Military personnel seeking treatment at a military or veterans facility have a right to safe, competent medical treatment. When this right is compromised, patients are entitled to file a lawsuit for medical malpractice. However certain statutes (the Feres Doctrine) prevent individuals on active duty from filing such claims.
A patient may bring a medical malpractice claim whenever the patient suffers from an injury or illness caused by the carelessness of a military health care provider. Military malpractice lawsuits most often result from a health care professional’s failure to prevent infection, provide regular testing or properly administer medications.
Military facilities such as the Veterans Administration (VA) hospitals are federal agencies. As a result, if there is a lawsuit it is suing the federal government. The only time this does not apply is if the health care provider is an independent contractor. There is a term called “sovereign immunity” that protects the government from such lawsuits. The FTCA, Federal Tort Claims Act, is an exception to sovereign immunity and does allow military personnel to sue the federal government for personal injuries.
The FTCA applies to all non-active military personnel who have received substandard medical care from military facilities located within the United States. Thus, not everyone who has suffered from military medical malpractice may sue under the FTCA. The "Feres Doctrine" prevents military personnel from bringing medical malpractice claims for treatment received while on active duty. Dependents of active duty military personnel, such as spouses and children, are not barred from bringing claims under the FTCA.
Also, the FTCA's "foreign country" exclusion prevents military personnel from pursuing claims suffered outside of the U.S. This applies even if treated on a U.S. military base. Those who have suffered from military medical malpractice outside of the U.S. may file under the Military Claims Act.
The statute of limitations for bringing a medical malpractice claim under the FTCA is two years from the time a plaintiff learns of the existence and cause of the injury. Eligibility for the FTCA requires an administrative claim for the entire amount of the damages suffered. The lawsuit may be filed on a Standard Form 95, available in most government agencies. Any awards given will be limited to the amount listed on Form 95 so this form should be considered carefully.
The medical facility in question has six months to review the claim and then decide what action is necessary. Sometimes the facility will pay the full claim amount, settle the claim for less than the requested amount, or reject the claim. Failure to respond within the six month period is seen as a rejection of the claim.
If the medical facility rejects the claim, the FTCA then requires the patient to file a lawsuit in federal court within a six month time period. There is no such thing as a jury trial under the rules of the FTCA. Thus, a judge will determine whether and to what extent the federal government will be liable for the plaintiff's injuries.
If you feel that you or a loved one has served in the military and has been harmed in a military facility (not while on active duty) you may be eligible for damages. Call the Sweeney Law Firm and let our experts review the facts. You may have a military medical malpractice case. If we decide to accept your case, we work on a contingency fee basis, meaning there is no fee for representation unless there is a settlement or fund recovery made on your behalf.