Military Medical Malpractice Patients treated at a military or veterans’ facility have a right to safe, competent medical treatment. When this right is compromised, patients are entitled to file a lawsuit for medical malpractice.[1]
Veterans and others related to military services are agencies of the federal government. Consequently, if a veteran or any military personnel (patient in this case) agonizes from an injury caused by the inattentiveness of a healthcare provider, it is required that they bring forth a suit. Usually, the Defendant in this regard will be the federal government.
A concession of sorts applies to this law that is – that if the practicing doctor is an independent contractor. The doctrine of “sovereign immunity” also known as “Feres Doctrine” typically protects the federal government from lawsuits.[2] The Federal Tort Claims Act (hereinafter referred to as FTCA), nevertheless, operates as an exemption to the sovereign immunity doctrine and permits an individual to make a claim against the federal government for personal injuries.
In the case of Ferez vs the US,[3] stated that “The sovereign immunity doctrine precludes military personnel from making medical malpractice claims for treatment obtained whilst on active duty. However, dependents and family members of active-duty military personnel, such as spouses and other family members, are not prohibited from bringing claims under the FTCA.
Laws[4]
- Subject to various prerequisites and limitations, 10 U.S.C. § 2733a authorizes the Secretary 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.
- Under 28 U.S.C. § 2672, federal agencies have authority to settle certain claims for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment” and pay compensatory damages.
- 10 U.S.C. §§ 1071-1110b—Military Medical Care,
- 10 U.S.C. §§ 1475-1491—Benefits for Deceased Personnel,
- 10 U.S.C. § 2733a—Medical Malpractice Claims by Members of the Uniformed Services,
- 28 U.S.C. §§ 1346(b)(1), 2401(b), 2671-80—Federal Tort Claims Act,
- 38 U.S.C. §§ 1965-1980a—Servicemembers’ Group Life Insurance,
- 28 C.F.R. §§ 14.1-14.11—Administrative Claims Under the Federal Tort Claims Act,
- 32 C.F.R. § 536.80—Payment of costs, settlements, and judgments related to certain medical malpractice claims.
Understanding The Federal Tort Claims Act
The FTCA is a national law that offers the legal system for parties who have endured a personal injury due to the negligent or wrongful action of employees (such as medical practitioners) of the U.S. government (such as medical malpractice). “Often, these claims originate from negligence or wrongful acts in the following categories:
- Property damage
- Property loss
- Personal Injury
- Wrongful Death
In most cases, individuals, veterans, and service members are unable to sue the federal government because of the doctrine of sovereign immunity, which means:
- The U.S. government cannot be sued without its consent.
- The U.S. government has immunity to all civil lawsuits and prosecution unless it waives sovereign immunity.
However, because the Federal Tort Claims Act waives sovereign immunity, individuals can file claims for medical malpractice against the U.S. government for government employees’ negligent or wrongful acts.”[5] One is however entitled to compensation. “The claimant must prove, by a preponderance of 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 manner that proximately caused the harm,”. Further to this, the health care provider is required to exercise for the claimant the same level of skill, care and knowledge — based on national standards, not those of regions, states or localities — that are expected of those in their field in comparable clinical settings, it adds.
When calculating economic damages, the government will consider past medical expenses incurred, along with future medical expenses, lost earnings, loss of earning capacity, and compensation paid for someone to provide essential household services and daily living activities that the service member can no longer provide for him or herself. In addition to this, Non-economic damages also include past and future pain and suffering, physical disfigurement, and loss of enjoyment of life, up to a total cap of $500,000.”[6]
Military Medical Malpractice cases against U.S. government agencies attract complications one didn’t know existed. It is very much important to speak with a military medical malpractice lawyer that can review your case. As each case can be unique and will come with its own complications.
[1] Military Medical Malpractice Law | Justia [2] Ibid (refer footnote 1). [3] Feres v. United States :: 340 U.S. 135 (1950) :: Justia US Supreme Court Center [4] Military Medical Malpractice and the Feres Doctrine (fas.org) [5] What Is Military Medical Malpractice? The Complete Guide [6] Troops Can Finally File Medical Malpractice Claims Against the Military. Here's How | Military.com
