Ortiz v United States

Ortiz sued for negligently inflicted in utero injuries to his daughter. The district court dismissed for lack of subject matter jurisdiction as the mother was active duty Air Force. The panel, with one judge concurring, affirmed. The majority adopted an injury focus test to evaluate in utero claims and held that because the injuries to the child here were the result of negligent administration of drugs to the mother who suffered injury as a result, child’s injuries had their genesis in the military’s injury of mother and Ortiz’s claims were thus barred under the Feres doctrine. The concurrence  argued that the correct rule should be is the conduct at issue, not the injury in question,  was done incident to military service as this is more consistent with United States Supreme court precedent applying the Feres doctrine, eliminates the unpredictability inherent in the injury analysis and is consistent with other immunity analysis.