Like all medical treatment providers, military providers make mistakes (AKA Military Medical Malpractice). Whether through lack of training, competence, or judgment, errors are made and often result in significant harm to the patient. Where their civilian counterparts can bring lawsuits for compensation to cover the costs of those mistakes or even to just hold the negligent provider accountable, military servicemembers may not.
Due to what many consider an archaic legal ruling, known as the Feres Doctrine, active duty military members are prohibited from suing their negligent medical treatment providers, even when that provider’s negligence unmistakably resulted in extreme harm or even death. Frustrated by stories of these occasions, Congress recently passed a law permitting active duty members to file a claim for this negligence. The member doesn’t “sue” the military medical provider, they file a claim. The claim process is nonadversarial, which means there are no court hearings, no depositions, and no cross examinations. While the subject matter is much more serious, the process is akin to filing a claim for damage to your household goods.
Active duty members who feel they have been the victim of medical malpractice file a claim on SF-95 in which they provide the facts and discuss why they feel the military medical provider was negligent and what harm that negligence caused the servicemember. The DoD then sends the claim to non-DoD medical professionals who evaluate the claim and determine if the military medical practitioner was negligent. If these professionals agree that negligence caused harm, the claim is then evaluated for damages. If the claim is denied, the claimant can appeal. If it is granted, the DoD can pay a monetary claim for damages.
There are deficiencies in this process, to be sure, the biggest being that non-economic damages are capped at $600,000 and punitive damages (intended to “punish” the negligent provider or system that allowed him or her to practice negligently) are not available. Recent reports also indicate that they system is slow to decide claims, some cases lingering even after a year or more. Unfortunately, for victims of medical malpractice, time is critical.
But it’s a start. At King Military Law, we share the frustration over limiting the rights of those who serve and join the chorus of calls that the Feres Doctrine be modified to at least exclude medical malpractice from its prohibitions.
Until that day, if you or a loved one are impacted by military medical malpractice, please reach out to an experienced military attorney to help you seek the voice—and remedy—you deserve.
King Military Law
~~Where Experience Matters Most~~