Service members in the United States are not experiencing much success regarding medical malpractice claims against military hospitals even though a law that passed in 2020 gave them the right to file compensation claims against military healthcare centers and physicians.
According to Military.com, “[T]roops have filed 446 claims with the Department of Air Force, Navy, and Army for over $4 billion in damages. However, only eleven cases have been settled, with an approval rate of 2 percent and over one-quarter getting denied.”
The Feres doctrine
The Feres doctrine is a US Supreme Court ruling made in the 1950s. It bars service members from suing the federal government for accidents or injuries regarded as incidental to service. This includes filing against military hospitals for medical malpractice in the Department of Defense health facilities.
In 2020, new legislation was passed to improve how claims are handled in the military health system. The new legislation did not repeal or alter the Feres doctrine; it simply gave troops the power to file claims. However, some service members’ attorneys say the process lacks transparency and is flawed.
Claims filed vs. claims approved
Data from the services show that the Navy has received 146 claims from Marines and sailors or their families. The claims were filed for $1.1 billion in compensation, but the Navy has denied 58 claims, settling only one for $250,000.
The Army refused to comment on this information but eventually said it had 184 claims for up to $1.65 billion. Out of these, it has approved six, denied thirty-six, and 73 cases initially denied are currently in the appeals process. The remaining claims are under investigation and are currently being worked on for resolution.
Meanwhile, 118 claims worth up to $1.3 billion have gone to the Department of Air Force. The service has denied twenty-three without a change for appeal, while it has settled four cases. Six initially denied cases were appealed to the Defense Health Agency, but five were denied, and one is still under consideration.
As to how much the Air Force has paid out, there is no number, as the service did not answer questions. Frank Kendall, the Air Force Secretary, said the service is all about “providing the best medical care possible to our airmen, Guardians, and their families.” He goes further to say that it is their policy to immediately investigate incidents that happen to prevent recurrence and improve the quality of health.
The final rule
On September 26, the Department of Defense published its final rules on medical malpractice claims in the Federal Register. According to the law, service members can file claims for harm caused by civilian or military physicians in military healthcare centers. The claims do not stand if the medical malpractice that caused injuries or death occurred on a ship or in a combat zone.
In the final rule regarding medical malpractice claims, the Department of Defense raised the cap on economic damages. It increased the cap from $500,000 to $600,000. Furthermore, the Pentagon was to directly pay claims seeking below $100,000, while the Treasury Department would review and pay claims above.
Conclusion
According to attorneys representing service members who filed claims for medical malpractice, the process is slow, arduous, flawed, and lacks transparency. “Unfortunately, claims are not moving quickly enough, service members are becoming more ill, and some have even passed away. The waiting time needs to change drastically and immediately,” says attorney Russell Berkowitz.
