Active Duty Medical Malpractice Claims

Until 2020, active duty military were barred from asserting a claim for medical malpractice that occurred in a military facility.  Thanks to a change in a law called the National Defense Authorization Act, active duty military can now pursue these claims through an administrative process.

The New Law and How it Works

In 1950, the U.S. Supreme Court in Feres v. United States barred active duty military from bringing claims for medical malpractice that occurred in military facilities. Congress has now changed that law, by adding a new section to the Military Claims Act.
While active duty military still cannot file a lawsuit, they can pursue administrative claims for their injuries. 

Requirements to Assert a Claim:

The claim must be asserted by an active duty member of the uniformed services or by their authorized representative (this usually means a lawyer). If the member is deceased or otherwise incapacitated, the claim may be filed by his/her representative (this usually means a family member).

What is a Meritous Claim?

In order to bring a successful malpractice claim or case, the claimant must prove that the health care provider acted negligently and that this negligence caused an injury and damage. Proving a case requires obtaining and reviewing medical records in conjunction with experts and then presenting the claim, with supporting evidence, to the government.


How Are These Claims Paid?

If the Secretary of Defense determines that the claim is meritorious, and is valued at $100,000 or less, then the Secretary may pay the claim.  If the Secretary determines the claim is meritorious and valued at more than $100,000, then any amount over $100,000 is paid by the Treasury.

What Is the Difference Between the Military Claims Act and the Federal Tort Claims Act?

The Military Claims Act governs all malpractice cases that occur in overseas military facilities, and all cases brought by active duty military. The Military Claims Act does not permit lawsuits to be filed. All claims are to be decided administratively.
The Federal Torts Claims Act governs malpractice claims brought by non-active duty and their dependents against United States military facilities. The Federal Torts Claims Act allows for lawsuits.

Does the New Law Apply to Family Members Who Are Not Active Duty Military?

No. If a family member (who is not active duty military) receives negligent health care from a military health care provider, he/she still has the right to file suit pursuant to the Federal Tort Claims Act (“FTCA”). Our firm has a long history of success with these cases.