Medical Malpractice in the Military

The National Defense Authorization Act (NDAA)

In December 2019, President Donald Trump signed into law the “2020 National Defense Authorization Act.” This legislature overturned prior restrictions involving medical malpractice cases and litigation within the US military. The Act included provisions from a bill introduced earlier that year -  the SFC Richard Stayskal Medical Accountability Act. The President’s new legislature allows troops or their surviving family members to file claims for personal injury or death caused by negligence or wrongful acts by a Department of Defense-employed healthcare provider in a military hospital or clinic. Unfortunately, this legislation does not address military medical malpractice claims prior to 2017.

Prior to the NDAA, the Supreme Court ruled in 1950 that active duty military personnel could not hold the federal government liable for personal injuries that they suffered during their service. 

You may now bring a medical malpractice claim if you suffer from an injury or illness caused by the negligence of a healthcare provider. However, there are still significant limitations to when and where a military medical malpractice claim can be filed. Those limitations include the following: 

  • The new legislation does not permit service members to file claims for personal injuries caused by medical malpractice in combat zones.

  • Service members will not be able to sue in federal court. Instead, their claims will be handled administratively. For example, the Department of Defense will pay proven claims under $100,000 directly to the service member or a surviving beneficiary. On the other hand, claims that exceed $100,000 will be reviewed and paid out by the Secretary of Defense. 

Some examples of military medical malpractice

Veterans Health Administration (VA) hospital medical malpractice includes, but is not limited to the following:

  • Anesthesia errors

  • Misdiagnosis

  • Delay in diagnosis

  • Undiagnosed condition that may have resulted in death or loss of quality of life

  • Delay in treatment

  • Emergency room errors

  • Negligence during surgery

  • Planned C-section early delivery because of due date  miscalculation

  • Prescription negligence in psychiatric patients

Federal Tort Claims Act (FTCA) of 1950

VA's hospitals and other military facilities are agencies of the federal government. Therefore, when treatment in such a facility results in a medical malpractice claim, you, as the plaintiff, are suing the federal government. An exception to this rule exists only if the offending healthcare provider is an independent contractor. The doctrine of "sovereign immunity" typically protects the federal government from lawsuits. The FTCA, however, serves as an exception to the sovereign immunity doctrine and allows an individual to bring a claim against the federal government for personal injuries. Under the FTCA, the federal government acts as a self-insurer, and recognizes liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. So, in this case, the United States is just as liable as an individual practitioner would be under similar circumstances.

Who does the FTCA apply to?

The FTCA applies to all non-active military personnel who have received substandard medical care from military facilities located within the United States. The "Feres Doctrine" prevents military personnel from bringing medical malpractice claims for treatment received while on active duty. Dependents of active duty military personnel, such as spouses and children, however, are fully entitled to file claims under the FTCA.

The FTCA's "foreign country" exclusion prevents military personnel from bringing medical malpractice claims for injuries suffered in hospitals outside the United States. This exclusion applies even if the medical care was administered on a U.S. military base. Those who have suffered from military medical malpractice outside the U.S. may file a lawsuit pursuant to the Military Claims Act. Similar procedures are followed when suing under both the MCA and the FTCA. However, if a claim is denied under the MCA, an individual does not have a right to sue the federal government. Citizens and inhabitants of the United States may file a Military Claims Act claims for injuries caused by a negligent or wrongful act or omission of a U.S. Armed Forces civilian personnel or military service member. If you are eligible to bring a claim under another statute, you may be excluded from filing under the MCA.

Military Medical Malpractice Statute of Limitations

The statute of limitations for bringing a medical malpractice claim under the FTCA is two years from the time you learn of the existence and cause of the injury. The medical facility involved in the claim has six months to review the claim and decide how to proceed. The facility may decide to pay the claim in full, settle the claim for less than the requested amount, or reject the claim. Failure to respond to the claim within the six-month period is construed as a rejection.

If the agency rejects the claim, the FTCA requires you to file a lawsuit in federal court within six months. You have no right to a jury trial under the FTCA. Thus, a judge will determine whether and to what extent the federal government will be liable for your claimed injuries.