Harris, now in private practice, said he stood by his position that "it would be unconscionable to subject the military to an adversarial civil trial process."
Military doctors had mistaken a deadly melanoma for a wart.
His case prompted Rep. Maurice D. Hinchey (D-N.Y.) to promise renewed efforts to overturn Feres. Previous bills have passed easily in the House but died in the Senate.
"No service member should ever become sick or die as the result of poor military medical care," Hinchey said. "I believe our military has outstanding doctors, but if those doctors fail our men and women in uniform, then there must be some system of accountability."
Military is 'sole remedy'
One former military doctor told The Times that military medical staffs were well aware that Feres shielded them from malpractice claims by active-duty patients or their survivors.
The doctor, who spoke on the condition that he not be identified, served on the medical staff at Travis Air Force Base. He said staff shortages were chronic there and at other Air Force installations where he worked.
Under such circumstances, he said, "they'll take anyone."
James B. Smith, a New Jersey lawyer who served as a military trial judge during a 30-year service career, said the theory behind Feres was that since the military provided full medical care for members and lifelong veterans benefits, there was little practical need for financial damages for malpractice. "The military is already providing for you, and that's your sole remedy," Smith said.
The 1950 Feres decision encompassed three separate cases. One involved a soldier named Rudolph J. Feres who died in a fire caused by a faulty barracks heating system. The others were the victims of medical malpractice. One had sued after a towel nearly 3 feet long was discovered in his abdomen, left there by military surgeons.
The court was interpreting the Federal Tort Claims Act, which gives citizens a limited right to sue the government for wrongs resulting from the actions of federal employees or agencies.
But the Supreme Court, in a unanimous opinion by Justice Robert H. Jackson, reasoned that active-duty members of the military could seek other remedies for such wrongs, including Veterans Administration benefits. "The compensation system, which normally requires no litigation, is not negligible," Jackson wrote.
The Supreme Court came within a single vote of overturning Feres in 1987. Justice Antonin Scalia wrote in the dissenting opinion for the four-member minority: "Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received."
Among the curious aspects of Feres is that it bars malpractice suits by active-duty military personnel but not by their spouses or other family members, who also are entitled to treatment at military hospitals.
"It doesn't make any sense," said Washington-based lawyer Eugene Fidell. "If a doctor malpractices on a dependent on one day, the family can sue. But if he commits the same malpractice the next day on a GI, they can't."
An investigative panel convened by the Air Force shortly after Witt's surgery concluded in its still-unreleased report that "due to assignments, deployments and recent ill health," the anesthesia unit at the Travis Air Force Base hospital was badly understaffed.
"There is insufficient manning to support operational tempo and the teaching mission of the hospital," the report said. It found that the authorized complement of seven anesthesiologists was down to four available for duty.
"This medical incident was due to an avoidable error," the report said. "The practice of anesthesia at a medical center should not rely on the minimum standard."
In response, Travis officials said the hospital could increase its anesthesia unit only if the Pentagon provided additional personnel. Base officials declined to comment on any aspect of the Witt case, citing privacy restrictions.
Despite the long legal odds, Witt's widow, Alexis, is determined to challenge Feres in court. This month she was formally notified that her administrative claim against the Air Force had been declined, an expected rejection that exhausted all options but litigation.
"As a family," said her sister Carmen Voegeli, a Marine veteran, "we have a right to know what happened. How dare the military use these men and take away their rights."
One haunting coincidence that could be a factor in the Witt family's challenge of Feres involves a nurse anesthetist who helped treat the airman. After Witt's death, her license was revoked by the state of California for "negligence and/or incompetence."
The same anesthetist had been on duty a year earlier when 22-year-old Texas airman Christopher White died after routine surgery on his shoulder. As in the Witt case, post-surgery care of White was criticized by the state nursing board.
White's family did not try to take legal action. If it had, that might have brought attention sooner to problems in the anesthesia unit.
His father, Harris White, said lawyers had advised him that he could not sue because of the Feres doctrine.