We have big news about military malpractice claims for active-duty troops. As many of you know, the American Association for Justice (AAJ) has fought for years to overturn the Feres Doctrine, a law preventing servicemembers from suing for medical malpractice under the Federal Tort Claims Act (FTCA). While the Feres Doctrine was written to protect the military from having to compensate servicemembers for injuries “incident to service” (i.e. wounds from combat), it has since been used to bar them from suing the government when a military hospital fails to care for them properly.
This summer, language was successfully added into the House-passed version of the 2020 National Defense Authorization Act (NDAA). Since then, the House and Senate have been conferencing and negotiating the differences between the house passed bill, and the Senate bill. As a result of these negotiations, the final NDAA included a compromised version of the two bills, which just passed through Congress in December and is expected to be signed into law by the President. While the NDAA will not overturn the Feres Doctrine, it will allow active-duty military and/or their families to seek redress from the Department of Defense (DOD) when they are injured or killed due to medical malpractice in military hospitals.
The compromised language in the NDAA will expand recovery under the Military Claims Act to include active-duty military with medical malpractice claims from military treatment facilities. More specifically, it will create a new statutory section under the Military Claims Act that allows active-duty servicemembers to bring personal injury claims (or their surviving family to bring wrongful death claims) against the DOD for medical malpractice by a DOD healthcare employee (uniformed or civilian) acting within the scope of their employment at a military treatment facility.
Additionally, the act will:
- Create an exclusive administrative claims process allowing active-duty military and/or their families to receive compensation when they are injured/killed from medical malpractice in military treatment facilities;
- Authorize active-duty military to receive uncapped economic and non-economic damages for their injuries resulting from medical malpractice;
- Permit active-duty military servicemembers to be represented by an attorney;
- Allocate up to 20% of the award to cover attorney’s fees (as is the case under the FTCA);
- Give the DOD the authority to create policies and procedures for processing claims, as well as uniform standards regarding duty, breach, causation, and damages for medical malpractice claims; and
- Create more transparency by requiring the DOD to report the number of claims, the resolution of claims, and any other information relevant to the claims process to Congress.
Looking Back and Looking Forward
Compared to the minimal compensation servicemembers and their families could recover previously, this legislation is a significant step forward. For instance, an active-duty servicemember who was injured from medical malpractice would receive little more than a disability benefit through the VA program, so long as the injury from medical malpractice qualified for benefits. If the disability did not qualify, however, the servicemember would receive nothing. The families of servicemembers who are killed from medical malpractice would receive little more than a one-time stipend and deductible benefits, which are nowhere near the equivalent to economic and significantly noneconomic damages (e.g. pain and suffering, loss of consortium, etc.).
This new legislation represents the fact that, for the first time in almost 70 years, Congress has recognized the widespread issue of medical malpractice at military facilities. Increased reporting requirements for these new claims will bring more transparency to the state of military healthcare. By allowing claims for medical malpractice to proceed under the MCA, the government has conceded that these claims are recoverable because they are not “incident to service.”
While this is a historic step in the right direction, we understand that this proposal is far from perfect. Like all other Americans, active-duty servicemembers deserve the right to take their case to federal court and, if necessary, appeal any decisions made by the DOD. We have serious concerns about the DOD overseeing the entire claims process without oversight from neutral decision-makers in the federal court system.
Contact Our Legal Team for Personalized Counsel
Servicemembers choose to make incredible sacrifices to protect our rights and freedom. The Feres Doctrine undermines the respect our nation must have for our military. At Chaikin, Sherman, Cammarata & Siegel, P.C., we are committed to preserving our clients’ rights, and we are proud to serve military members in any way we can. Our attorneys have used our 90+ years of combined experience to recover over $500 million for our clients, and we look forward to providing an unprecedented level of legal support for your case.
Schedule a free consultation or give us a call at (202) 659-8600 today.