Feres Doctrine Revisions Fail To Protect Servicemembers

Those who sign up to serve in our armed forces are prepared to make the ultimate sacrifice for our country. In return, we ought to offer them the best care and protection possible. The Feres Doctrine, which stemmed from the Supreme Court Case Feres v. United States, bars military members from filing a lawsuit if they’re injured while on active duty.

This decision protects the government from facing civil claims filed by those hurt in battle—but it also prevents anyone who’s been harmed by the actions of other military members from recovering compensation.

A Perversion of Intentions

After a barracks fire killed Lieutenant Feres, a veteran of the Battle of the Bulge, his wife attempted to sue the army. She alleged the boiler that exploded in the lead-up to her husband’s death was known to be faulty and, furthermore, the army had failed to appoint a fire guard the night of the incident. Her lawsuit was the first of its kind and set a heartbreaking precedent.

The right to sue the government for personal losses was rather new when she filed her suit in 1950. After thirteen people died when a B-25 Army bomber crashed into the Empire State Building in 1945, their loved ones had no recourse.

The federal government would have to pass a law to allow a case to be filed against them—and they would have to do this for every single suit someone tried to bring.

In 1946, Congress passed the Federal Tort Claims Act, which allowed anyone to bring a civil suit against the government. The act did specifically prohibit troops from collecting compensation for injuries caused by combat. It did not bar suits for other harms suffered while in the military. Unfortunately, a Supreme Court decision denied servicemembers that right.

Broad Interpretations of the Feres Doctrine Fail To Protect Military Members

The court’s decision in Feres set the stage for the denial of other suits filed by and about troops before they were even heard. Courts have interpreted a phrase from the original decision—stating that any injury “incident to service” was not cause for a lawsuit—to turn away cases including:

  • Deliberate exposure to radiation during nuclear tests
  • Performing LSD experiments on unwitting subjects
  • Rapes and assaults by fellow soldiers
  • Attacks by army civilians
  • A towel being left in a soldier after surgery
  • The death of a mother during childbirth likely due to malpractice

None of these cases are in any way linked to the dangers of combat, and all of them include harms that would justify a civilian’s personal injury suit. It is simply the venue of this wrongdoing that bars the victims from being able to ask for recompense.

Changes Have Been Made—But They’re Not Enough

The 2020 National Defense Authorization Act, largely a funding bill, contains a clause that allows servicemembers to file medical malpractice suits against any military healthcare provider whose gross negligence harmed them. The bill still restricts claims due to the specifics laid out therein:

  • The Department of Defense, rather than the federal court system, will hear and decide cases
  • Only cases filed in 2017 or later will be eligible for consideration
  • Damages cannot go beyond those directly caused by the malpractice (which is in contradiction to tort law used in courts)
  • The government will not be liable for any attorney’s fees
  • Attorneys are limited in the percentage they may ask for as payment for their work

Aside from potentially limiting the number and caliber of attorneys willing to take these cases, the conditions only allow compensation for a narrow range of non-combat damages, leaving many veterans and their families without help.

Further Details About the National Defense Authorization Act

The details behind the law change that allows servicemembers to file medical malpractice lawsuits against the Defense Department for damages were issued by the federal government on June 17, 2020, and made into effect 30 days later.

Many anti-Feres advocates lauded the change as a step in the right direction but were concerned that claimants would not be afforded the same rights as those who argue a case in a civilian courtroom.

For example, although those filing claims can obtain relevant medical records, there is no equivalent to the civilian court discovery process, which allows each side to request and acquire information from the opposing side applicable to the case.

Moreover, no discovery process means that claimants and their legal counsel won’t be able to question health providers who allegedly made medical mistakes.

The claims process may also be characterized as a conflict of interest, as military officials determine whether other military officials were in error.

What Is Military Medical Malpractice?

Military medical malpractice consists of any negligent actions or inaction taken by a military physician, nurse, hospital, etc., that resulted in the injury or death of an armed forces member. Examples include failure to diagnose cancer, administering incorrect medication for medical ailments, or performing surgery incorrectly.

Medical malpractice claims are rooted in the notion that health providers should be required to provide a standard level of care in the performance of all services.

Therefore, when a doctor or nurse fails to meet that standard in practice, and a patient is injured or made ill, the victim may be able to seek a medical malpractice claim and compensation for damages incurred.

More About the Department of Defense Claims Process

A proven claim of $100,000 or more is paid for by the Treasury Department, while the Pentagon pays for any claim valued at less than that amount. Claims must be filed within two years of the purported event or the claimant concluding that an injury or death resulted from medical malpractice.

As opposed to a civilian case, there will not be a judicial review of decisions. Moreover, the new regulation states that “…the adjudication and settlement of a claim under this part is final and conclusive and not subject to review in any court.”

You Must Prove the Department of Defense’s Negligence

Because claimants must prove their case, they are allowed to present evidence from outside experts concerning its validity and value. The Department of Defense can also request additional records from the claimant if needed.

Claimants are required to demonstrate that “a negligent or wrongful act or omission” by a Department of Defense health provider was the proximate cause of the harm suffered by them or a family member, and the Department will only be liable for the portion of harm attributable to the medical malpractice of the health provider.

Claimants initially denied still have the right to appeal. However, they cannot provide any additional materials to support their appeal unless the Department of Defense requests it.

Possible Recoverable Damages in an Injured Veterans’ Case

Claim decision-makers will factor in several types of losses related to the alleged medical malpractice, such as economic damages, including the following:

  • Medical, hospital, and related expenses incurred, and future medical expenses
  • Lost earnings and loss of earning capacity
  • Cost of household services and assistance with activities of daily living

Non-economic damages are also included. These include:

  • Past and future conscious pain and suffering
  • Physical disfigurement
  • Loss of life enjoyment

Information on Filing Claims

For more information on how to file medical practice claims against the military, please refer to the following links:

The Feres Debate Continues

Since its initial introduction, the Feres Doctrine has been heavily debated by courts and lawmakers. Many hold that the rule goes against the intentions of the 1946 Federal Tort Claims Act; others point to the inconsistencies between the Feres Doctrine and other tort law.

The changes included in the National Defense Authorization Act are a step toward reconciling military members’ rights with those of the rest of the country, but still bar a large number of cases that would be admissible in different circumstances.

Those who serve have their opinions, too: on the pro-Feres side, some argue that veterans are compensated for their service and risks with many benefits after their discharge.

They think allowing lawsuits for medical malpractice, but not combat injuries, would put veterans on an uneven playing field. On the other hand, servicemembers argue, that they are at enough risk from combat. And, they say, holding people accountable might cut down on malpractice and result in a decreasing number of injuries.

We are watching the National Defense Authorization Act as it pertains to civil claims against the government, as well as other efforts to reform and/or dismantle the Feres Doctrine. Servicemembers deserve the best support we can give them. Right now, America is neglecting its right to recompense

Consult With a Personal Injury Attorney’s Team Today

We’re proud to support our troops and will continue to advocate for the reversal of the Feres Doctrine. You might be an active-duty servicemember that suffered a severe or permanent injury related to a government or military physician’s negligence. If so, please contact us for a free and confidential case review.

We can help you determine if you have a valid medical negligence case under the new law and seek compensation for your losses.

Armey veteran
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