Military Medical Malpractice Guide

When a service member joins the military, he or she does so with the knowledge that – at some point during their duties – they may be required to risk their lives and health on the battlefield. Service members deserve quality medical care at the hundreds of hospitals and military medical treatment facilities (MTFs) worldwide. Unfortunately, some service members and their dependents suffer injuries or die needlessly due to negligent care by military providers.

When civilians experience negligent care that results in injury or death, filing a medical malpractice lawsuit provides some compensation for the injured person and their family. Historically, active duty military personnel were denied the right to bring military medical malpractice claims. Now, laws have changed, allowing active duty service members to bring claims, holding negligent military medical providers responsible for their carelessness.

What Is Military Medical Malpractice?

Medical malpractice occurs when a medical professional fails to perform their duties within the accepted standard of care, causing harm to a patient. In a medical malpractice claim, an injured patient’s attorney must show that:

  • The patient and the medical provider had a relationship in which the provider agreed to give care and was responsible for performing their duties competently (known as duty of care).
  • The medical provider acted negligently or carelessly and did not adhere to the accepted standard of care during diagnosis or treatment.
  • The medical provider’s negligence, more likely than not, caused injury, harm, or death that would not have occurred had they adhered to the standard of care.
  • The injury caused some sort of damages to the patient, such as physical pain, mental trauma, medical expenses, physical impairment, mental impairment, physical disfigurement, and/or lost potential for future income.

Military service members and their families can experience military medical malpractice due to the negligence of personnel at an MTF or a Veterans Administration (VA) hospital in the same manner as civilians. Negligence at the hands of military health providers can involve improper administration of medications, failure to diagnose and treat an illness, failure to provide testing, or failure to treat infections. Unfortunately, in the past, active-duty personnel were prevented from bringing medical malpractice claims under the Federal Tort Claims Act (FTCA) by the Feres Doctrine.

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.” Feres does not apply to civilians, unless their claims are derived from an injury to an active-duty service member.

The 2020 National Defense Authorization Act

As a result of the Feres Doctrine, many military personnel were left without recourse against negligent care by military healthcare professionals. Fortunately, in December of 2019, lawmakers signed the Richard Stayskal Military Medical Accountability Act into law with the 2020 National Defense Authorization Act. For the first time in over sixty years, Congress expressly authorized active duty service members to bring an administrative claim and receive compensation for damages arising out of medical negligence.

Active duty military personnel are now able to pursue military medical malpractice claims under the Military Claims Act. While service members still cannot file a lawsuit in federal court for the damages, the Richard Stayskal Military Medical Accountability Act is a first step towards providing compensation to injured service members and holding negligent military healthcare professionals accountable.

What Is the Richard Stayskal Military Medical Accountability Act?

This push to address the inadequacies of the FTCA was inspired by a soldier – Army Sergeant First Class Richard Stayskal. After receiving a bullet wound to the chest while deployed to Iraq in 2004, Stayskal’s physicians noticed a mass in his lung. Between 2004 and 2017, Stayskal was repeatedly told he had asthma by military physicians. After an ER visit on Fort Bragg, a military pulmonologist diagnosed him with pneumonia.

It wasn’t until months later – after SFC Stayskal was finally granted permission to see a civilian specialist – that he finally received his first accurate diagnosis, Stage III Lung Cancer; however, due to the Feres Doctrine, SFC Stayskal wasn’t able to sue for medical malpractice although his condition was greatly worsened by government negligence. As a response, California Congresswoman Jackie Speier introduced the SFC Richard Stayskal Military Medical Accountability Act of 2019 to allow military members to file medical malpractice suits against the military. The Act was incorporated into the 2020 NDAA and effectively led the charge for service member rights after experiencing negligence.

Limitations on Claims

The Richard Stayskal Military Medical Accountability Act has removed the ban on compensation for medical malpractice under the 70-year old Feres Doctrine ban imposed by the Supreme Court. This Act allows military personnel to bring a medical malpractice administrative claim within two years of receiving negligent health care. Under the new law, the ability to bring a claim is retroactive to negligence taking place from 2017 to the present.  However, it did not completely overturn the Feres Doctrine.

