United States Troops’ Ability to Sue for Medical Malpractice

United States Troops’ Ability to Sue for Medical Malpractice

For years, one seemingly minute aspect of American law has prevented active-duty service members from achieving full legal protections. Active-duty service members may not sue the government for the military’s negligence, even if the conduct leads to injuries. In addition, service members are unable to sue the federal government for injuries sustained through medical malpractice.

There is a recent movement underway in the legal field aiming to change the limitations on active-duty service members ability to sue the government. A defense authorization bill includes a provision that expands active-duty members’ ability to achieve justice after harm. The provision would permit troops to file negligence lawsuits when the circumstances amount to medical malpractice. To learn more about your specific case speak with a medical malpractice attorney today to discuss your recovery options.

The Feres Doctrine: An Overview

In 1944, Lieutenant Rudolph Feres was one of many men battling on D-Day to achieve the final defeat of Nazi Germany. Feres met his tragic death stateside in a barracks fire. His widow, understandably, attempted to sue the Army for negligence in causing the fire. However, her efforts were ultimately unsuccessful. Lieutenant Feres’s name has since grown synonymous with the legal doctrine that prevents individuals who are injured as a result of their military service from seeking compensation from the federal government.

The Supreme Court’s decision in Feres v. United States laid the groundwork for the legal doctrine now known as the Feres doctrine. The doctrine stands for the premise that the government cannot be held liable for injuries sustained by active-duty military members.

Why Is the Doctrine in Place?

The Feres doctrine was created as a result of:

  • The Initial Passing of the 1946 Federal Tort Claims Act
    • The Federal Tort Claims Act was not associated with Lt. Feres.
    • The Act was created in response to an Army bomber crash into the Empire State Building in 1945.
    • In the accident, 14 victims died and dozens were injured; however, victims could not sue due to a legal principle referred to as “sovereign immunity.” Sovereign immunity operates to prevent individuals from suing the federal government.
    • Despite the protection of sovereign immunity, Congress can pass a law that would allow victims to sue the federal government. Thus, the 1946 Federal Tort Claims Act was enacted.
    • The Act allowed for numerous civil suits against the government, but made an exception for military members who sustained injuries “arising out of the combatant activities.” Thus, the law prohibits active-duty military members from filing tort claims against the federal government.

The Provision

Today’s military members are seeking more legal protection for instances when they sustain injury and harm during active duty. The provision provides a solution; however, it is not perfect. There’s no doubt that servicemen and women deserve an opportunity to file claims for negligence and misconduct. As a private citizen, the law affords you that opportunity.

Unfortunately, as written, the provision does not grant active-duty military members the full extent of the opportunities provided to private citizens. However, it does provide additional protections that military members currently do not enjoy. The provision allows military members to pursue compensation for damages resulting from actions constituting medical malpractice.

What New Freedoms Will Active-Duty Military Personnel and Their Surviving Families Have?

The proposed provision to the National Defense Authorization Act generally does not allow service members to sue the U.S. federal government in malpractice tort claims. However, it does allow members or their families to seek compensation for injury or death resulting from medical malpractice.

Active duty victims or their survivors can file claims for compensation in cases that involve medical negligence and malpractice. However, the claims must involve military health providers and cannot involve medical facilities that operate within combat zones.

The provision includes the following directives:

  • If a claim is substantiated and deserves less than $100,000:
    • The Department of Defense pays that claim directly to the active-duty member or their survivor(s).
  • If a claim is substantiated and warrants more than $100,000:
    • The claim is forwarded for the U.S. Department of Treasury, which pays the award to the active-duty member or their survivor(s).

Active-duty members and their loved ones must file their claims within the time period specified by the statute of limitations. Victims or survivors must file a claim within two years of the medical malpractice incident that caused the injury or loss. However, once enacted, there is an exception for individuals filing claims in 2020. Claims may be filed for incidents that occurred as far back as 2017.

What Is Medical Malpractice?

Walter H Emroch
Walter H. Emroch (retired), Medical Malpractice Attorney

Medical malpractice is broadly defined. Medical malpractice can occur in a variety of circumstances. When a healthcare professional causes injury to a patient as a result of their own negligent act or failure to act, they may be liable for medical malpractice.

According to the American Board of Professional Liability Attorneys, medical malpractice claims must fulfill three requirements. The requirements instruct injured parties to demonstrate:

  1. A violation of the professional standard of care.
    • Healthcare providers must operate with the universal standard of care in mind.
    • Medical standards that are widely accepted as reasonable and prudent forms of medical treatment or attention collectively form the professional standard of care.
    • Patients have the right to expect healthcare providers to operate under this standard.
    • To prove negligence, it must be established that the standard of care was not met.
  2. The negligence (or violation of the standard of care) caused an injury.
    • Medical malpractice must result in injury or death.
    • Violations of the standard of care, alone, do not constitute medical malpractice.
    • The victim must demonstrate that they suffered injuries that would not have been sustained in the absence of the healthcare provider’s negligence.
    • Unfavorable outcomes alone do not constitute injuries.
  3. The injury resulted in significant damages.
    • Medical malpractice cases are lengthy and expensive; laws are designed to ensure that only cases that caused significant damages survive.
    • Victims or survivors must show significant damages resulted from a violation of the accepted standard of care, e.g., disability, loss of income, or significant medical bills.

With that in mind, a wide range of behaviors (and failures to take action) may qualify as medical malpractice. Dangerous misdiagnoses, sloppily-performed surgeries, medication errors, and a wide range of other negligent care practices can form the basis of a claim.

What Steps Should I Take Next?

Undoubtedly, any legal claims process can be complex and confusing. Once you tack on military regulations and other rules, your path to compensation can become more complicated. Our government intentionally makes it difficult for innocent active-duty victims and their survivors to bring claims for their suffering. However, contacting a qualified attorney may be able to help injured victims receive the compensation that the law will allow.

William B. Kilduff


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