Medical Malpractice in the Military: Can Service Members Sue?

military medical malpractice

At Phelan Petty, we have the utmost respect for our country’s service members. Unfortunately, when the unthinkable happens and they’re injured by another government employee, they cannot file a lawsuit and demand compensation. This includes active service members who fall victim to medical malpractice at a military hospital.

A controversial rule called the Feres doctrine prevents certain service members from suing the government. Victims and advocates have made numerous efforts to overturn the doctrine, but so far, very little ground has been gained.

Keep reading to learn more about the doctrine, recent efforts against the legislation, and what rights and options military members retain.

The Feres Doctrine and Military Medical Malpractice

The Feres doctrine is named after the Supreme Court decision that introduced the controversial rule. It bars any active service member from filing a claim against a military organization, facility, or any other facet of the government. Although we will focus on medical malpractice scenarios in this article, the doctrine also applies to training or workplace accidents and even sexual assault cases.

Applying Feres to Medical Malpractice Claims

Many of the medical providers at military hospitals, like Kenner Army Health Clinic in Fort Lee and McDonald Army Health Center in Fort Eustis, are service members and civilian employees of the Armed Forces. Since the Feres doctrine states that active military members cannot sue the government, they cannot file a medical malpractice suit involving these military medical centers or military physicians.

RELATED: Do You Think You Experienced Medical Malpractice? Look Out For These 5 Red Flags

Proponents of Feres argue that the doctrine protects medical personnel from being held responsible for reasonable mistakes made under pressure in combat zones. However, courts have consistently applied the Feres doctrine to most cases involving active service members and the government, regardless of the circumstances.

Feres Does Not Apply to All Military Medical Malpractice Cases

While many courts have broadly interpreted Feres, there are some exceptions to the rule. Before you give up on your military malpractice claim, it’s always best to consult with an experienced lawyer.

Civilians Injured at Military Hospitals

The Feres doctrine only bars active military service members from suing the government. Under the Federal Tort Claims Act, civilians have the legal right to bring claims against the U.S. Government, and they may allege medical malpractice against a military organization.

Therefore, retired service members and veterans can file claims when they’re injured by negligent military and VA doctors. Similarly, if the spouse or dependent of an active service member suffers from medical malpractice while being treated at a military hospital (living on base, for instance), they also may sue the government.

RELATED: Government Watchdog Says VA Fails to Report Dangerous Doctors

The Medical Provider Is an Independent Contractor

The Feres doctrine only applies to negligence committed by other service members and civilian government employees. While independent contractors have tried to expand Feres to cover their negligence, the courts have generally rejected these arguments.

Therefore, if the negligent doctor, nurse, or medical provider is not a government employee, an active service member may be entitled to compensation for their injuries.

The Stayskal Bill: Proposed Exceptions for Military Medical Malpractice Cases

Army Sgt. Richard Stayskal served our country for years. During his time in the army, military doctors noted but failed to treat a tumor growing in Stayskal’s lung, leading to terminal cancer. According to Stayskal, while he is unable to continue serving in his previous capacity, he is not done serving his country. Today, he is a vocal opponent of the Feres doctrine.

Now, a series of bills bearing his name are working their way through U.S. Congress. If passed, the SFC Richard Stayskal Military Medical Accountability Act of 2019 would allow active service members to sue the government for medical negligence that occurs outside of a combat zone.

At Phelan Petty, we are carefully monitoring the bills’ progression through the House and Senate. If you want to help, contact your federal representatives and voice your support for the SFC Richard Stayskal Military Medical Accountability Act of 2019.

Alternative Recovery Options for Military Service Members

Unfortunately, if you or a loved one have been injured during active duty by a military doctor, the Feres doctrine may bar you from filing a civil lawsuit. However, the Armed Forces do offer other benefits that may help you offset your damages, including:

  • Servicemembers Group Life Insurance (SGLI)
  • Death gratuities
  • Disability compensation
  • Free health care while active
  • Free or low-cost health care after discharge

Additionally, the U.S. Department of Veteran Affairs provides a detailed list of service member benefits and options for both active and retired members.

Phelan Petty | Fighting for All Who Fight for Our Country

At Phelan Petty, we believe that our justice system should protect the rights of our service members. If you have questions about a medical malpractice case that involves a government entity, contact the experienced medical malpractice attorneys at Phelan Petty. Our team can help you understand the rights and legal options available to you and your loved ones.

Call us today at 804-980-7100 or complete our online contact form to schedule your free consultation.

References

Albert, V. (13 August, 2019). Soldier with cancer fights to change law shielding military from malpractice suits. CBS News. Retrieved from https://www.cbsnews.com/news/feres-doctrine-active-duty-service-members-cant-sue-for-medical-malpractice-that-could-be-about-to-change/

Chu, V., & Manuel, K. (2011, April 7). Tort suits against federal contractors: An overview of the legal issues. Congressional Research Service. Retrieved from https://fas.org/sgp/crs/misc/R41755.pdf

Feres v. U.S. 340 U.S. 135 (1950). Retrieved from http://cdn.loc.gov/service/ll/usrep/usrep340/usrep340135/usrep340135.pdf

Mendez, B., & Lewis, K. (2019, February 11). Military medical malpractice and the Feres doctrine. Congressional Research Service. Retrieved from https://fas.org/sgp/crs/misc/IF11102.pdf

US SB2451| 2019-2020| 116th Congress. (n.d.) Legiscan. Retrieved from https://legiscan.com/US/bill/SB2451/2019

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.