Home > Military Life > Updated Provision in the Defense Spending Bill Allows Member of the Military to File Medical Malpractice Claims

Updated Provision in the Defense Spending Bill Allows Member of the Military to File Medical Malpractice Claims

 
 

   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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