Military Releases Guidelines on Medical Malpractice Lawsuits

The Feres Doctrine is no longer an obstacle for military members hoping to pursue medical malpractice claims. 

The U.S. Department of Defense released new guidelines on June 17, detailing how troops can now sue the military for medical malpractice. Members of the military had been barred from pursuing medical malpractice claims against the military providers for more than 70 years. 

The Pentagon will pay members or their estates with substantiated claims of less than $100,000 that were filed within two years of an incident. However, the Treasury Department will pay those with claims totaling more than $100,000.

According to Bloomberg, as of April of this year, there were 227 claims totaling $2.16 billion waiting for adjudication.

How long will service members and their families have to file a medical malpractice claim?

This new regulation will come into effect in 30 days. While this includes the two-year statute of limitation that is generally standard, the regulation is retroactive and will allow filing claims from 2017. 

How long have military members been barred from suing for medical malpractice?

Since 1950, military members and their families have been essentially blocked from filing medical malpractice claims. Named for Feres V. United States, the Supreme Court rules that active-duty troops cannot sue the government for personal injuries suffered while in service. 

The Feres Doctrine has survived several legal challenges. In many cases, the Supreme Court declined to hear cases because it considered the Feres Doctrine settled law. 

What was the case behind the Feres Doctrine?

In 1947 at Pine Camp, New York, a barracks fire killed five World War II veterans. Feres V. United States was named after Rudolph Feres whose widow filed a lawsuit against the U.S. Army alleging that it was negligent when it failed to repair a defective heating plant. Additionally, her claim alleged that a fire guard in the area did not maintain adequate fire watch. 

In its opinion, the court concluded: “that the government was not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 

This opinion shaped military life for veterans for more than 70 years. 

What is the 2020 National Defense Authorization Act?

In recent years, opponents of the Feres Doctrine began to realize the best way to sidestep the outdated law was through an act of Congress. Richard Stayskal, a Green Beret who was diagnosed with stage 4 lung cancer after military doctors failed to identify a mass on his lung, filed a lawsuit and eventually helped lobby for the Richard Stayskal Military Medical Accountability Act of 2019. Stayskal’s situation shines a light on the injustice that servicemembers had been dealing with for nearly seven decades. 

The 2020 National Defense Authorization Act did the following: 

• Set policy and spending priorities for the Pentagon
• Ended ban on suing for medical malpractice

We can help

The Carlson Law Firm is a veteran-owned and operated law firm founded just 5 miles from Fort Hood. For more than 40 years we have dedicated our practice to assisting military service members in our community and around the world by providing legal solutions. Our firm handles a variety of claims that pertain to the military community. 

While a medical malpractice claim against the military may seem straightforward, dealing with the military red tape is stressful and not easy. Let our team of legal professionals help you navigate the bureaucracy that comes along with filing a claim like this. Call us at 800-359-5690 for a free consultation. We care. We can help.