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Exception May Allow Service Members to Recover Through Medical Malpractice Claims

A claim folder

A new law allows non-combat servicemembers to file medical malpractice claims and recover compensation for their losses from the federal government when they are injured by military healthcare provider negligence.

Impact of the 2020 National Defense Authorization Act

In December 2019, the 2020 National Defense Authorization Act (NDAA) was signed into law by President Trump. This bill outlined new programs, policies, and activities for the 2020 fiscal year for the U.S. Department of Defense. A significant provision in the NDAA creates an exception to the Feres Doctrine, giving non-active military service members the right to sue the federal government when military healthcare provider negligence causes them to be injured.

Previously, service members were prohibited from filing medical malpractice claims against the government. In 1950, the United States Supreme Court barred all military personnel and their families from filing lawsuits with medical malpractice lawyers against the federal government for damages. Under the Feres Doctrine, courts have been allowed to dismiss countless injury medical malpractice complaints.

The NDAA allocates $400 million to the Department of Defense for medical malpractice claims and damage awards to military victims of negligence. This new act permits military personnel and their families to seek monetary damages for personal injuries and/or deaths caused by negligent actions of military physicians and dentists. However, it does not permit service members to file a lawsuit in other tort cases.

If a substantiated medical malpractice claim is determined by the Department of Defense to be worth less than $100,000, compensation will be paid directly to the service member or his/her designated beneficiary. If a claim worth more than $100,000, it will be forwarded to the Treasury Department for payment. Injured military service members must file claims within two years after the malpractice incident occurs, with the exception of the first year in which the NDAA was enacted. Injury victims filing medical malpractice claims in 2020 will be allowed to file for cases dating back to 2017.

Advocates of the NDAA claim the bill is long overdue because the Feres Doctrine prevented military service members the same rights as ordinary citizens. Thousands of injured military service members were prevented from filing claims with medical malpractice lawyers just because they wore a uniform. Moving forward, the new NDAA signed into law may profoundly impact military-related injury claims and medical care for decades to come, because the military will no longer be shielded against poor medical care and negligent actions that result in injuries.

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