In late December 2020, the Senate made a step forward in protecting military service members from medical malpractice at the hands of military doctors.
The 2020 National Defense Authorization Act now allows service members to file a claim for compensation if they feel they have been the victim of medical malpractice while serving in the military. This includes medical, dental, and other medicinal practices. These claims can be denied and they do not cover an attorney fees a service member might accrue while seeking legal counsel.
Although this was heralded as a huge step for service members, many legal experts and families who have experienced medical malpractice while serving in the military see it otherwise. The Feres Doctrine, which was signed into law in 1950, states that military service members cannot sue military medical doctors for malpractice, giving them little to no recourse when malpractice has been committed. The new legislature in the 2020 National Defense Authorization Act modifies this, allowing claims to now be filed, but service members still cannot sue for compensation due to malpractice.
This issue has come to head several times over the past seven decades, but recently military families have begun to fight it more furiously. Families like those of Rebekah Daniel, a Navy lieutenant who died during childbirth due to medical malpractice, cannot sue the doctor or the hospital because she was the active duty service member giving the family no compensation and no closure to losing their loved one at the hands of a medical professional.
Others like Army Capt. Katie Blanchard, who was lit on fire by a colleague of whom she had complained about as being dangerous to her and others, at the clinic in Fort Leavenworth, Kanas have no legal recourse with the government or with her superiors at the clinic due to the Feres Doctirne.
What this Means for Military Families Who Experience Medical Malpractice
In short, the new legislation put forth by the 2020 National Defense Authorization Act makes little to no change to the current Feres Doctrine that is still held into place despite Congressional hearings and Supreme Court cases that have asked for it to be overturned. Service members can file a claim against the government but as with all compensatory claims, these can be denied at the discretion of governing party which in this case, is the United States government.
In addition, this also means that there is no legal discourse for the medical professional who causes the malpractice. Military service members and their families are barred from suing medical professional meaning they are still allowed to practice medicine without any repercussions for their mistakes.
In short, service members can be seriously injured or die at the hands of military medical professionals but they nor their families have no legal recourse for justice.
Can Dependents Sue for Malpractice?
Military spouses and any dependent of the military service member who receives care from a military doctor or at a military Medical Treatment Facility (MTF) can sue for medical malpractice including medical professionals, hospitals, and clinics. Military spouses and dependents do not fall under the Feres Doctrine.
In addition, a military service member can sue a civilian doctor under civilian court if a military service member is seen at a civilian hospital (which can only be done in cases of emergencies when life or limb is at risk). They still have no legal recourse, however, if a civilian medical professional is employed at a military treatment facility where they are receiving care and they experience medical malpractice at the hands of the civilian medical professional.
Why the Feres Doctrine Should Be Overturned
Medical is known by the military community to be mediocre at best. Service members frequently joke (and there are memes to prove it) they are often gaffed off when reporting an injury and told to “take a Motrin and walk it off.”
But service members don’t have much of a choice. Unlike their civilian counterparts and even their dependents, they cannot choose another doctor or hospital if the one they are visiting for treatment isn’t giving them proper care.
They do not have the resources offered to civilians to seek second opinions without paying out of pocket to do so, or to visit another facility unless prescribed by a doctor. Their choices are limited as it is and service members cannot even do their own due diligence when they feel their treatment isn’t up to basic medical standards.
And then when something dire happens resulting in further injury or death, there is no recourse. Service members are left standing between a rock and a hard place when it comes to medical malpractice, with the Feres Doctrine dumping dirt on top of them to keep them down.
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When military service members sign that dotted line, they are under the understanding that they are putting themselves at risk for bodily injury and harm given the nature of their jobs. But they have a right to decent and ethical healthcare just like any other civilian. Whether an injury was sustained while in combat, in training, or unrelated to military service, military service members and their families should have the right to gain compensation when their medical case was handled improperly, especially when it causes more harm or death.
Additionally, doctors and medical professionals should be held accountable when they do not perform their duties accordingly or put a service member in more harm.