Posted on 05/26/2021

How do I sue a military hospital for medical malpractice?

How do I sue a military hospital for medical malpractice?

For more than 70 years, military personnel, including active, reserved, retired service members, veterans, and military families, have been unable to seek legal recourse against military medical facilities or medical care providers for injuries sustained due to medical malpractice.

This was because of the “Feres Doctrine,” a legal precedent based on a 1950 Supreme Court decision stating active-duty service members could not bring malpractice suits against military healthcare providers or the U.S. government.

Limitations introduced by the Feres Doctrine prevented service members from pursuing claims until last year when the National Defense Authorization Act was enacted. Today, service members who have suffered medical malpractice at the hands of negligent health care providers have a path forward.

What is Military Medical Malpractice?

Military medical malpractice occurs when the doctors, nurses, health care technicians, and other military medical professionals fail to meet their legally imposed duty to provide appropriate medical care and treatment. Military medical malpractice can occur when a military health care provider makes a mistake diagnosing, managing, or treating your medical condition.

Common examples of military medical malpractice can include:

  • Inaccurate diagnosis of medical condition 
  • Delayed diagnosis for your medical condition 
  • Failure to properly treat your medical condition
  • Errors or mistakes during a surgical procedure
  • Birth injuries (including those before and shortly following childbirth)
  • Brain or head injury
  • Spinal cord injury or paralysis
  • Wrongful death
  • Surgical error or wrong-site surgery
  • Improperly sterilized equipment, avoidable infection, or incorrect incisions
  • Damage to organs, muscle, tissue, ligament, or nerves
  • Anesthesia errors
  • Quadriplegia or paraplegia

Despite relating to different procedures, these circumstances all share one major commonality: they all have the potential to result in unnecessary pain and suffering, delayed treatment, or being prescribed incorrect treatment. And although this list is by no means exhaustive, it does give you an idea of the type of situations where military medical malpractice can occur.  

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What is the difference between medical malpractice and military medical malpractice?

The key difference between military medical malpractice and traditional medical malpractice is where the malpractice occurred or the healthcare provider who performed the medical error. 

Medical malpractice that occurs in a civilian, non-military hospital or healthcare facility or by non-military approved healthcare providers is considered "medical malpractice." 

Medical malpractice that takes place in a military hospital or healthcare facility or by military-approved healthcare providers is considered "Military Medical Malpractice."

Who can experience military medical malpractice?

Any military service member, including active duty, reserved, retired service members, veterans, and their families, can experience military medical malpractice if they suffered inferior medical care from a Department of Defense-approved healthcare facility or healthcare provider.

Can You Sue a Military Hospital for Military Medical Malpractice?

The Feres Doctrine can impose certain limitations on military medical malpractice claims for active duty service members. But as of December 20, 2020, the National Defense Authorization Act provides active duty service members the opportunity to present a claim and seek medical malpractice compensation when suing a military hospital, facility, or medical professionals beyond two foundational areas of limitation:

  • Claims for military medical malpractice can not be for injuries or illnesses that occurred in a combat zone 
  • Claims must be adjudicated within the administrative process, not federal court

In addition to the Feres Doctrine, lawsuits against military healthcare providers fall under the Federal Tort Claims Act's guidance. This federal statute allows the United States government to be held civilly liable for injuries caused by federal government entities and employees' negligent or wrongful acts. The FTCA filing procedure is complex with multiple strict deadlines.

How to File a Military Malpractice Claim

The Pentagon has developed a process for each respective military branch that must be followed before sending military medical malpractice claims to the Secretary of Defense's office. 

Service members, including surviving family members, must bring their military medical malpractice claims before the Department of Defense by a legal representative, attorney, or another service member. 

The military malpractice must have occurred at a military healthcare facility or by an approved Department of Defense healthcare provider.

Claims are to be submitted according to your military branch.

Army

Submit claims to the Office of the Staff Judge Advocate, the Center Judge Advocate of the Medical Center involved, or U.S. Army Claims Service.

Navy and Marine Corps

Legal counsel and services (including forms to submit a claim) are offered through the Judicial Advocate's General Corps (JAG).

Mail claims to:

The Office of the Judge Advocate General, Tort Claims Unit

9620 Maryland Avenue, Suite 205, Norfolk, Virginia 23511-2949

Air Force

Submit claims to the Office of the Staff Judge Advocate in person at the nearest Air Force Base or by mail to:

POC: Medical Law Branch, AFLOA/JACC 240-612-4620 or DSN 612-4620

AFLOA/JACC, 1500 W. Perimeter Road, Suite 1700, Joint Base Andrews, MD 20762

An attorney can assist you with filing a military medical malpractice claim to ensure it reaches the right branch.

Once received by the Department of Defense, the Secretary of Defense will review your case and assess whether your claim is valid. If your claim is deemed valid with damages assessed at or below $100,000, your claim will be approved.

If your claim for damages exceeds $100,000, your claim may still be approved, but damages over $100,000 require separate submission to and final approval from the U.S. Secretary of the Treasury.

I think I've experienced military medical malpractice. What should I do next?

If you or a family member have received substandard medical care from a military hospital or healthcare facility that has resulted in injury and/or damages, including financial, and you are a military service member or veteran, you may have experienced military medical malpractice. 

At Grover Lewis Johnson, our Medical Malpractice Team is built on 25 years of medical malpractice experience and a single, focused mission rooted in compassion. Because we are genuinely concerned for our client's best interests, we carefully select our cases to help ensure we not only meet your expectations but exceed them.

Call us today, connect with one of our medical malpractice team members, and schedule a free consultation to review your situation. We'll go through all the information and help you decide what's best for your situation, whether that's reaching a settlement or taking your case to trial.