New Bill Approved By Congress That Allows Active Duty Military Members To Sue For Medical Malpractice

The below article was written and distributed by the American Association for Justice.

We have big news to report on military malpractice claims for active duty troops. Bi-partisan legislation (S.2451/H.R. 2422, the “Sfc. Richard Stayskal Military Medical Accountability Act of 2019”) has been introduced in the House and Senate that would partially repeal the Feres Doctrine and allow active duty military to sue under the FTCA when they are injured or killed from medical malpractice.

This summer, the bill language was successfully added into the House passed version of the National Defense Authorization Act (NDAA) but was not included in the Senate passed version.  Since that time, the House and Senate have been conferencing and negotiating the differences between the two bills.  As a result of these negotiations, compromise language was included in the final passed NDAA, which just passed Congress last night and is expected to be signed into law by the President.  The compromise language does not overturn Feres, but, for the first time in almost 70 years, would now allow active duty military to seek redress from the Department of Defense (DOD) when they are injured and killed – not from wounds on the battlefield – but when they are medically malpracticed on in military hospitals.

Under this new compromise language, recovery under the Military Claims Act will be expanded to include active duty military with medical malpractice claims from military treatment facilities. More specifically, it would create a new statutory section under the Military Claims Act that allows active duty servicemembers to bring personal injury claims (or their surviving family to bring wrongful death claims) against the DOD for medical malpractice upon the servicemembers by a DoD healthcare employee (uniformed or civilian) acting within the scope of their employment if committed at a military treatment facility (as defined by bill.)

More specifically the bill would do the following:

  • Create an exclusive administrative claims process that will allow active duty military to receive compensation when they are injured and killed from medical malpractice in military treatment facilities.
  • Authorize active duty military to receive uncapped economic and non-economic damages for their injuries resulting from medical malpractice for the first time.
  • Permit active duty military service members to be represented by an attorney.  Attorney’s fees are limited to 20% of the award, which is the same as the FTCA.
  • Give the DOD authority to create policies and procedures for processing the claims and the authority to create uniform standards regarding duty, breach, causation and damages for medical malpractice claims.
  • Create more transparency by requiring the DOD to report to Congress about the number of claims, the resolution of claims, and any other information relevant to the claims process.

This is a significant step forward for servicemembers and their families when compared to the minimal compensation they were able to recover previously. For instance, an active duty servicemember that was injured, but not killed from medical malpractice would receive little more than a disability benefit through the VA program, should the injury from medical malpractice qualify for benefits. If the disability did not qualify, the servicemember would receive nothing. The families of servicemembers that are killed from medical malpractice receive little more than a one-time stipend, and deductible benefits that are paid into by the servicemember and nothing near equivalent to recovery for economic and significantly noneconomic damages, such as pain and suffering, loss of consortium, etc.

In addition, for the first time in almost 70 years there is a recognition by Congress that medical malpractice is a problem at military medical facilities and increased reporting requirements on these new claims will bring more transparency to the state of military healthcare. There is also a recognition that by allowing claims for medical malpractice to proceed under the MCA, even though not the FTCA, the government is conceding that these claims are not “incident to service” and therefore recoverable. This step opens the door on claims, and on the Feres Doctrine by finally questioning the reasoning of claims “incident to service.”

All articles in this blog are the collaborative effort of attorneys Jerry Meyers, Brendan Lupetin, and Gregory Unatin.

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