Military Malpractice Lawyers Advocate for Active-Duty Members in Pursuit of Recovery for Medical Errors

According to the Military Times, Navy Lt. Rebekah Moani Daniel arrived at Naval Hospital Bremerton and gave birth to her daughter, Victoria, without complications. However, within four hours after the birth, she began hemorrhaging. Lt. Daniel, herself a labor and delivery nurse at this hospital, was given medication to get her bleeding under control, but unfortunately passed away before even getting the chance to hold her new baby girl. 

According to court documents, there were several incidences of alleged negligence leading up to Lt. Daniel’s death: 

  1. A balloon device that could have stopped the bleeding was employed too late.
  2. The obstetrician, who was called to take the case from the delivery doctor, waited nearly 90 minutes after the standard recommended time to order a blood transfusion.
  3. By the time Lt. Daniel received the transfusion, her heart rate had become erratic and her body began shutting down.

Lt. Daniel’s grieving husband, Coast Guard Lt. Cmdr. Walter Daniel has said, “Who dies of blood loss in childbirth nowadays in the United States? This is called a ‘never event’ in the medical world. It’s not supposed to happen.” According to recent statistics, 174 “sentinel events” (unexpected occurrences involving serious injury or death of a patient) occurred at military treatment facilities in 2015 alone, with 32 of these involving injury to a mother or her child during childbirth. Further, 2,111 administrative claims for malpractice were filed against Army, Navy, and Air Force medical centers and hospitals in this year. Included in these claims were:

  • Senior Airman Colton Read, 20, who required amputation of both legs after military surgeons punctured his aorta during gallbladder surgery.
  • Aviation Warfare Systems Operator 3rd Class Nathan Hafterson, 21, who died at Naval Hospital Jacksonville, Florida, after doctors gave him a medication that caused a life-threatening fever and then failed to give him a life-saving antidote for hours.
  • Marine Sgt. Carmelo Rodriguez, 29, who died in 2007 after a military doctor properly diagnosed a melanoma but didn’t tell him or refer him to another provider for treatment.
  • Air Force Capt. Heather Ortiz, who was given a medication for which she had a known allergy, documented in her medical records. When she received Benadryl to counteract her allergic reaction, her blood pressure dropped, cutting off the oxygen supply to her unborn daughter, causing the little girl to suffer brain and nerve damage.

Typically, a family who has suffered the loss of a loved one due to medical negligence has legal recourse. However, because Lt. Daniel was an active-duty member at the time of her death in 2014, her family was prohibited from taking any legal action due to the Feres Doctrine. 

What is the Feres Doctrine? 

Historically, the Feres Doctrine has prevented active-duty military members who were injured as a result of medical negligence by a government employee from suing the federal government under the Federal Tort Claims Act. The doctrine comes from the 1950 U.S. Supreme Court case Feres v. United States, which was decided after the death of Army Lt. Rudolph J. Feres. 

In Feres v. United States, Lt. Feres’s widow sued the U.S. Government under the Federal Tort Claims Act, alleging that the barracks where Lt. Feres lost his life were known by military officials to be unsafe because of a faulty heating system and that there was an ineffective overnight watch system in place. She argued that this is what led to the fire in the barracks, and the firefighters being delayed by 45 minutes. Four other junior officers lost their lives along with Lt. Feres that day.

When the Supreme Court ruled on Feres v. United States, they determined that service members cannot file lawsuits against the federal government under the Federal Tort Claims Act, regardless of whether government employees were negligent in their duties, causing injury or death. Until 2020, when the National Defense Authorization Act changed the effect of the Feres Doctrine.

The 2020 National Defense Authorization Act Changes the Law

The 2020 National Defense Authorization Act (NDAA) has now made it possible for active-duty members to bring administrative claims for medical negligence against the federal government. The NDAA includes a provision that authorizes the Secretary of Defense to settle administrative claims brought by active-duty members against the United States for injuries or death resulting from medical malpractice caused by a Department of Defense health care provider. This provides an avenue for active-duty service members to pursue and recover damages for claims of military medical malpractice. 

