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Since 1950 military personnel have been barred from seeking compensation for injuries sustained due to medical malpractice since the United States Supreme Court issued its landmark decision in Feres v. United States[1] and created what has been known as the Feres Doctrine. Thanks to a new law passed by Congress, service members or their representatives can now file claims for personal injury or death caused by a military health care provider in certain medical facilities beginning on July 19, 2021.

The new claims process is in addition to the compensation provided under the military’s compensation system, which also covers combat injuries, training mishaps, motor vehicle accidents, or other deaths or disabilities in the line of duty, according to the Federal Register notice. Further, this new claim process is a last resort for those who have suffered malpractice and claims are payable only if they can’t be settled or paid under any other law.

The new rules set a strict deadline to make a claim. Service members must present their claim to the Department of Defense (DoD) within two years of when the alleged malpractice occurred.

To be considered, medical malpractice claims must be for injuries that were “incident to service.” For active-duty service members, this requires a showing that the injury or illness was caused by the medical care received at a military treatment facility from a Department of Defense health care provider. For reservists, the rules are a little stricter and require that the injury or death occurred while the member was in a federal duty status.

To receive compensation, a claimant must prove, by a preponderance of the evidence that the military health care provider on duty “had a professional duty to the patient involved and by act or omission breached that duty in a manger that proximately caused the harm.”

Whether a claimant receives compensation will be determined by the DoD and not through a jury trial like traditional lawsuit. Unlike traditional lawsuits, there no discovery process. Consequently, it is critical to submit proper supporting documentation with a claim, including an affidavit from a physician who has reviewed pertinent records and in his or her opinion there is merit to the claim.

Given the procedural obstacles and complex nature of medical malpractice claims, an experienced medical malpractice attorney will provide service members with the best chance of receiving compensation. If you or a loved one may have been injured as a result of medical malpractice by a military health care provider, contact the Grewal Law team for a free consultation.

[1] Feres v. United States, 340 U.S. 135 (1950)

One Comment

  1. Gravatar for Jeffrey Ziegler
    Jeffrey Ziegler

    Every time I see a post on the Feres Doctrine, it makes the hairs on the back of my neck stand up. I should know because I have been down that same road too already. I even went to federal court in attempt to defend my case. Be aware that Feres also protects the US military from legal malpractice by its own incompetent - and many times unethical - military lawyers.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.

    When I asked the top lawyer (then Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar. Lying to your licensing state bar is grounds for permanent disbarment. The state bar clearly acknowledged that the US Army lawyers were wrongfully "protecting" Fitzgerald and if they were not, the state bar would take action.

    I then sued in federal court. It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. In fact, I was never even able to get into court and present my case. The judge simply had his law clerks cut-and-paste a previous reply to a previous case. Just to add insult to my financial injury, Fitzgerald since got promoted TWICE as an Army lawyer. Feres was NEVER designed 60 years ago as this kind of "protection." Today it protects against everything to include corruption, misdeeds, and even cover-ups by US Army lawyers wearing stars on their shoulders.

    Fitzgerald became a prosecutor and sent people to Fort Leavenworth prison for violations LESS than what he is clearly guilty. Lying to the feds is a crime punishable by prison. You don't believe that? Look at what happened with what Robert Mueller has done in 2018 and 2019.

    Go to the link and you will see it all. Thank you.

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