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Death of premature baby fuels latest challenge to Feres doctrine

Nov. 19, 2013 - 05:05PM   |  
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The husband of an Army Reserve member soon will petition the Supreme Court to allow him to sue the military for allegedly forcing his wife, while pregnant, to perform physical activities against doctors' orders in 2006, which he claims led to the death of

The husband of an Army Reserve member soon will petition the Supreme Court to allow him to sue the military for allegedly forcing his wife, while pregnant, to perform physical activities against doctors' orders in 2006, which he claims led to the death of

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The husband of an Army Reserve member soon will petition the Supreme Court to allow him to sue the military for allegedly forcing his wife, while pregnant, to perform physical activities against doctors’ orders in 2006, which he claims led to the death of their son minutes after birth.

Jonathan Ritchie, the civilian husband of soldier January Ritchie, plans to petition the Supreme Court to overturn an appeals court decision dismissing his lawsuit because of the Feres doctrine, the 1950 Supreme Court ruling that bars active-duty members from claiming damages for actions related to military service.

He plans to file the petition within the next two months, according to his lawyer, Eric Seitz.

January Ritchie was an E-4 on active duty at Fort Shafter, Hawaii, in 2006. She claimed her commanding officers forced her to participate in strenuous activities, such as physical training and picking up trash, while she was pregnant.

“She certainly felt responsible as a soldier for carrying out her duties, but she knew that she was at grave risk,” Seitz said. “Everybody knew the risks, and yet they required her to come in, report for duty, stand around, pick up trash.”

Although January Ritchie underwent an emergency surgery to prevent premature birth and was still under doctor’s orders while on active duty, she claimed her commanders continually ignored her physician’s instructions that she should not perform her normal duties and be placed on “relative rest,” according to the suit.

In August 2006, she prematurely gave birth to her son, Gregory, who died about 30 minutes later.

The Defense Department, the Army and Fort Shafter declined to comment as a matter of policy on cases that are in litigation. The Ritchies also have declined to directly comment on the case.

“When you lose an infant, especially a perfectly formed baby, the scars may last for a while,” Seitz said. “It was just a devastating experience, and they received very little sympathy from the military or particularly from her company commanders and leaders who we hold responsible for what took place.”

Seitz said January Ritchie’s civilian physician, Dr. William McKenzie of Wahiawa General Hospital in Hawaii, cited the physical exertion that she was forced to perform as the cause of the premature birth and subsequent death.

Jonathan Ritchie filed suit in U.S. District Court in Hawaii after the government denied his claims for administrative damages. He filed the suit on behalf of himself and his deceased son, since his wife is barred from doing so by the Feres doctrine, Seitz said.

In April 2011, the federal court dismissed the case, citing the Feres doctrine.

“A child’s premature birth and subsequent death would be devastating to any parent,” District Judge J. Michael Seabright wrote in his concluding statement. “As tragic as it might have been here, however, this court must apply the law as stated in Feres and subsequent cases.”

Jonathan Ritchie appealed to the 9th U.S. Court of Appeals, but in October the court dismissed the case, again citing Feres.

However, Circuit Judge Dorothy W. Nelson, in a separate opinion, questioned the doctrine’s fairness.

“The right a pregnant woman has to serve means little if her service requires she put her fetus’s health and well-being at risk,” Nelson wrote. “In refusing to recognize Ritchie’s tort claims, we are continuing the legal fiction that these alleged wrongs are part of the military’s discipline structure.”

Seitz said the judge’s strong statements were what the Ritchies were looking for.

“We never expected to win,” Seitz said. “We were hoping for what we got, which was a very ringing condemnation of the Feres doctrine and a call for it to be overturned.”

The Ritchies now live in Washington state, where January Ritchie serves in the Army Reserve. The couple has three children, Seitz said.

Greg Jacob, policy director of the Service Women’s Action Network, an organization that focuses on equality issues for military women and their families, said more education and experience surrounding women’s health could help supervisors better understand the health needs of female troops.

“You’re really dependent on your commanders, and the people that are in charge of you to do the right thing and take care of you,” said Jacob, a former Marine. “And when they don’t understand … issues around women’s health or issues around pregnancy, they just kind of go with their gut and try to figure things out the best they can.”

The Feres doctrine’s legal barrier to claims of medical malpractice and negligence against military health care providers, particularly in garrison settings outside combat zones, has long been criticized, but various legal challenges to the law over the years have consistently failed.

“Just going off the history, it’s a long shot,” American University law professor Stephen Vladeck, said. “Feres has been on the books since 1950, and there’s been very little interest on the courts historically in revisiting that decision.”

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