice claim was still time-barred.

At trial, legal malpractice plaintiffs must establish that they would have prevailed in the underlying suit squandered by the legal practice. It is called “the case within the case.” As such, James’ attorneys still had a massive task ahead of them. Establishing the legal malpractice at the surface – the ignorant advice from the base attorney – should be fairly easy. But they must also, in effect, put on and win the original medical malpractice case. In other words, to recover damages, they must show that they lost “a winner.” And preparing and establishing a cerebral palsy medical malpractice case is a massive undertaking. This firm, along with another prominent firm, is going to trial in a cerebral palsy case this summer. The case has already been litigated for four years. Between the two sides, there will be almost 20 expert witnesses. Food for Thought.