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Military Medical Malpractice

A recurring controversy in the military is a legal doctrine – called the “Feres Doctrine” – which forbids any active-duty personnel from filing a medical malpractice case against military doctors. In the past, the United States Supreme Court declined to hear any challenges to the doctrine, but that might change as soon as this week. The Supreme Court decision of whether the Justices will hear a case could come as early as this week.

The Feres Doctrine was created from a consolidation of three cases in the 1950’s that netted the practical effect of barring military personnel from collecting damages for any personal injuries from the United States Government. The Feres Doctrine also prohibits family members of these of service men and women from filing wrongful death or loss of consortium actions when a service member is killed or injured due to medical malpractice. A copy the judicial opinion regarding the case can be found here.

The theory behind the doctrine is that there are other ways military members are compensated for their injuries or death. An example is the Veteran’s Administration. If a military member is injured while serving, they are referred to this organization for medical care and other services.
The case that’s instituting this potential second-look at the long standing doctrine is being brought by the family of an airman in Sacramento. The man, who was diagnosed with acute appendicitis, was left in a persistent vegetative state allegedly due to medical malpractice. The family argues that they should not be denied the ability to bring a medical malpractice action because the man survived the surgery; it was the subsequent breathing complications that arose and ultimately led to his current condition when a nurse negligently put a breathing tube into his trachea instead of his esophagus.

On the other hand, some argue that the cost would be unbearable as an estimated 750 malpractice lawsuits would be filed each year which would cost the federal government as much as $2.7 billion over ten years to defend and litigate. There are also concerns about the distraction this would provide to those actively serving in the military.
A copy of the article regarding this story can be found here.

The defeat, which strengthens a long-standing legal precedent, leaves the field of military medical malpractice unchanged. While active duty personnel can’t file medical malpractice claims against government heath care providers pursuant to the Feres Doctrine, people who are not on active duty and other people treated by govenment helath care providers can file Medical malpractice claims. Those claims are governed by a statute called the Federal Tort Claims Act (FTCA). Pursuant to the FTCA, the United States has six months to investigate your claim after it has been filed. Trial happens before a judge, as opposed to a jury, and the entire burden of proof rests on the plaintiff. Congress limited its coverage under FTCA to the United States and its territories, so any claims which arise out of injuries occurring overseas are not covered. Instead, they are covered by the Military Claims Act (MCA) which has worldwide application. Medical malpractice claims under the MCA are limited to injury or death caused by either military personnel or civilian employees who were acting within the scope of their employment.

After the decision of the Supreme Court earlier this week, it is likely that any change to the Feres Doctrine will have to come from Congress.