What is Military Medical Malpractice?

Military medical malpractice is medical malpractice that occurs in a military hospital, medical facility, or clinic. Medical negligence can cause significant physical, emotional, financial damage to patients and their families. If a doctor or medical professional provides substandard care that results in injury, harm, or wrongful death, then the patient may be able to bring a medical malpractice lawsuit or administrative claim. 

While active-duty military members are still barred from bringing lawsuits under the Federal Torts Claims Act, military family members and non-active-duty members are able to bring these claims.

What is the Federal Tort Claims Act? 

The U.S. government is immune to all civil lawsuits unless it waives that immunity, as it has with the FTCA. The Federal Tort Claims Act (FTCA) is a federal law that provides a legal mechanism for recovery for those who are military family members or non-active-duty members and have suffered injuries due to the negligent or wrongful actions of employees of the U.S. government. 

For active-duty members, the avenue for recovery for military medical malpractice claims is under the Military Claims Act (MCA).

What is the Military Claims Act?

The Military Claims Act governs all malpractice claims brought by active-duty military, and cases that occur in overseas military facilities. Because the Military Claims Act does not permit lawsuits to be filed, all claims are decided administratively.

In the past, the MCA has only been used to allow those injured in overseas military facilities to bring administrative claims for recovery. However, with the passing of the 2020 National Defense Authorization Act, active-duty members injured by US government employees are now able to bring administrative claims under the MCA as well. 

These claims must be asserted within 2 years of when the claim accrued, and they must be brought either by the active-duty member or by their authorized representative (this usually means a lawyer). For those who lost their lives due to medical negligence or are otherwise incapacitated, the claim may be filed by a family member.

Bringing these claims involves carefully reviewing all the related medical records in conjunction with medical experts and presenting the claim first to the claims officer at the military base, and then, if the claim is not settled at that time, at trial to a federal judge. 

The Bureau’s Annual Report to Congress for the Fiscal Year lists all payments that the United States made to claimants under the MCA. 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.

Claims for recovery brought by active-duty members or their families are paid for with federal funds that have been designated specifically for this purpose in the yearly budget. The amount allocated to cover these claims each year may be decreased if these funds are not used. No one deserves to suffer catastrophic injuries or lose a loved one as the result of another person’s medical negligence or mistake. Unfortunately, these incidents do occur. If you or a family member has suffered as the result of another’s carelessness, you may have a Federal Torts Claims Act or Military Claims Act case. Our attorneys have decades of experience and are skilled at bringing claims through this unique process, so we are better able to help you recover. 

Our Military Malpractice Lawyers have the Experience to Help You

Military malpractice lawyers are helping individuals and families recoup some of what they lost due to military medical malpractice. With this new change in the law, those filing administrative military medical malpractice claims must follow the correct procedures. The best way to ensure that your claim is properly filed is to work with an attorney experienced in this complex area of the law. If you or a loved one has suffered an injury or death as a result of medical negligence, our military malpractice lawyers can help. 

Unlike most other attorneys across the nation, we have experience with military medical malpractice cases under both the MCA (Military Claims Act) and FTCA (Federal Tort Claims Act). With the unique knowledge and skills to successfully represent active-duty members and their families, our compassionate attorneys are ready to help you with your claim.

About Our Military Malpractice Partners

Bruce J. Klores and Scott M. Perry formed the Military Medical Malpractice Attorneys partnership in response to the change in the law, which allows active-duty members of the military to file administrative claims to recover for injuries suffered as a result of medical negligence. Both partners are skilled litigators. Bruce J. Klores has recovered over 40 million dollars for military families, and Scott M. Perry has obtained 46 million dollars in medical malpractice verdicts, in 2019 alone. 

Our injury lawyers combined decades of experience in the courtroom makes them well-equipped to handle your military medical malpractice case. 

Contact our military malpractice lawyers for more information or a free, confidential case evaluation to help determine if you have a potential malpractice claim.