When a patient is injured by medical malpractice, they can usually file a lawsuit against the doctor or other health care provider who is legally responsible. But this right does not extend to all active members of the military. Spouses and dependents of military personnel may be able to sue a military doctor for injuries caused by medical negligence, but active duty members are typically barred from making a claim for injuries that may have resulted from sub-standard medical treatment at a DOD or VA hospital, or any other military health care facility. Read on to learn more.
Though every case is different and exceptions abound, for the most part the following groups of people can sue military doctors and other federal employees/facilities for injuries and other losses stemming from medical malpractice:
Active duty members of the military are precluded from filing a lawsuit against the military due to the Feres Doctrine (which we'll discuss below). However, a spouse or dependent of an active service member can bring a medical malpractice case against a military doctor or other federal government health care provider. And the active service member may be able to recover his or her own damages for emotional distress or loss of companionship when a family member is harmed by medical malpractice.
Here is a quick summary of a two key laws that come into play when an active military service member (or a dependent of an active service member) is injured by an act of medical negligence at a military or federal government health care facility.
The Feres Doctrine is derived from a 1950 U.S. Supreme Court case called Feres v. United States. Under this controversial doctrine, active military members are barred from suing the federal government for injuries that arise out of their service, even when those injuries are caused by negligence (which includes medical negligence). The doctrine also prohibits the dependents of active duty personnel from filing a wrongful death claim against the federal government even when negligence may have played a role in the service member's death. Injuries to dependents of active service members are not barred by the Feres Doctrine.
The Federal Tort Claims Act is a federal statute that allows the United States government to be held civilly liable for injuries caused by the negligent or wrongful acts of federal government entities and employees. The FTCA includes a complex procedure that requires claimants to jump through a number of hoops and comply with fairly strict deadlines.
Before the injured victim can file a lawsuit, they must first file an administrative claim that includes details about the allegedly negligent acts and a specific dollar demand to cover damages stemming from the medical negligence. The government agency has six months in which to investigate the claim and attempt a settlement. If the victim's claim is denied, they still have the right to file a lawsuit against the government in a federal court.
In general, the FTCA would apply to a medical malpractice claim against a military doctor or a health care facility operated by the U.S. government. But, when it comes to a potential medical malpractice lawsuit by active members of the military, the Feres Doctrine (discussed above) trumps, and active service men and women cannot bring a claim under the FTCA even when they may have suffered an injury due to medical malpractice.