There is some good news for active-duty victims of medical malpractice by military health care providers. For almost 70 years, such active-duty individuals had no recourse no matter how blatant the wrongdoing. Now, thanks to a provision in the new 2020 National Defense Authorization Act (NDAA), active-duty military personnel will have a limited right to make a claim for monetary damages.
You are Eligible for a Claim if:
- You are an active-duty military member
- You have been harmed by medical malpractice
- The medical malpractice took place in a Department of Defense facility
- The medical malpractice was conducted by a DoD health care provider
- The event occurred in 2017 or later and/or within the last two years
If you or a family member is an active-duty servicemember and has suffered a serious, permanent injury related to a government or military physician’s malpractice or negligence, you may want to talk to a lawyer. We provide free consultations to help determine if you have a valid medical negligence case under the new law.
Our firm is based in Washington, D.C., and can handle injury claims against the United States government anywhere. The final decision-makers in the government often are based in or near Washington – in the U.S. Justice Department or one of the military branches.
Our firm has a unique experience with military cases that separates us from other firms. Of Counsel Attorney Peter R. Masciola, Brigadier General (Retired) has over 35 years of government and military medical malpractice experience from both sides of this law practice area. Attorney Masciola understands how to best help military families victimized by the government they served.
We will need to obtain complete medical records to do a good analysis.
Feres Doctrine (Revisited)
It seems obvious – active-duty military personnel should have the right to the same high-quality medical care that American civilians do. Unfortunately, this right is obstructed by the Feres Doctrine, an archaic legal doctrine repeatedly invoked to deny military members the fundamental right to sue for injuries. Based on an oft-criticized Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950), the law bars servicemembers from suing the federal government and obtaining just compensation for injuries or deaths that occur “incident to service.” The Supreme Court’s broad interpretation of the term through the years has proscribed claims varying from sexual harassment and assault, to workplace violence, to medical malpractice. With the enactment of the National Defense Authorization Act for Fiscal Year 2020 (NDAA), the massive bill that funds the military, active-duty service members will finally have limited recourse for at least one kind of negligence – medical malpractice.
A Brief History
While stationed in Pine Camp, NY on active duty, Lieutenant Rudolph Feres, a veteran of the Battle of the Bulge, was killed in a barracks fire. His wife attempted to sue the federal government, alleging negligence in quartering him in barracks known or which should have been known to be unsafe due to a defective boiler and in failing to maintain an adequate fire watch. The lawsuit was the first of its kind under the recently passed Federal Torts Claim Act (FTCA), which allows any individual to bring civil suit against the United States government for personal injuries. The FTCA was passed in 1946, after fourteen people died when a B-25 Army bomber crashed into the Empire State Building. Due to the longstanding legal principle of sovereign immunity, which barred citizens from suing the federal government unless Congress passed a law specifically consenting to each individual suit, the victims and their families were left with no recourse. In the resulting public outcry, the FTCA, an exception to sovereign immunity, was passed. While the FTCA specifically prohibited troops from bringing claims for injuries “arising out of the combatant activities,” it did not bar suits for other harms suffered while in the military. In fact, it explicitly permitted suits against the federal government when its employees are performing a job that a private employee generally performs in the same manner – such as driving a vehicle or providing healthcare (28 U.S.C. § 2674).
Broad Interpretations Subject Military Personnel to 70 years Of Disparate Treatment
Following the Supreme Court’s decision in Feres, courts have interpreted “incident to service” to bar cases as far ranging as the following:
- A towel being left in a soldier after surgery
- Performing LSD experiments on unwitting subjects
- Rapes and assaults by fellow soldiers
- Attacks by army civilians
- Deliberate exposure to radiation during nuclear tests
- The death of a mother during childbirth likely due to medical malpractice
It would take a particularly adept linguistic contortionist to stretch the meaning of “arising out of the combatant activities” to apply to cases like these. Further, each of these cases arises from conduct that would justify a meritorious personal injury claim. However, the fact that the victims were active-duty servicemembers at the time they were harmed unfortunately voids their cause of action.
A New Administrative Process: The NDAA’s Limited Exception to the Feres Doctrine
While the NDAA, signed into law on December 20, 2019, does not change or repeal the Feres doctrine, it does authorize the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death of a member of the uniformed services that was the result of an act or omission constituting medical malpractice by a Department of Defense health care provider. The process, which will likely look similar to that of the Military Claims Act (MCA), will make the DoD the negligent party, judge and jury over any claim. Unlike similar claims filed in the State Department, DoD malpractice claims will not go to the Department of Justice for consideration. There are additional restrictions. All claims need to be filed within two years of the incident, with an exception for claims dating back to 2017. If Defense Department substantiates the claim and determines it merits less than $100,000, DoD pays the claim directly to the member or beneficiary; if a sum larger than $100,000 is warranted, the claim is forwarded to the Treasury Department for payment. The government will also be liable only for the portion of the compensable injury, loss, or damages attributable to the medical malpractice, which runs contrary to the tort maxim that a defendant takes a victim as he finds him. Additionally, the government is not liable for attorney’s fees and any fee recovered by an attorney is limited to 20 percent of the claim paid. The number of claims likely to be filed is difficult to predict. According to the Defense Health Agency, the number of “sentinel events” — those resulting in death or serious injury, including loss of limb or function or a serious psychological injury — increased in military medical and dental facilities from 121 in 2013 to 319 in 2016.
Criticisms of the New Process
While the NDAA certainly chips away at the injustice of the Feres Doctrine, the new law ultimately falls short of granting active-duty servicemembers their day in federal court. Serious concerns are warranted about the Department of Defense’s ability to fairly adjudicate claims against their own. Its limited scope only extends to claims against the United States for personal injury or death incident to the service of member of the military that occurred in a “covered military treatment facility,” notably exempting facilities operated by the Department of Veterans Affairs. This is particularly worrisome because the VA enters into agreements with medical education programs to train their matriculants, and VA healthcare facilities are available to active-duty servicemembers in emergency situations as well as upon referral through Sharing Agreements or under TRICARE coverage. Finally, this change comes too late for so many. For example, the law comes too late for the family of Rebekah Daniel, a Navy lieutenant who died at a naval hospital following childbirth, allegedly as a result of medical malpractice. In Walter Daniel v. United States, the Supreme Court declined to consider Daniel’s claim of medical malpractice. The bill’s narrow focus prevents justice for Army Captain Katie Blanchard, who suffered a devastating injury in 2016 when an Army civilian threw gasoline on her and lit a match. Blanchard sustained disfiguring injuries as a result of this attack and alleged the Army ignored her complaints about a dangerous, violent colleague. She filed a personal injury claim, based on the Army’s inaction. But Blanchard remains without a remedy due to the Feres Doctrine.
The brave men and women who join the military do so with their eyes wide open about the risks they may face on the battlefield. But this covenant must not include assuming the risk for sexual assault, workplace violence, or medical malpractice. We owe them better.