Defense Department officials may soon offer payouts to the victims of military medical malpractice cases under a provision inserted into the National Defense Authorization Act (NDAA), a $738 billion defense spending bill, agreed to by House and Senate conferees on Monday, December 9, 2019. However, while the proposal allows service members to seek compensation for personal injury or death caused by malpractice by military health providers in medical facilities outside combat zones, it stops short of letting service members sue the federal government in malpractice tort claims. The spending measure is now on the way to President Trump's desk for his signature.
The compromise would not overturn the controversial legal precedent known as the Feres Doctrine, a 1950s Supreme Court decision that prevents service members from suing the United States under the Federal Tort Claims Act (FTCA) when the injuries were sustained during their military service. However, the proposed provision, expected to become law when the authorization bill is adopted by both chambers in coming days, would serve as an attempt to redress what advocates have labeled a grave injustice for suffering military families.
The Feres Doctrine: “Short-Sighted and Unfair”
While the Feres decision was originally intended to protect battlefield decisions from being second-guessed in civilian court, in the nearly seven decades since the ruling it has been broadly applied to circumstances far removed from combat: incidents that occur during training; workplace violence; sexual harassment and assault; military medical malpractice; etc.
Due to its overly broad application, the Feres doctrine is on the receiving end of intense backlash, as it often leaves service members without any form of recourse for their injuries. In his dissenting opinion to the Supreme Court’s refusal to hear a recent Feres Doctrine case, Justice Thomas stated that “Unfortunate repercussions — denial of relief to military personnel and distortions of other areas of law to compensate — will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres.”
Supreme Court Precedent
Because the Feres Doctrine is a Supreme Court precedent, it can only be changed one of two ways:
(1) One way would be to bring a case all the way to the Supreme Court in the hopes they reverse the original ruling — bearing in mind that the Supreme Court only reviews 80 to 100 of the 7,000 or 8,000 petitions it receives each term.
(2) The second way is to change the underlying law — the FTCA — to make an exception for certain cases, like medical malpractice that occurs at a military hospital.
Where the Feres Doctrine Stands
In the legislation, lawmakers noted that although the move “does not change or repeal the Feres doctrine, it authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death…that was the result of medical malpractice caused by a Department of Defense health care provider.”
Defense Department officials have long resisted any change in the Feres doctrine standard, arguing that on-duty military deaths are already compensated through military death gratuities. Allowing families to sue for extra damages, they argued, would create a different value system for different service members’ deaths. They also expressed concerns that any change could allow frivolous lawsuits or legal second-guessing of some battlefield decisions.
House lawmakers had included a full Feres repeal in their draft of the legislation earlier this year. Senate lawmakers opposed the idea, and Senate Judiciary Committee Chairman Lindsey Graham refused to waive his committee’s jurisdiction on the issue to allow it in the final compromise bill.
The number of claims that might be filed a year is not known. According to the Defense Health Agency, the number of “sentinel events” — those resulting in death or serious injury, including loss of limb or function or a serious psychological injury — increased in military health facilities from 121 in 2013 to 319 in 2016.
In 2011, the Congressional Budget Office estimated that overturning the Feres doctrine would cost the government an average of $135 million every year in claims. If the law were made retroactive, the estimated price tag was $2.7 billion over the next 10 years. There are no available updated estimates as to the cost of overturning Feres.
New Means of Redress
The proposed legislation includes the new military claims settlement process. Most claims would be limited to under $100,000, although the Secretary could authorize larger payouts in some circumstances. Victims would have two years after the malpractice incident or omission to file a claim, with the exception of the first year of the legislation’s enactment.
Exactly how the Secretary would determine which claims would be granted remains unclear. The legislation does specify that any claim awarded “is not allowed to be settled and paid under any other provision of law.”
California State Representative Jackie Speier, who championed the effort to change the law, called the provision’s inclusion a “landmark day in the fight for justice,” but expressed “serious concerns” that the Defense Department will run the claims process as she still believes service members deserve their day in court.
If you are a veteran who has been injured during service or not getting the relief you need, contact the experienced attorneys at Whitcomb, Selinsky PC or their sister firm, the Rocky Mountain Disability Law Group. Please call (303) 534-1958 or complete an online contact form.