Can the feres doctrine survive TRICARE, and should it?

Abstract

As the total force structure of the U.S. armed forces downsizes, the Military Health Services System (MHSS) is taking commensurate cuts in personnel and resources. To minimize costs and optimize readiness, the Department of Defense seeks to increase resource sharing and support provided by managed care support contracts under TRICARE as well as contracting of civilian providers to provide health care in military treatment facilities. Proponents of such arrangements claim that these options result in increased quality of, and improved access to, health services at a substantial savings for MHSS. Central to this controversy is the Fetes doctrine, which prevents members of the armed services from suing the government for any death or injury that is in some way 'incident to service.' The purpose of this paper is to explore the liability issues posed by these new contractual arrangements as well as their potential effect on Feres doctrine reform.