Many U.S. military members sign up to serve their country without fear because they know that if they are injured, they will have prompt access to some of the best healthcare in the world. However, some servicemembers experience the opposite when they fall victim to medical malpractice. Unfortunately, military doctors are only human and can make dangerous or even deadly mistakes just the same as civilian doctors can.
Previously, U.S. servicemembers could not file personal injury claims against the government for injuries they received in service, but this has changed somewhat. As of July 2021, uniformed service members or their representatives can file claims against the military for medical malpractice.
What the Law Says About Military Medical Malpractice
Until recently, something called the Feres doctrine prevented military families from filing medical malpractice claims on behalf of active-duty soldiers. Based on a decision handed down by the Supreme Court in a 1950 civil lawsuit, the doctrine states that the government is not liable for injuries “incidental to military service.” It was originally intended to prevent a soldier from filing a suit against a General, Colonel, Sergeant or other superior officer for bad decisions they might make relating to your service or combat, but it was eventually extended even to doctors who provided treatment for injuries received because of those bad decisions or accidents.
This was interpreted to also include injuries from military-provided medical care, and many people believe it should not. Injuries while deployed or during training may be “incidental to service” but birth injuries and mismanaged elective surgeries are not, even though that is how they are being legally treated.
After decades of campaigning, families of injured and deceased military members finally managed to overturn the doctrine, at least partially in regard to medical malpractice, in December of 2019 as part of the 2020 National Defense Authorization Act. Medical malpractice claims and medical malpractice-related wrongful death claims began processing in July of 2021.
How Common is Medical Malpractice in the Military?
According to a 2019 U.S. News investigation, U.S. military surgeons perform one surgery to every five that a civilian surgeon does, and often even less. Because military surgeons are sometimes limited in their ability to practice their skills, they might not be able to keep those skills sharp. According to the report, many military surgeons cite that their number one reason for leaving the military is “loss of operative skills” and a fear they won’t be able to maintain their “surgical competence.”
The report also describes a shortage of military surgeons, which includes a shortage of senior surgeons who can guide younger and less experienced surgeons when operating.
Altogether, these factors create a potentially dangerous environment where medical errors can occur. In fact, a 2014 review of the military health system found that just under half (8 out of 17) of the military hospitals surveyed had higher than acceptable rates of surgical complications.
How Do Medical Malpractice Claims Against the Military Work?
Frankly, it’s complicated. Military members and their families can file claims for medical malpractice or wrongful death, but these claims technically aren’t lawsuits since they won’t play out in a federal court. Instead of going through a judge or jury, decisions are to be made by the Defense Department.
Claims must still be made within two years of the injury, and the burden of proof falls on the person filing the claim. There is no discovery process, so victims and their lawyers can’t question the doctor accused of malpractice, but they can use testimony from third-party experts, such as civilian doctors, as evidence in their claims. They can also request their DoD medical records to use as evidence in their claims. Claims can be appealed if they are initially denied, but no new evidence can be provided on appeal.
Compensation may include medical expenses, lost wages and lost earning capacity, and compensation for a caregiver (if necessary). Pain and suffering damages are limited to $500,000. Valid claims for less than $100,000 will be paid out directly by the Pentagon, while claims for over that amount will need to be approved by the Treasury Department. TRICARE benefits and other DoD or Veterans Affairs disability or death benefits may be deducted from any awards from a malpractice claim.
Gary Bruce Stands with Military Families
When U.S. servicemembers put their lives on the line for our freedom, they deserve the best medical treatment. And when they are injured outside of duty, even in non-service-related accidents like car wrecks, they deserve to be compensated for their injuries.
Our firm has served military families stationed at Ft. Benning and around the world for almost 30 years. If you’ve been injured through someone else’s negligence in the course of your military service, contact the Law Offices of Gary Bruce to make sure your rights as a servicemember are protected.
Reach out today for a free case consultation.