Military Medical Malpractice

You may have heard there is a new law that allows service members to sue the government for negligent treatment.  Unfortunately, that’s not completely true. For nearly 70 years the “Feres doctrine” has blocked service members from suing the government for injuries or death arising from military service.  Military spouses and children have always been eligible to sue the government for wrongful injuries. Likewise, service members have always been able to sue defense contractors for faulty products and negligent actions.

The 2020 National Defense Authorization Act allows, for the first time, service members to seek legal action and receive compensation when they are the victim of medical malpractice in DoD facilities.  Service members harmed by medical malpractice can now file an administrative claim for compensation. For 2020, service members may file claims originating in 2017 or later. Starting next year, claims must be filed within 2 years of the malpractice incident. If the service member dies as a result of the malpractice, the surviving family members may file a claim.  Other types of injuries and wrongful conduct are still barred under Feres.

National Guard service members may only file claims under this new law if in federal status when the malpractice occurs.  So if you are hurt during a drill weekend and treated at a military hospital, any resulting injuries due to malpractice would not be eligible for compensation.  Reservist on the other hand would be covered under this same scenario.

The Department of Defense has established procedures to investigate claims of medical malpractice.  Importantly, the DoD also gets to determine what amount of compensation victims will receive, and the government will not pay attorneys fees.  Attorneys representing service members may only charge a fee up to 20% of any amount paid by the government.

Doug O’Connell is a retired TXARNG Colonel who focuses on representing military service members, veterans, first responders and their family members. Doug@OConnellWest.com