How to Make a Medical Malpractice Claim in the Military

First things first: thank you.

To everyone who has served in the U.S. Armed Forces, We are deeply grateful. I’m grateful to you, and I know what you’ve been through and where you are today.

Having served in Operation Desert Storm and spending 15 years in the Army, I understand the unique situation a military or veteran faces, particularly if you’re dealing with long-term injuries or illnesses resulting from your time in active duty.

What is medical malpractice?

Medical malpractice is when a person becomes ill or injured because of a physician or medical provider’s negligence. Common medical malpractice claims include errors while administering anesthesia, failure to properly diagnose a disease or condition, misreading or ignoring test results, unnecessary surgery or other invasive procedure, surgical errors, poor follow-up care, errors in prescribing medication, and a variety of other issues.

There are 3 elements to prove that a doctor or provider is negligent in a personal injury medical malpractice claim:

1. Negligent violation of the standard of care. The medical profession has certain standards that are recognized and accepted as “reasonable,” according to health care professionals under similar circumstances. A physician or medical provider is required to administer care according to the standards that would be reasonable according to their training, specialty, and community. In short: Did the physician act as an equally trained doctor would have in a similar circumstance?This would also apply to military medical care, whether it’s treatment provided on a base in the U.S., overseas, in a Veterans’ Administration (VA) hospital, or in the field. Such cases would take into consideration the resources, technology, medication and equipment access in the specific situation.
2. The negligence caused an injury. Violating a standard of care, alone, is not malpractice. In any personal injury claim — medical malpractice included — there must be an actual injury that was caused by the person’s negligence. You need to prove that the negligence was the actual cause of your injury or condition.

3. There are significant damages from the injury. A medical malpractice claim can be extremely expensive because it requires significant testimony from medical experts, and there could be an extensive discovery process. The patient must show that the injury involves disability, lost income, extreme pain and suffering, hardship, or significant medical expenses.

Rules for military malpractice claims

The Defense Department published new rules for how a servicemember or their representative can make a claim against the military for malpractice. This upends the prior Feres Doctrine, which originally went into effect based on a landmark Supreme Court Case in 1950.

For decades, the Feres Doctrine prevented active-duty personnel from suing the military over personal injuries related to their service. That included medical malpractice.

However, in late 2019, the National Defense Authorization Act made it permissible for a servicemember or their representative (if the person is deceased or incapacitated) to file a claim for personal injury or death caused by medical malpractice within a military treatment facility.

By February 2021, there were 227 malpractice claims filed with a potential total value of $2.16 billion. That includes 110 army claims that seek $1.2 billion in damages and 87 Air Force claims that total approximately another $1.2 billion.

The military already has a compensation system in place that covers costs for combat or training injuries, motor vehicle accidents, or other deaths or disabilities in the line of duty.

A medical malpractice claim must be for an injury that is “incident to service.” In other words, the malpractice must have occurred from medical care received at a medical treatment facility from a Department of Defense health care provider.

It’s also important to note that the new claims process is considered a last resort. Claims are eligible only if they aren’t able to be settled or paid in any other way or under another law.

How to file a military medical malpractice claim

A service member must file a medical malpractice claim with their own branch:

• Army. File with the Office of the Staff Judge Advocate, the center judge advocate of the medical center where the malpractice happened, or with the tort claims division of the Army Claims Service at Fort Meade, Maryland.
• Navy & Marine Corps. File with the tort claims unit of the Office of the Judge Advocate in Norfolk, Virginia.
• Air Force & Space Force. File with the Office of the Staff Judge Advocate at the nearest Air Force base or mail to the Air Force Legal Operations Agency, Claims and Tort Litigation Division at Joint Base Andrews in Maryland.

Your military malpractice claim must be filed within 2 years of when the malpractice took place.

Claims must be in writing

Your military medical malpractice claim must include the following information:

• The basis for the claim
• Dollar amount requested
• Signature of the claimant or their representative
• If filed by a representative, it must include an affidavit that specifies that the person is authorized to act on the claimant’s behalf.
• Affidavit stating that the claimant consulted with a medical professional who believes that the military health care provider breached the standard of care and caused the injury

Claims by reservists

A reservist may only file a claim if it’s connected to a personal injury or death that took place when the member was in federal duty status.

Damages for military medical malpractice

Similar to a personal injury lawsuit, damages for a military medical malpractice claim can include compensation for:

• Medical expenses, past and future
• Lost earnings and earning capacity
• Other costs of daily living
• Past and future pain and suffering, including loss of enjoyment of life and loss of consortium (up to a maximum of $500,000)

If the DoD or Veterans Affairs Department has already paid for the malpractice-related costs, that amount is deducted so that you’re not being compensated twice for the same cost. This includes pay and allowances while on active status, disability or severance pay, incapacitation pay, death gratuities and other expenses.

Problems with the military medical malpractice claims process

It’s not a perfect system.

The Navy Times reports that the military medical malpractice process does not include discovery, which would mean that the claimant or their attorney is not able to question the medical provider who allegedly made the mistakes that caused their injury. While each side is entitled to request and receive information like medical records, there’s no examination process.

The result is determined by military officials, unlike a civilian personal injury lawsuit, which is decided by a jury of the plaintiff’s peers. In addition, there’s no appeals process like you would have in a civilian court — the settlement is final. A claimant has a right to file an appeal after the initial denial, but they are not permitted to file additional materials to support their claim unless the DoD requests additional information.

If you were injured from medical malpractice as a military member, you do have recourse. But you need a lawyer who’s not intimidated by military processes and personnel, and who also understands the civil legal system — because sometimes that’s a better option.

That’s where my military background benefits my legal practice. It can be difficult to navigate the military system, particularly when determining the best course of action for a malpractice claim. If you’re injured and looking for options, contact my office for a free consultation.