In a petition for certiorari filed today, CCL asked the U.S. Supreme Court to review a Tenth Circuit decision that dismissed claims made on behalf of a child who suffered a severe brain injury as a result of malpractice committed at a military hospital during her delivery. In doing so, the court relied upon the U.S. Supreme Court’s decision in Feres v. United States, 340 U.S. 135 (1950), which carved out an exception to the Federal Tort Claims Act for claims made by active-duty members of the military service that are incident to that service. The Tenth Circuit held that the newborn’s injuries were derivative of the active-duty mother’s and therefore foreclosed under Feres. In contrast, if active-duty parent of the injured child was an active-duty father, Feres would not have stood as an obstacle to seeking compensation through the courts. In addition, several federal circuit courts, notably the Fourth and Eleventh Circuits, treat the baby as a separate patient from the mother, enabling the child to present a claim. The result is that some babies, injured in identical fashion, have a cognizable claim and some do not, either because of what part of the country the delivery took place or because of the gender of the parent.

The petition, filed in Ortiz v. United States, asks the Supreme Court to resolve the split in the circuits and determine whether the differential treatment of children based on a parent’s gender comprises an unconstitutional form of gender discrimination.  CCL President Robert S. Peck serves as counsel of record in the case. He was joined on the petition by Laurie M. Higginbotham of Austin, TX, James E. Puga and Bruce Braley of Denver, CO, and Joseph F. Bennett of Colorado Springs, CO. A response to the petition from the U.S. Solicitor General is the next likely step in the case.