On behalf of Tittle & Perlmuter
Military personnel can now sue the federal government for medical malpractice, thanks to the 2020 National Defense Authorization Act. The Act, which President Donald Trump signed into law recently, provides an avenue for justice to service members who were injured in military hospitals.
For decades, members of the armed forces were unable to pursue justice for medical malpractice under the Feres Doctrine. The Feres Doctrine was based on a 1950 Supreme Court case that barred service members from suing the federal government. However, the spouses and children of military personnel could file a case.
“This change in law is good news for our service members,” Sean Cronin, a Florida attorney, wrote for the Jacksonville Daily Record. “In the past, because of the Feres Doctrine, I turned down numerous heartbreaking, meritorious medical malpractice cases involving active duty service members. Now, because of the change in the law, there is a potential avenue for recourse.”
Background of the Policy Change
The parents of a 21-year-old soldier who died at a military hospital are largely responsible for the policy change. In 2006, Nathan Hafterson was intubated at a Naval hospital in Jacksonville. Hafterson had a fatal reaction to the anesthetic used during the intubation. If the staff had recognized the allergic reaction in time, Hafterson might have survived. Instead, he went into cardiac arrest and died.
“After a wrongful death suit was dismissed by the U.S. District Court in Jacksonville in 2008, our team appealed the case to the U.S. Court of Appeals for the 11th Circuit, which denied the appeal,” Cronin wrote. “After petitioning the U.S. Supreme Court for certiorari review, the court ultimately denied reviewing the case. While it is too late for the Hafterson family, troops who are harmed by medical malpractice now have peace of mind knowing they may pursue claims for justice.”
Suing for Medical Malpractice in the Military
Under the 2020 National Defense Authorization Act, service members can sue military doctors, hospitals, nurses, medics, and other medical personnel for malpractice. However, the case must be filed within two years, and must meet the same criteria as civilian malpractice cases. The plaintiff must show the following:
- Medical personnel violated the Standard of Care
- That violation resulted in injury
- The injury caused damages to the plaintiff
Claims of medical malpractice in the military must be filed by the injured person or the person’s legal representative. Where they file the claim depends on which branch of the military they serve:
- Members of the Navy should file with the Office of the Judge Advocate General in Norfolk, Virginia
- Army personnel should file the claim with the Office of the Staff Judge Advocate, the Center Judge Advocate of the hospital or medical center where the injury occurred, or with U.S. Army Claims Service
- Air Force personnel should file a claim with the Office of the Staff Judge Advocate at the nearest Air Force Base
The Secretary of Defense will then review the case. If it is deemed valid, the injured service member can receive up to $100,000. If the award exceeds $100,000, the Secretary of the Treasury will review it for final approval.
Members of the armed forces already put their lives on the line on the battlefield, where many are killed or sustain catastrophic injuries. The last thing they should have to worry about is being harmed at a military medical facility due to negligence. The new law allows them to seek the justice they have been denied for far too long.