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How the 2020 NDAA could impact military medical malpractice claims

By Medical Malpractice Attorney John Fisher of John H. Fisher, P.C.

Photo Credit: Peshkova/iStock Photo

Many active duty service members face increased risks to their health that require medical treatment. Until recently, members of the Armed Forces were barred from filing claims against the federal government for medical negligence. However, the 2020 National Defense Authorization Act (NDAA) could allow servicemembers to seek compensation from the government for medical malpractice.

A provision of the NDAA, signed into law in late 2019, designates the Department of Defense with the role of investigating medical malpractice claims. Servicemembers may be able to file a claim if they experienced negligent or wrongful treatment by certain government health workers. This includes government doctors, dentists, and other medical professionals. Essentially, this new provision might help to keep the federal government accountable for medical malpractice.

The 2020 NDAA modifies rules laid out under the Feres Doctrine. The Feres Doctrine previously barred active duty service members from suing the federal government for injuries related to military service — which included medical malpractice, as well as other related injuries.

Despite the change that the 2020 NDAA brings, there are a number of limitations to this new provision. A service member must bring a claim before the government within two years of when the malpractice occurred. Additionally, servicemembers cannot file a claim for medical malpractice that occurred in an active combat zone. Claims pertaining to this provision must be examined through an administrative body, rather than a federal court, substantiated by the Department of Defense.

The Department of Defense is, “liable for only the portion of compensable injury, loss, or 22 damages attributable to the medical malpractice of a Department of Defense health care provider.” They also cannot be held liable for attorney fees or future loss of income, two types of damages and compensation frequently sought in personal injury cases. It is also stated that the majority of claims will be limited to a settlement of $100,000 or less, but the Pentagon could authorize a larger amount in some cases if desired.

Background of the 2020 NDAA Provision

These changes stem, in part, from Representative Jackie Speier of California. Speier introduced the SFC Richard Stayskal Military Medical Accountability Act (Stayskal Act) in 2019. The act would have allowed claims related to the injury or death of members of the Armed Forces against the federal government.

The Stayskal Act was named in memory of Richard Stayskal, who passed away from lung cancer that was originally misdiagnosed as pneumonia by government medical officials. The misdiagnosis was not identified until Stayskal’s cancer had grown and spread to other parts of his body. At the time, Stayskal and his family were unable to sue the federal government for the misdiagnosis under the Feres Doctrine. He spent his remaining time after the terminal cancer diagnosis trying to overturn the Feres Doctrine. The 2020 NDAA Provision is a compromise to what the Stayskal Act had been trying to accomplish, but it provides some ability for service members to file a claim for medical malpractice.

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