Military Medical Malpractice Lawsuits

The House Judiciary Committee is expected to consider a bill today that would allow military personnel to file medical malpractice lawsuits against the military. The proposed law comes in the wake of the death of a marine as the result of the misdiagnosis of skin cancer by military doctors. The Feres Doctrine, named for a 1950 Supreme Court case, currently preventing people in the military from filing medical malpractice lawsuits.

Why should our military have the opportunity to bring the same claims anyone else can bring? I don’t want to minimize the costs; it is real money. But compared to the toll we are putting on our soldiers these days, it seems a small price to pay for a bit of justice.


May 2024 Update: The Department of Defense published a Final Rule in the Federal Register updating its regulation on the medical malpractice claims process for Active-Duty Service members. This updated rule removes the offset requirement for payments for non-economic damages.

The new regulation enhances benefits for Service members filing medical malpractice claims related to incidents in military medical treatment facilities. Previously, any payments received from the DoD and the Department of Veterans Affairs were used to offset the total claim amount.

Now, eligible claimants can receive the full amount of non-economic damages—such as pain and suffering, physical discomfort, and loss of enjoyment of life—without any offset.

This change is in direct response to feedback from Service members, Members of Congress, and other key stakeholders. The Final Rule is effective immediately, and all currently pending claims will be adjudicated using the updated calculation method.

October 2023 Update: The Defense Department has raised the limit on medical malpractice claims from $600,000 to $750,000 for non-economic damages for service members mistreated in military medical facilities. This adjustment, effective immediately, addresses concerns that the earlier guidelines, established about two years ago, lacked adequate oversight and failed to address legitimate claims. Another proposed modification focuses on how payouts are offset based on other military or Veteran Affairs benefits. Despite these changes, advocates, including Stayskal’s attorney, believe further reforms are necessary. The recent proposed changes will be reviewed over a 60-day period before becoming law.

Feres Doctrine

The Feres Doctrine, established in 1950 from the Supreme Court case Feres v. United States, prevents active-duty military members from suing the federal government for injuries deemed incidental to military service. This has traditionally included medical malpractice injuries suffered in military hospitals.

Exceptions to the Feres Doctrine

While active-duty military members traditionally couldn’t file claims for medical malpractice, their dependents, such as spouses and children, could do so. Additionally, veterans could file claims for malpractice injuries that occurred during their treatment in a VA hospital after their service had ended.

Change in Policy

Master Sgt. Richard Stayskal’s medical malpractice case became a catalyst for a significant shift in policy. Diagnosed with terminal lung cancer that military doctors initially mistook for pneumonia, the injustice of his plight spurred Congress to adjust the law in 2019. While the Feres Doctrine remains intact, there is now a pathway for military personnel to file claims for military medical malpractice.

New Compensation System

As a response to the aforementioned changes, the Defense Department introduced a compensation system in 2020, allowing military members to file malpractice claims for incidents that occurred in military hospitals. While this doesn’t grant them the right to sue the federal government, they can potentially receive compensation for their injuries.

Process and Limitations

Under this new system, the claims are internally reviewed by the Department of Defense, not the courts. If negligence is determined, compensation can be awarded. However, these awards are only for economic harm, like lost wages or additional medical expenses, not for pain and suffering.

Statute of Limitations for Military Medical Malpractice Cases

Under the Federal Tort Claims Act (FTCA) military medical malpractice claims against the government are subject to a 2-year statute of limitations. This means that the claim must be filed within 2-years of the date that the claim “accrues” or it will be legally barred. A claim “accrues” when the plaintiff knew or should have reasonably known that they had an injury potentially caused by medical malpractice.

Military Malpractice Cases Are Filed Under the FTCA

The Federal Tort Claims Act (FTCA) is a law that sets forth the rules and procedures that must be followed if you want to bring a civil negligence claim or lawsuit against the federal government. All cases involving military medical malpractice will fall under the FTCA because they are claims against the military, which is a part of the federal government.