Active Duty Medical Malpractice Claims

Until 2020, active duty military were barred from asserting claims for medical malpractice that occurred in a military facilities.  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 Meritorious Claim?

In order to bring a successful non-active duty or military family member medical malpractice claim, 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 first to the claims officer at the military base and then if the claim is not settled at trial to a federal judge.

IF A FAMILY MEMBER WAS INJURED,

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.

The Bureau’s Annual Report to Congress for the Fiscal Year lists all payments that the United States made to claimants under the FTCA. The sum of the “Confirmed Payment Amounts” for all reported “Litigative Payments” and “Administrative Payments” pursuant to the FTCA equaled a total of $305,512,578.63 for 2019. This value includes only those payments that the Bureau explicitly coded as “Federal Tort Claims Act” payments. Those payments explicitly coded as “Military Claims Act” payments made up a total of $18,118,350 for 2019, prior to the passing of the new provision which allows active duty members to bring claims.

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.