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Ortiz v. United States ex rel. Evans Army Cmty. Hosp., 786 F.3d 817 (10th Cir. May 15, 2015) 

May 15, 2015

The plaintiff, the husband of an active-duty service member in the Air Force, filed suit against the United States seeking compensation for their child’s injuries resulting from an in utero deprivation of oxygen during a Caesarean section. The Tenth Circuit held that it lacked jurisdiction over the plaintiff’s claim under the Feres doctrine, which represents a limited judicial exception to the federal government’s broad waiver of sovereign immunity under the Federal Tort Claims Act for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” The Feres doctrine had previously been applied broadly to preclude suits by third parties that derive, directly or indirectly, from injuries to service members incident to military duty. As a matter of first impression, the Tenth Circuit held that it was bound to apply the “genesis test,” and specifically the injury-focused approach to that test, as opposed to the treatment-focused approach, for in utero cases. Applying the appropriate test, the Tenth Circuit held that the child’s injury was derivative of an injury to the mother.