Active Duty Service Members Can Now Claim with the Government for Medical Malpractice

Members of the military have long found it difficult or impossible to hold the government accountable for medical malpractice resulting in personal injury or wrongful death. This is changing, thanks to the National Defense Authorization Act. New rules for handling these cases are available, providing victims and their representatives more options for recovering damages.

Limits on Service Member Claims

Two laws or rules have long limited claims against the government brought by military members and their representatives:

• The Federal Tort Claims Act (FTCA). The FTCA is a law that allows private parties to sue the federal government. It applies to most torts committed by government employees or agencies, but it limits some. This includes many cases involving the military.
• The Feres Doctrine. The limitation on military cases comes from a Supreme Court interpretation of the law from 1950. The Court decision in the case included that the government retains immunity “for injuries to servicemen where injuries arise out of or are in the course of activity incident to service.”

In other words, the law and its interpretation have led to severe limits on service members suing the government for medical malpractice. The Court argued that these suits would interfere with the military’s effectiveness and discipline.

The National Defense Authorization Act

Things finally changed for military members with the NDDA in 2019. This is the law that sets the budget for the military. The version Congress passed in 2019 included a provision allowing for claims beginning in January 2020.

The law doesn’t exactly authorize lawsuits, but it sets out a procedure for service members to seek compensation through the Department of Defense (DoD). It states that the law provides for the Secretary of Defense to:

“allow, settle, and pay a claim against the United States for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a [DoD] health care provider.”

Rules for Personal Injury Claims Posted

Many people in the military, and their families, have been waiting for the final rules allowing them to claim for damages in medical malpractice cases. The Department of Defense finally released the final rule on claims made by service members on June 17, 2021. The DoD published the rules in the Federal Register to take effect July 19.

The rule includes a ban on judicial review of claims; settlements will be final. It also includes some exceptions for things like anything that challenges discretionary agency policies and for combatant activities. In addition, there are stricter requirements for military reservists to file a claim.

Even before the official rules were in place, more than 200 service members had already filed claims amounting to over $2 billion. This indicates how important it is to give men and women in uniform the chance to seek justice and recover damages for negligent medical care. Once the new rules are officially in place, they should get the compensation they deserve.