We often get asked the question whether an active-duty military service member can sue the United States. The short answer to this question is that it depends on the claim your bringing. The general rule is that under Feres v United States, a service member may not recover under the Federal Tort Claims Act (FTCA) for claims which arise out of or in the course of activity incident to their service. Courts often refer to this as the Feres Doctrine. Whether your claim falls within the scope of Feres is a complicated legal question that usually requires the assistance of a lawyer. There is no clear cut answer on when a serviceman’s death, injury, or loss is “incident to service.” The words incident to service appear no where in the Federal Tort Claims Act, but have been interpreted into the FTCA by the United States Supreme Court.
Does the Feres Doctrine Apply to You?
The scope of this question is very broad. To truly answer this question, you need to contact a lawyer and tell him or her the specific facts of your case. However, this article discusses some important legal updates and answers general questions about who can bring claims and file suit against the government. The answer depends on how you were injured and the circumstances of what happened.
At the end of 2019 the law is about to change dramatically, and for the first time in 70 years, active duty service members will be able to bring medical malpractice administrative claims against the government. But the Feres doctrine still bars active duty service members from suing for other types of injuries incident to service – like car accidents, recreation accidents, and other types of torts if they were incident to service. This area of law is complex and it’s best to speak to an experienced law firm familiar with the ins and outs of Feres.
Can Active Duty Service Members Bring Claims for Medical Malpractice?
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 About Medical Malpractice?
New legislation, passed by the House of Representatives and currently pending in the Senate, has made it into the National Defense Authorization Act (NDAA), and will allow for active duty service members to present a claim against the United States 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, 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.
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 service members to bring a 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 it appears Congress is ready to act. The House of Representatives passed the Richard Stayskal Medical Accountability Act, and it is now pending in the Senate. New language, which was agreed upon by Congress and which made it into the National Defense Authorization Act (NDAA), will allow active duty 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. This is a game-changer for active duty service members who have been injured by medical malpractice.
Feres does not apply if you are suing for another’s injuries. For example, we often take and are successful in taking injuries due to medical negligence at birth or delivery of a baby. Many times, the mother, father, or both are active duty. Our active duty moms and dads sue for injuries that arise out of the baby’s original injury. For example, in many cases, the medical negligence on the baby will cause loss of consortium, incur attendant costs of care, and other damages. These types of cases can be brought against the government. If you have a case like this, contact us so that we can analyze the specific facts of the case and give you a better idea whether you may bring suit on behalf of your child for obstetrical or other negligence arising out of the labor and deliver.
Of course, if you are a veteran injured at a VA hospital, you have always had the right to sue the United States for military medical malpractice for care that you received as a veteran. If you have any questions or feel you have a case against the federal government, please contact a lawyer.