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Can Military Members Sue For Medical Malpractice?

For 70 years, federal law has prevented active-duty military service members from suing for compensation for injuries that were a result of military negligence. As a result, military doctors could not be sued for the care they provided to military patients, but could be held accountable if the same care was given to the patient’s spouse and children or to retired personnel. Increasing criticism of the law, known as the Feres Doctrine, led to changes in December 2019, which are likely to lead to a significant influx of medical malpractice claims.

The 2020 National Defense Authorization Act allows active duty military personnel and their next of kin to file claims for death or personal injury caused by military medical providers, subject to certain limitations. First, service members cannot file medical malpractice claims for personal injuries caused by medical malpractice in a combat zone. Second, claims are to be handled administratively, not in court. The Department of Defense is responsible for investigating claims. Payments are based on the average compensation amount for an injury in the federal court system.

Substantiated claims under $100,000 will be paid directly to the service member or a surviving beneficiary by the Department of Defense, while claims valued over $100,000 are subject to review by the Treasury Department. Claims must be filed within two years of the date of injury, except that in 2020, victims can file claims for injuries that occurred in 2017.

Although these cases cannot be brought in court, expert medical witness testimony and reports will be essential to show whether the applicable duty of care was met and caused the alleged injury. In addition, experts may testify as to the severity of the injury and prognosis of the victim.

The new law may lead to a surge in certain types of claims. For example, an investigation by U.S. News & World Report focused on the  surgical readiness of the U.S. military showing severe shortages of skilled military surgeons. In addition, the report found potential risks to service members because many military surgeons are not performing complex operations often enough to hone their skills. Expert witnesses in General Surgery or other surgical subspecialties (e.g., Vascular Surgery, Trauma Surgery, Endocrine Surgery, Bariatric Surgery, and Colorectal Surgery) can testify regarding the military surgeon’s skill level, treatment decisions, and risks of complications of surgery.

Another likely area of medical malpractice claims may involve missed diagnosis of cancer or other diseases. The drive to change the law was spearheaded by a service member who was not informed of a mass in his lung or referred for treatment. Similar claims of misdiagnosis have been shared in the media. Oncology expert witnesses can provide invaluable testimony regarding the standards of care and issues of causation.

If you need assistance proving or defending a medical malpractice claim involving a military doctor, Elite Medical Experts can assist you in securing nationally recognized university experts for your case. Contact us today for a complimentary consultation.

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