New law may allow medical malpractice claims by non-combat servicemembers

By Michael Warshauer

On December 20^th, 2019, President Donald Trump signed the 2020 National Defense Authorization Act into law. The bill, which saw significant bi-partisan support in both the Senate and House of Representatives, laid out new policies, programs, and activities for the Department of Defense (DoD) for the 2020 fiscal year.

Included in the 2020 National Defense Authorization Act (NDAA) was a provision that provided the DoD with $400 million to internally investigate military medical malpractice claims and award damages to servicemembers who have been victims of negligence. This change to the DoD policy creates an exception to the Feres Doctrine, which upheld a longstanding rule of barring non-active servicemembers from pursuing liability damages resulting from medical professional’s negligence.

History of Feres Doctrine

Before the 2020 NDAA was signed into law, many servicemembers across the country were unable to sue the federal government for the personal injuries they incurred because of negligence. In the 1950 Supreme Court case Feres v. United States, the court found that the United States government could not be found liable for an action or omission under the Federal Tort Claims Act of 1946. Feres v. United States laid out framework that made servicemembers and their family members ineligible to file medical malpractice claims against the government.

Implications of the NDAA

Since the original decision in Feres v. United States, subsequent cases have provided exceptions to the Feres Doctrine allowing some claims to be bought forth by non-active duty servicemembers and their dependents for certain personal injury cases. The 2020 NDAA may open up the possibilities to additional exceptions that allow servicemembers to recover compensation for negligent action, however, some barriers may still exist. There could still be restrictions present that exclude certain servicemembers from receiving compensation.

Under the new law, servicemembers or their families will be able to bring medical malpractice claims pertaining to non-combat related injury or death against the government. Plaintiffs will have a two-year statute of limitations to file a claim. The bill also has an exception allowing a claim to be filed in 2020 up to three years back. This means that a person who was injured or killed in 2017 due to medical malpractice may still be eligible to file a claim. However, injuries or death resulting from medical malpractice related to active duty medical treatment will not be eligible for compensation.

In addition to the statute of limitations and the restrictions on what claims are eligible for compensation, the 2020 NDAA is drawing criticism for other provisions as well. A notable limitation is the requirement that claims must be reviewed by DoD officials. This creates several complications for those who file a claim. Through the process of administrative adjudication, a judge for the DoD will act as the judge in a case filed against their own agency.

Furthermore, in addition to the lack of jury present in these cases, servicemembers who have their claim denied may not be able to take their claim to federal court to appeal. Claimants also have a damages cap that would prevent them from receiving more than $100,000 from either the DoD and the United States Treasury, totaling up to a $200,000 cap in their case.

How the NDAA was Voted into Law

The passage of the 2020 NDAA follows the Richard Stayskal Military Medical Accountability Act of 2019. A longtime advocate of medical accountability in the military, Sgt. 1^st class Richard Stayskal advocated for and attended the passing of the 2020 NDAA in the Senate after his lung cancer was misdiagnosed as pneumonia by doctors in Fort Bragg, North Carolina. Stayskal received praise and media coverage for his advocacy in the changing of military medical malpractice laws.

The 2020 National Defense and Authorization Act was first introduced to the Senate on June 11^th, 2019. After being reviewed and amended by the Senate and committees, the bill was passed with overwhelming majorities. On December 11^th, 2019, the House of Representatives passed the 2020 NDAA in a 377 to 48 vote. Just five days later, the bill passed in the Senate in an 86 to 8 vote.

With the passage of the 2020 NDAA, a new exception to the Feres Doctrine has been created that allows servicemembers to receive compensation for non-combat related military medical malpractice. This success demonstrates how bipartisan change can be achieved on a federal level to benefit servicemembers across the country.

Michael Warshauer is a personal injury attorney with the Warshauer Law Group.