The Feres
Doctrine has prompted U.S. courts to dismiss many medical
malpractice complaints filed by members of the military, and this
has also caused courts to discourage plaintiffs from even filing
suit. This has been the norm since the 1950’s, where members of the
military were prevented from filing medical malpractice claims
against the government.
However,
thanks to a new provision in the
Defense spending bill, this may no longer be the case. After
all, it makes sense that we protect our soldiers just as they
protect us.
What Is the Feres Doctrine?
The Feres
Doctrine is a legal doctrine that prevents members of the military
on active duty from successfully suing the federal government under
the Federal Tort Claims Act. The doctrine is named after the case it
was based on. In Feres v. United States, the plaintiffs picked up
highly-radioactive weapons fragments from a crashed airplane. The
servicemen were exposed to
radioactive agents and were not permitted to recover damages
from the government. This doctrine also bars families of service
members from filing wrongful death claims when a service member is
killed or injured.
Sgt. 1st Class Richard Stayskal
The change
to the law was a result of the efforts of Natalie Khawam, who wrote
the legislation for Sgt. 1st Class Richard Stayskal. Stayskal was
misdiagnosed by doctors at the Womack Army Medical Center for
pneumonia when he in fact had stage 4 lung cancer. This misdiagnosis
caused a delay in treatment that would have prolonged his life. The
aggravating circumstance in this case was that the Army doctors
never told Stayskal about the mass on his lungs. It was only after
Stayskal consulted with a civilian doctor that it was revealed that
he had terminal lung cancer. At the time, he had no way to hold the
military accountable.
What Changed In the New Provision?
Under the
new provision, service members and their families will still be
barred from suing for medical malpractice, but the key difference is
that $400 million will be allocated to the Department of Defense
over the next decade to pay out military medical malpractice claims.
The new
provision has been
effective since Jan 1 of 2020. As of this date, military service
members may not request general damages for the loss of quality of
life, pain and suffering, mental anguish, depression and anxiety; as
well as for special damages such as loss of income and loss of
earning capacity.
While it’s
true that in this regard, military personnel do not enjoy the same
rights as ordinary citizens, this new provision at least creates a
means for us to help military servicemen.
If you’ve
suffered the consequences of medical malpractice by a military
doctor, this provision is going to be a big help, especially when we
consider the difficulties we currency face in the form of the
COVID-19 pandemic. As with all legal matters, it’s important to hire
the right lawyers to assist you with your case. In cases like this,
your best choice will always be a
military malpractice attorney.
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