In 1950, in a case called Feres v. United States, the Supreme Court ruled that the U.S. is not liable under the Federal Tort Claims Act for personal injuries sustained by active-duty military personnel or injuries resulting from the negligence of others.
Naturally, all military personnel know about the risks of active duty prior to joining, so it makes sense to bar lawsuits for wartime injuries. However, the Feres ruling has been unfairly applied to medical malpractice situations. That’s all changing.
Military personnel can now sue for medical malpractice
A provision in the 2020 National Defense Authorization Act (NDAA) makes it legal for military personnel to sue the government for medical malpractice for the first time since 1950. It sounds hard to believe, but since 1950, courts have thrown out thousands of medical malpractice complaints, discouraging military personnel from even trying to file suit.
The Navy Times reports that the 2020 NDAA still bars service members from filing claims for injuries caused by medical malpractice in a combat zone, and they can’t sue in federal court. All military medical malpractice claims must be adjudicated administratively. The Department of Defense will pay service members or their beneficiary directly for all substantiated claims under $100,000. Claims above $100,000 will be reviewed and paid by the Treasury Department.
Not all mistakes constitute medical malpractice
Military doctors are, like all doctors, prone to making mistakes. Those mistakes can include missed/delayed diagnosis, medication errors, surgical mistakes, anesthesia errors, and emergency room errors. These medical errors usually support medical malpractice lawsuits. However, not all mistakes are grounds for a lawsuit.
Medical malpractice lawyers from Wilson Law explain why some medical mistakes don’t support a malpractice suit, “To establish medical malpractice,” they say, “it is not enough for a patient to show that a doctor made a mistake. The patient must also show that the medical professional’s mistake was a deviation from what the medical community in his or her area of medicine traditionally accepts.”
Establishing medical malpractice in the military should be no different than establishing malpractice in civilian hospitals. However, the DOD doesn’t have much experience handling medical malpractice claims. The DOD is likely to make decisions that some victims don’t agree with. Since these claims can’t be heard in federal court, victims who disagree with DOD rulings will have little recourse.
Hopefully the DOD will bring in some experts to observe and provide counsel for making the right decisions until ruling on medical malpractice claims becomes familiar. It’s a learning experience for the DOD, and unfortunately, those who file claims in the early days are more likely to get the short end of the stick. In the long run, however, this new provision will influence a higher standard of medical care.
The military has a reason to improve medical care
Military doctors regularly perform complex, high-risk surgeries, which puts their patients at great risk. It’s crucial for military doctors to perform at a high level at all times. When there are no consequences for mistakes, and doctors know they can’t be held liable for medical malpractice, it opens the door for careless mistakes that could have been avoided.
Under the 2020 NDAA’s new provision, there’s no doubt military doctors will be held to higher standards; they won’t get away with mistakes that form the basis of medical malpractice suits. The government will do everything possible to avoid lawsuits, including raising the bar for physicians and surgeons. Medical practitioners who want to keep their job and avoid getting dishonorably discharged will have no choice but to work harder to consciously provide a higher standard of medical care.
If you have a military medical malpractice claim to file, the Military Times published a list of where and how to file for the Army, Navy, Marine Corps, and Air Force.
The new law is a step in the right direction, but is limited
Military personnel and their families have been suffering for decades under the Feres ruling. This new provision is a step in the right direction. However, it’s not retroactive. The new law gives victims just two years to file a medical malpractice claim. However, anyone filing a claim in 2020 can seek redress for incidents back to 2017.
For thousands of victims who can’t file a claim, the new law isn’t enough. Perhaps one day there will be another way for past victims to recover compensation for their losses.
