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)
