Active Military, Can I File a Medical Malpractice Claim

I’m Active Military, Can I File a Medical Malpractice Claim?

19 October

Although there are exceptions, as a general rule, active members of the military are barred from bringing claims of medical malpractice against medical personnel for treatment received at Department of Defense or VA hospitals or other military health care facilities. We invited our Hawaii medical malpractice attorney from Kurzban, Kurzban, Tetzeli, and Pratt, P.A., to explain how medical malpractice cases play out when active military personnel is involved.

Military Personnel and Medical Malpractice

The Feres Doctrine precludes active-duty military personnel from suing when they are injured by a military doctor or other medical staff at a federal facility. This doctrine derives from Feres v. United States, a 1950 case decided by the U.S. Supreme Court. In this case, SCOTUS decided that all active military personnel are precluded from suing the federal government for damages that result from their service, and this includes injuries that are caused by medical negligence. Likewise, Feres bars active-duty military personnel from filing claims of wrongful death against the U.S. government even when that negligence leads to their death.

Supreme Court Asked to Revisit Feres

In October 2018, SCOTUS was asked to review a wrongful death lawsuit that was filed by the family of Lieutenant Rebekah Daniel, a labor and delivery nurse with the U.S. Navy who died shortly after giving birth to her baby in 2014 at a naval hospital. Her family believes that her death was the result of medical malpractice; they allege that Daniel bled to death because the well-known standards of postpartum hemorrhage were not followed in her case. They wish for the court to review the outdated precedent set by the Feres Doctrine so that they can recoup damages for the loss of a mother and wife. The family argues that the negligence causing Daniel’s death was not related to her service in the military, so it doesn’t fall under Fares.

Daniel’s case has already made its way through the lower courts. The Ninth Circuit Court of Appeals ruled in May 2018 that the case fell within the Feres Doctrine’s constraints, since they are bound by the original SCOTUS decision in the 1950 case. As it works its way back through the Supreme Court, it remains to be seen if the original doctrine will be overturned or not, and that’s only if the court agrees to hear oral arguments in the case. The court only hears arguments in around one percent of the 8,000 petitions it receives annually.

So, Who Can Sue Military Doctors?

Although each case is unique, military dependents, including the husbands/wives and children of active-duty service personnel can sue military doctors and other military medical personnel for medical malpractice. Military veterans and retired military personnel injured in VA hospitals and other federal health care facilities also retain their rights to sue.

If you believe that you were injured as a result of medical malpractice, consult with our medical malpractice attorney right away. Your consultation is free and confidential, and our seasoned medical malpractice attorney can help get the ball rolling in your case and assist you in getting the compensation that you deserve for your injuries.

Contact jed kurzban

While this website provides general information, it does not constitute legal advice. The best way to get guidance on your specific legal issue is to contact a lawyer. To schedule a meeting with an attorney, please contact us.

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