For many years, the Feres Doctrine barred military service members and their families from bringing lawsuits arising out of care provided to active duty military members. This awful law was even extended to birth injuries to service members’ newborns when the mother was on active duty, even though the medical care arose in a non-combat setting and affected the life of a non-military member.
The National Defense Authorization Act
The extreme injustices caused by the Feres Doctrine in precluding claims of medical malpractice, including wrongful death claims, was reexamined in 2019. As a result, the National Defense Authorization Act (NDAA) was enacted in 2020. The new law authorizes the Secretary of Defense to “allow, settle, and pay a claim against the United States for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice (i.e., negligent or wrongful act or omission) of a Department of Defense healthcare provider.” The effective date of the act is January 1, 2020. Further, claims must be brought within two years of the date of the act of medical malpractice. In addition, the incident must have occurred in a VA hospital or other covered military medical treatment facility. Any act of medical negligence occurring outside the VA system can still be subject to a lawsuit, per state laws regarding medical malpractice claims brought against private healthcare providers.
Federal Tort Claims Act
Medical malpractice lawsuits brought against the United States must be brought pursuant to the Federal Tort Claims Act (FTCA). The FTCA requires a wrongful death or personal injury victim to exhaust their administrative remedies prior to filing any suit. Administrative remedies are exhausted by filing an FTCA Form 95 with the applicable governmental agency. The governmental agency has several months to decide whether or not the claim is meritorious. If the government does not make a decision within the allotted time frame, the litigant can then file a suit. Likewise, if the government determines that the claim is not meritorious, the litigant can file a suit. Alternatively, if the government determines that the claim is meritorious, the injured party can negotiate with a governmental lawyer appointed by the U.S. Attorney’s Office.
The Department of Defense
The NDAA differs from the FTCA in that the military member or beneficiary would file a claim directly with the Department of Defense. If the harm caused by the act of medical malpractice or negligence is less than $100,000.00, the Department of Defense can pay the claim directly. If a larger sum is warranted for compensatory damages, the claim would be forwarded to the treasury department for payment. Because the law is new, the exact procedures for pursuing a claim under the NDAA have not been established. As currently configured, it appears that claims will be brought before the Department of Defense and defended by Department of Defense lawyers. This may put the military member at a disadvantage.
The Feres Doctrine
The Feres Doctrine will still apply to healthcare provided in combat zones. However, the NDAA removes a double standard that applies to medical mistakes that would be actionable by civilians, but not military members in non combat situations. The Feres Doctrine continues to ban claims for sexual assault, workplace violence, and training incidents that occur in the field. The NDAA is a step in the right direction, but our military personnel need better protections. It will be interesting to see how the NDAA operates under these new and untested rules.
If you or someone you know needs a medical malpractice lawyer, contact an experienced medical malpractice lawyer, like a medical malpractice lawyer in Cleveland, OH, today.
Thanks to Mishkind Kulwicki Law for their insight into medical malpractice lawsuits with military service members.