If you are in the military and have suffered an injury, you are not alone. You put your life on the line to protect our country and you are entitled to competent treatment, just like everyone else. However, unlike civilians, medical malpractice claims are more difficult to file. Hiring a lawyer is generally the best route to take, but you will also want to know everything you can about the suit.
What Is Medical Malpractice For Military?
A medical malpractice claim is made any time a person suffers greater illness, injury, or death due to the negligence of a health care professional. Military malpractice occurs in a clinic, medical facility, or hospital that serves those who are in the armed forces. Federal Tort Claims Act (FTCA) allows military personnel to seek help for malpractice that has occurred by Federal employees because all military facilities are governed by Federal agencies. When neglect occurs during the treatment phase, families can be left with years of financial burdens and emotional turmoil.
Who Can Suffer From Military Medical Malpractice?
While anyone can suffer from medical malpractice, the military fraction is more selective in who qualifies. This classification applies to anyone serving actively, in the reserves, retired, or veterans, as well as their immediate family (spouse and children). In addition, the negligent care must have been from someone in a military facility, not a civilian one. You must have suffered a significant personal injury or loss due to substandard care. Examples include:
- Brain trauma
- Head injury
- Spinal injury
- Birth injury
- Infections (must be direct result to negligence)
- Wrongful amputation
- Wrongful death
- Wrong-site surgeries
- Surgical items left inside surgery site.
What To Know About FTCA?
The FTCA stands for Federal Tort Claims Act, and it is the Federal law that provides a legal outlet for people who have suffered injury, illness, or death due to the direct actions or inactions of a Federal employee. These claims generally stem from wrongful acts or negligence in these categories:
- Personal Injury
- Wrongful Death
- Property Damage
- Property Loss
Without the FTCA supporting military personnel, Federal government employees cannot be sued due to sovereign immunity. This immunity prevents the United States government from being sued without consent and it extends to all civil lawsuits. However, the FTCA waives the immunity doctrine allowing medical malpractice suits to be filed. It is still a complicated process, so always have a specialized lawyer review your case.
What To Know Before Filing?
No one likes to be held responsible for a significant injury, illness, or death. Therefore, any malpractice suit is difficult to file and prove. With military cases, there are competing doctrines and acts to protect both sides of the situation. The FTCA opens the ability to file claims, and the Feres Doctrine places limitations on claims that qualify. This doctrine was put in place in 1950 and prevented millions from being able to seek financial assistance in negligent or wrongful act situations. To counter the Feres Doctrine, the National Defense Authorization Act was put into place in 2020 to help active servicemen out.
National Defense Authorization Act
From 1950 to 2020, service members on active duty were unable to seek compensation for injuries or deaths suffered due to malpractice at military facilities, clinics, and hospitals. President Trump signed the act to allow this group of people to file suits if they do NOT meet the few limitations.
- If the malpractice occurred in a combat zone, a lawsuit cannot be filed.
- Lawsuits may not be filed in Federal Court but can be done through the administrative process.
- The claim must be filed within two years of the malpractice incident.
The two-year statute begins when the serviceman (or immediate family member) should be aware that their illness, injury, or death was due to substandard care. Therefore, seeking professional assistance with claims needs to be promptly after any inadequate care was given. These cases require a full investigation to be performed of your medical history and all records. Most lawyers will evaluate a case for free and will guide you in what steps you need to take.
In addition to a statute of limitations, this act carries with it a statute of repose. This prevents a serviceman’s ability to file a claim if the statute of limitations has been exceeded or there is enough evidence to show there was not enough harm done. Not every state in the United States carries the statute of repose, so consult with an attorney for assistance.
You can fight the statute of repose through Federal Preemption, which causes the FTCA to take precedence in the case. There are varying opinions on using this method, so it is not a guaranteed way around the statute.
If the government fails to raise the statute of repose as an affirmative defense, you may have it waived.
Military Medical Malpractice Case Examples
While it is a complicated process and professional assistance should be consulted, the FTCA opens the ability to seek compensation for a variety of medical malpractice cases. A few examples of claims include:
- Head injuries
- Brain injuries
- Spinal cord injuries
- Birth injuries
- Failure to diagnose.
- Wrongful death
- Wrong surgery site
- Incorrect incisions
- Damage to organs
- Unsterilized equipment used.
- Unnecessary long surgery
- Mishap during surgery
- Errors with anesthesia or medication dosage
- Surgical items left in surgery site.
- Damage to nerves, tissues, ligaments, or muscles
- Avoidable amputation
- Avoidable infections
- Elongated illness due to substandard care
Facilities That Fall Under Military Medical Malpractice Claims
For a person to file a military medical malpractice suit, they must have received care in a facility for servicemen. This includes any clinic, facility, or hospital that only allows patients who are active duty, reserves, retired, or veterans of the Army, Navy, Marines, or Air Force. For one example, the VA (Veterans Affairs) is a military medical facility.
Filing A Claim Of Military Medical Malpractice
Prior to filing a claim, consider the following:
- The claim is time-sensitive so seek professional help early.
- All claims need filed within two years and enough evidence must be presented to show malpractice caused significant harm.
- Start gathering documentation and evidence early, as there will be a thorough investigation of all medical records and treatment.
- You must go through administrative claims process and not Federal Court.
If you and your lawyer have decided that there is sufficient evidence supporting your claim, you are ready for the next step in the journey. You will be required to fill out a Standard Form 95. This form gathers the following information:
- Your personal information
- Where the accident or incident took place
- When the accident or incident occurred
- How much you are seeking in compensation.
- Information on the property or personal damage done.
- Information on any witnesses
- Your insurance information
They will review all physician’s reports, medical bills incurred, amount of lost wages sustained, and estimates for any property damage (if included in the lawsuit). Finally, the review board will also check the location of where the care was given, if the caregiver was an employee or an independent contractor, and where the claim is being filed. All investigations must be completed within six months. You may be offered a settlement (in which you can refuse and take to court), or your case can be denied.
The most time-consuming part is the investigation, so the more information you can provide your attorney at the beginning will help with the process. Retain all invoices and receipts for treatment, prescriptions, or visits you make. If you are missing work due to prolonged illness or injury, inform your boss to keep records of wages you are missing out on. This includes having to use short term disability that you would not otherwise have to burn.
Following the review of the form, the US Attorney will investigate to ensure the case cannot be resolved outside of court. The US Attorney has complete authority to settle the case within a specific budget but can seek higher authority approval if higher compensation is necessary. If it is deemed the case cannot be settled out of court, a case will be filed and treated as a traditional malpractice suit. The court can then order mediation to attempt resolution or proceed to trial. During trial, the plaintiff can ask for both economic and non-economic compensation. The economic damages include anything financially related, while non-economic are for mental anguish, disability, or pain and suffering. The judge is the final decision on the amount of compensation the plaintiff is due for damages incurred. Finally, if a death occurred, the surviving family may demand wrongful death compensation. The amount is specified by each state law and determined on a case-by-case basis.
As mentioned above, the entire process is more complex than a traditional malpractice case. Therefore, servicemen should always seek the counsel of an attorney for the best chance at success in filing a Military malpractice lawsuit