Limitations remain in place after the NDAA went into effect in January 2020 and continue to prevent some service members from filing lawsuits against federal government entities. Limitations include:

  • Service members are limited to bringing an administrative claim; they still may not file a lawsuit in federal court for medical malpractice.
  • Service members may not bring a claim for injuries sustained in combat zones. The NDAA still does not allow military personnel injured in combat to file claims for negligent treatment received in a combat zone. For example, even such gross negligence as a medical tool left inside a patient’s body during a surgery at an MTF within a combat zone would not be a viable medical malpractice claim.
  • Other types of personal injury claims are still Feres-barred.

Although many limitations remain in place, the 2020 NDAA was an important step towards restoring active duty military rights to sue for malpractice. Now, many military professionals, or families acting in their stead, have the means to seek compensation for injuries received due to the negligence of military medical personnel. Government medical providers receive the same medical education as any other physician, and should be held to the same standard of care, and if their negligence causes injuries, damages, or death, patients deserve compensation for their injuries.

How We Help Active Duty Service Members and Veterans

The United States healthcare system and the United States legal system are complex, and pursuing a medical malpractice claim is both costly and complicated for a law firm. Fortunately, the team at Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham, and Jacob, PLLC includes a nationally recognized team of attorneys with deep insight into the medical field, as well as two former Judge Advocate General (JAG) officers. Our lawyers work closely with a team of medical experts, including physicians and nurses, to assist service members and their families that have experienced medical negligence. If you or a loved one have suffered due to negligent military health care, contact us today; a military medical malpractice attorney will review your case and evaluate your claim.

Can you sue the military?2020-08-31T15:00:43-05:00

If the victim of medical malpractice is a civilian dependent or veteran, the injured patient and their family must first present an administrative claim for their injuries. If the administrative claim is not settled, then claimants may opt to sue the government in federal court under the Federal Tort Claims Act. If the victim of medical malpractice is an active duty service member, the only remedy is to bring an administrative claim under the Military Claims Act.

Can you sue the VA hospital?2020-08-31T14:57:17-05:00

Veterans can bring administrative claims and sue the VA hospital for military medical malpractice under the FTCA. Active duty military utilizing a VA hospital due to a sharing agreement or emergency situation can bring an administrative claim against the VA under the Military Claims Act.

What is Federal Tort Claims Act medical malpractice?2020-08-31T14:56:48-05:00

The FTCA is a federal law that allows plaintiffs injured by the negligent acts of federal employees to present claims against the United States for damages. FTCA coverage extends far beyond traditional VA and military base health care. Medical malpractice resulting from care provided by Indian Health Services on an Indian reservation is also covered under the FTCA. Congress further extended FTCA medical malpractice coverage to include federally funded clinics. The federally funded clinics must apply in order to be “deemed” a FTCA covered center, and the application must be renewed from year to year, so coverage can change. Federally funded clinics that may apply for FTCA coverage include all clinics funded under Section 330 of the Public Health Service Act, including Community Health Centers, Migrant Health Centers, Health Care for the Homeless Centers, and Public Housing Primary Care Centers. In 2004, Congress extended FTCA coverage again to volunteer health professionals at certain free clinics.

How far back can I file a military medical malpractice claim?2020-08-31T14:55:50-05:00

Under the NDAA of 2020 and its statute of limitations, victims or their families have two years from the date of injury to file a claim. Those filing claims in 2020 may claim injuries from 2017 or later, but incidents occurring before 2017 are time-barred.

Can Military Members Sue for Military Medical Malpractice?2020-08-31T14:54:52-05:00

Active duty military members are not permitted to file a lawsuit in court, but with the passage of the Richard Stayskal Military Medical Accountability Act, active duty military can now bring administrative claims against the military for medical malpractice as long as the health care did not occur in a combat zone.


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