For the past 70 years, the short answer to this question has been no. But all of that could change any day now.

What is Congress Doing?

New legislation, which passed through Congress on December 17, 2019, will allow for active duty service members to present a medical malpractice claim against the United States government and receive compensation if they were victims of “negligent or wrongful” medical treatment at a military facility, according to a portion of the NDAA.

What type of case can Service Members bring against the Government?

Under the new law, Military Service Members and their families who have been the victims of medical malpractice will be able to bring an administrative claim against the United States. These claims are for injury or death caused by a federal employee providing medical, dental or health care for the service member.

One big difference remains for active duty service members’ claims: active duty members still cannot file a lawsuit and have a trial in federal court. You can only file an administrative claim. That means you will need a law firm that has a history of negotiating settlements with the Department of Defense administratively to have the best chance at successfully resolving a claim.

Importantly, there is a statute of limitations on your claim. So, you cannot wait forever. Time is of the essence. If you are a service member or their family and believe you have been the victim of military medical malpractice, please call a qualified lawyer as soon as possible.

Our Lawyers Fighting The Feres Doctrine

Historically, the Supreme Court of the United States issued an opinion that’s known as the Feres doctrine. This law prevents active-duty service members from suing the United States for medical malpractice. Feres has been blocking these claims for nearly 70 years, based on a controversial 1950 Supreme Court decision. 

When Congress created the Federal Tort Claims Act (FTCA) to enable people injured by federal government negligence to receive compensation, it waived sovereign immunity for most claims against the United States. In Feres v. United States, the Supreme Court created a judicial exception to the FTCA. The Feres doctrine bars active-duty military personnel from bringing claims against the government for injuries arising out of “activity incident to service.” For years, Feres has drawn widespread disapproval, from Justice Scalia’s vigorous dissent in United States v. Johnson, 481 U.S. 681 (1987), and Justice Thomas’ recent dissent in Lanus v. United States, 133 S. Ct. 2731, 2732 (2013) (Thomas, J. dissenting from denial of certiorari), down to lower courts’ regular calls for this Court to reconsider Feres.

The law firm of Whitehurst, Harkness, Brees, Cheng, Alsaffar, & Jacob PLLC has worked tirelessly to change this law for decades, in the United States Supreme Court, the Circuit Courts of Appeals and before Congress. Attorney Jamal Alsaffar represented the Brown family in the Sixth Circuit Court of Appeals in a Feres case. There, at the district court level, the Government successfully dismissed the child of an active duty soldier from suing for birth injuries caused by medical malpractice.  Thanks to his efforts at the Sixth Circuit Court of Appeals, Alsaffar convinced the Sixth Circuit to reverse the lower court, and the family was able to pursue a lawsuit on behalf of the child against the United States to win a $13 million verdict against the Government.

Then, Laurie Higginbotham, Jamal Alsaffar, and Tom Jacob represented the Witt family in an appeal to the United States’ Supreme Court, arguing that the Court should reverse itself and let active duty service members sue for medical malpractice. Besides our own legal representation, we mounted an amicus brief campaign, finding 8 organizations and 8 lawyers willing to write an amicus brief asking the Supreme Court to take the case. Unfortunately, the Supreme Court declined to grant certiorari.

Next in our battle to overturn Feres, Laurie Higginbotham represented the Oritz family. In that case, the United States argued that the baby of an active duty mother could not sue the Government because of Feres. As before in Witt, attorney Higginbotham worked with a team of lawyers across the country and took the case all the way to the Supreme Court.

Once again, our firm led the amicus brief campaign, and obtained 10 amicus clients and lawyers willing to write on behalf of military mothers, including an amicus written by members of Congress. This time, before the Supreme Court could decide whether to grant or deny certiorari, the United States offered to settle the case for full value and a settlement was reached on behalf of the child before the Supreme Court made a decision.

Where Things Stand – December 2019

Fast forward to 2019, and our law firm has been at the forefront of encouraging members of Congress to pass the Richard Stayskal Medical Accountability Act. We have been working behind the scenes meeting with Congressional staff, drafting amendments to the bill and memorandums and reports, and explaining the need for senators and representatives to pass the amendments to the National Defense Authorization Act (NDAA), which would allow active duty service members to bring a medical malpractice claim against the United States. Laurie Higginbotham was on Capitol Hill in October 2019 meeting with Senate staffers, answering questions about the bill, and fighting for military families.

Now Congress has finally acted. Legislation passed in December 2019 that allows active duty service members to file a claim for medical malpractice against the U.S. There is no cap for how much a service member can be compensated, but without the right to file suit, the reality is that the United States – the defendant wrongdoer – will get to decide what a claim is worth and whether to pay it.

There is no cap for how much a service member can be compensated and the government allotted $400 million over 10 years, Speier said. Family members can file a claim if their loved one has died as a result of the medical malpractice.

This new right to bring a claim is expected to go into effect once it is signed by President Donald Trump, which is expected by the end of December.

This new law will be a historic, dramatic change for active duty military families. Never before have service members been allowed to seek any legal compensation when an active duty service member is the victim of medical malpractice. This new right to bring a claim is still inadequate without the right to file suit in federal court, but it’s certainly better than no relief at all, which has been the case for a generation. Now, for the first time in 70 years, our law firm can tell active duty service members and their families: we can help you recover a settlement. If you or an active duty service member in your family has been a victim of medical malpractice in the last 2 years, call us today.

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