A Win for Military Members, But Feres Doctrine Still Deserves Full Overturn
Typically, it has been too late for injured military members and their families to find out they can’t hold the Department of Defense (DoD) accountable if they became injured or permanently disabled under the Feres Doctrine. But things are changing. In December, Congress partially overturned Feres, an outdated law which prohibits troops from filing negligence lawsuits against the military. The lawmakers voted on a defense authorization bill that allows victims to file claims in cases of medical malpractice stemming from care received in military hospitals for the first time in nearly 70 years, but unfortunately, still not in other circumstances related to military negligence.
Under this new compromise language, recovery under the Military Claims Act will be expanded to include active duty military with medical malpractice claims from military treatment facilities. More specifically, the American Association for Justice says the bill would do the following:
- Create a new statutory section under the Military Claims Act.
- Allow active duty service members to bring personal injury claims (or their surviving family to bring wrongful death claims) against the DoD for medical malpractice upon the servicemembers by a DoD healthcare employee (uniformed or civilian) acting within the scope of their employment if committed at a military treatment facility.
- Create an exclusive administrative claims process that will allow active duty military to receive compensation when they are injured and killed from medical malpractice in military treatment facilities.
- Authorize active duty military to receive uncapped economic and non-economic damages for their injuries resulting from medical malpractice for the first time.
- Permit active duty military service members to be represented by an attorney.
- Give the DoD authority to create policies and procedures for processing the claims and the power to create uniform standards regarding duty, breach, causation and damages for medical malpractice claims.
- Create more transparency by requiring the DoD to report to Congress about the number of claims, the resolution of claims, and any other information relevant to the claims process.
- Opens the door on claims, and on the Feres Doctrine by finally questioning the reasoning of claims “incident to service.”
- Recognition by Congress that medical malpractice is a problem at military medical facilities.
There is much to celebrate with this news, but also much left to be done – including a full overturn of Feres. American heroes deserve their day in federal court, just like the rest of us.
Request Legal Help If You Were Injured in a Military Treatment Facility
The attorneys of Levin & Perconti have secured more settlements over $500,000 than any other law firm in Illinois over the last year. We are experienced in FTCA cases and responsible for a $3.5 million settlement for a veteran who was paralyzed as a result of Veterans Administration physicians’ failure to recognize and treat a spinal epidural abscess. Contact the medical malpractice and federal tort claim attorneys of Levin & Perconti now at 1-877-374-1417 for a free consultation.