In July 2021, military personnel and their families gained the right to sue the military for medical malpractice.
The official rules of the new regulation will be published by The Department of Defense (DoD) before the end of August 2021 and are expected to detail the method uniformed service members can use to file a medical malpractice claim against the military.
The new regulation is a big step for service members and their families hoping to seek compensation for malpractice experienced in the military.
For more than seven decades, the “Feres Doctrine,” which states that active-duty military personnel can not sue military healthcare providers or the U.S. government for medical malpractice, made military medical malpractice claims virtually non-existent.
The National Defense Authorization Act, signed into effect in December 2020, provided military personnel and their representatives a path forward to seek compensation for medical malpractice suffered at the hands of negligent health care providers.
What is Military Medical Malpractice?
Military medical malpractice is identical to standard medical malpractice except that it occurs when medical health care providers fail to meet the standard of care within a military medical environment.
Military medical malpractice can happen at any stage of medical care. Examples include:
- Delayed or misdiagnosis of your medical condition
- Failure to treat your medical condition in a proper manner
- Surgery errors
- Birth injuries to mother or child, before, during, or shortly after childbirth
- Head or brain injury
- Paralysis, including quadriplegia, or paraplegia or other spinal cord injuries
- Avoidable infections from improperly sterilized equipment
- Organ, tissue, muscle, ligament, or nerve damage
- Anesthesia errors, including anesthesia awareness (waking up during surgery)
- Incorrectly interpreted lab results
- Wrong medication or dosage
- Not ordering the necessary testing based on a patient's symptoms
- Performing surgery on the wrong part of a patient's body or the wrong patient
- Leaving something inside a patient, such as a surgical instrument or sponge, inside a patient's body
What is the difference between medical malpractice and military medical malpractice?
The only difference between regular malpractice and military medical malpractice is the location, where the malpractice happens, and the individual responsible for medical negligence.
- Medical malpractice: takes place in a regular, non-military hospital or healthcare facility or by a non-military medical professional
- Military medical malpractice: takes place in a military hospital or a military-approved medical facility or when a military medical doctor's negligence causes pain and suffering.
All medical malpractice cases require the following points to be met:
- The doctor and patient must have an official, existing doctor-patient relationship.
- The doctor's action (or inaction) must be negligent or result in negligence.
- The patient must have experienced harm due to the doctor's negligence, and it must have caused actual damages, including financial damages.
How To Sue For Military Medical Malpractice
Under the new regulations, military service personnel can sue for military medical malpractice for any injuries that were "incident to service."
This can mean "almost any injury or illness" resulting from treatment administered at a military medical care treatment facility or a DoD-approved health care provider would qualify for most active-duty service members.
Reservists must meet stricter requirements and can only sue for military medical malpractice in connection with personal injury or death while on federal duty status.
The new claims process is designed to be a final attempt at compensation for injuries experienced, stating claims are only playable if the plaintiff cannot resolve the complaint under any other law.
The Defense Department advises it will directly pay claims for less than $100,000 to military service members or their estates. However, medical malpractice claims in excess of $100,000 require the Treasury Department review. These claims will also be paid out by the Treasury Department, not the Department of Defense.
Malpractice claims must be filed directly with each military service member's branch.
Claims are to be submitted to the Office of the Staff Judge Advocate, U.S. Army Claims Service, or the Center Judge Advocate of the Medical Center involved.
Claims are to be submitted to the Judicial Advocate's General Corps (JAG). Claims can be mailed to The Office of the Judge Advocate General, Tort Claims Unit,9620 Maryland Avenue, Suite 205, Norfolk, Virginia 23511-2949
Service members serving with the Air Force can submit claims in person at the nearest office of the Staff Judge Advocate or by mail to: POC: Medical Law Branch, AFLOA/JACC 240-612-4620 or DSN 612-4620. AFLOAT/JACC, 1500 W. Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762
As with the Navy, Marine Corps service members should submit their claims to Judicial Advocate's General Corps (JAG). Claims can be mailed to The Office of the Judge Advocate General, Tort Claims Unit,9620 Maryland Avenue, Suite 205, Norfolk, Virginia 23511-2949
The new regulation comes with a strict filing deadline. To be eligible, service members must file their claim to the Department of Defense within two years of the date of the alleged malpractice.
Work with an Experienced Medical Malpractice Team
If you are a military service member or veteran who believes you've received substandard medical care at a military hospital or Department of Defence-approved health care provider, and you experienced injury and/or damages, you may be able to sue for military medical malpractice.
At Grover Lewis Johnson, our Medical Malpractice team is available to help you get the compensation you deserve.
We built our practice on more than two decades of medical malpractice experience and expertise and a single, focused mission rooted in compassion for our clients. We are genuinely concerned for your situation, that's why we select our cases carefully. We make sure we not only meet your expectations but exceed them. Call us today to schedule your no-cost, no-obligation consultation and review your situation. One of our medical malpractice experts will go through all your information and work with you to decide what the best course of action is for you.