Mia Donnelly
83 Geo. Wash. L. Rev. 647
In 1948 Congress enacted the FTCA, finally cracking open courthouse
doors to private individuals injured by the negligent or wrongful acts of federal
government employees. A mere two years later, however, the Supreme
Court decided Feres v. United States and significantly cut back on this privilege
by barring servicemembers from suing the United States for injuries suffered
incident to service. The Court later reasoned that servicemembers have a
distinctively federal relationship with the government, that they are already
able to receive compensation through the Veterans Benefits Administration,
and that lawsuits brought by servicemembers would implicate military discipline.
Courts have since extended the Feres doctrine to reach claims brought
by children of servicemembers. They have almost unanimously allowed children
to sue for injuries caused by medical malpractice at birth or in utero, but
have dismissed claims for injuries resulting from a military parent’s exposure
to radiation or toxins prior to the child’s conception.
Children may suffer from parental exposure injuries in a wide variety of
situations—intentional exposure, chemical weapons incidents, contact with radiation,
or water contamination. Despite this, courts have dismissed exposure
claims brought by children, creating asymmetry between these children and
their peers injured by medical malpractice. In addition, courts have engendered
confusion by applying several different tests when deciding whether to
apply Feres to these claims. Finally, dismissing these claims under Feres has
created severe injustice for children who oftentimes have no other path to
recovery.
This Note argues that Congress should address this issue and create a VA
benefits program for all children of servicemembers injured by parental exposure
at any time. It should model this program after the existing programs
available to children of Vietnam and Korean War veterans born with spina
bifida, children of women Vietnam veterans born with certain birth defects,
and children of Camp Lejeune veterans. The proposed Act would provide
comprehensive healthcare and a monthly monetary allowance to child claimants
based on their level of disability. The Act would not require claimants to
prove fault, but it would require proof of a causal nexus between the exposure
and the child’s injury. Congress should implement this benefits program because
none of the previously suggested solutions adequately provide a remedy
for children harmed by parental exposure and the proposed Act would not
implicate any of the Feres rationales.
