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New for 2020: Here’s why troops can’t sue the military for medical malpractice, and how that’s changing

Joining the military comes with a certain understanding of risk to life and limb. But did you know that service members, or their families on their behalf, can’t always sue the military if they are injured, permanently disabled or killed because of negligence off the battlefield?

Many troops and their families don’t find out until they try to file a claim.

Becket Kiernan was a Marine private first class when he died of a flesh-eating bacterial infection. When his mother tried to file a claim against the government, she heard the term “Feres Doctrine” for the first time.

"What I care about is that the Navy hold its medical staff accountable the same way that their medical staff would be accountable if it was a military spouse or a child,” she told Military Times in November. “For some reason, they treat active military members as a different class of patient, a different class of people.”

Congress partially overturned the doctrine, prohibiting troops from filing negligence lawsuits against the military, in December, when it voted on a defense authorization bill that allows victims to file claims in cases of medical malpractice, but not in other circumstances.

Service members have also been shocked by Feres. Capt. Katie Blanchard, an Army nurse who was set on fire by a civilian subordinate at Fort Leavenworth, Kansas, in 2016. Two years later, she filed a claim against the post, alleging that her chain of command’s negligence had played a role in her permanent burn injuries, and the government should be held liable for her loss of income from having to leave nursing, as well as medical expenses that Tricare refused to cover as well as the cost of securing childcare for her three sons as she undergoes surgery after surgery on her skin

“Is it okay for us to have gross negligence and zero accountability in the military? Because if you look at my case, that’s what it is,” Blanchard told Army Times in a Wednesday phone interview. “Zero accountability for the way they treated me and the things that they missed that will forever affect my life.”

Who was Feres?

“Feres v. United States," decided in December 1950, went all the way to the Supreme Court. The case started as a lawsuit against the federal government after the death of 31-year-old Army Lt. Rudolph J. Feres, who was killed in a barracks fire at Pine Camp, New York, in 1947.

His widow sued under the Federal Tort Claims Act, which allows plaintiffs to seek damages from the government in negligence cases. She alleged that his chain of command knew that the barracks were unsafe due to a faulty heating system and an ineffective overnight watch to catch any emergencies.

Five junior officers died in the blaze, and according to the Army, it took 45 minutes for firefighters to arrive on scene.

By the time it reached the Supreme Court, two other complaints had been tacked onto the Feres case — both originally against Army medical personnel. In 1945, according to a case on behalf of Arthur Jefferson (he was enlisted, but his rank is unknown), an Army surgeon left a 30-by-18-inch towel inside the soldier’s abdomen after performing a gallbladder surgery.

And finally, Army Lt. Col. Dudley A. Griggs’ widow filed suit after he died from complications during surgery in 1947, alleging medical malpractice.

What does the doctrine do?

When the Supreme Court ruled on the Feres case, they established that service members cannot file for damages under the Federal Tort Claims Act, regardless of whether death or injuries occurred on the battlefield or at the hands of military doctors attending to routine health matters at home.

Supporters of the policy have argued that the military has systems in place to deal with these types of cases.

On top of providing health care free of cost to service members, service-connected disabilities are grounds for both pay and medical care after service members are discharged. In the case of death, the Defense Department pays out a $100,000 gratuity to the service member’s next-of-kin, and Servicemembers Group Life Insurance ― which is not required but that troops must opt out of if they don’t want to pay into it ― pays out another $400,000.

Supporters have argued that allowing further claims would create an unequal system of payouts for victims and their families.

“We have compensation for people who are killed or injured in the military," Sen. Lindsey Graham, R-S.C., has said of his support of the Feres decision. "We’re not going to open Pandora’s box.”

Further, there is the military justice system, as well as administrative tools, to hold accountable leadership whose poor judgment ends in disaster for their troops. But those consequences are completely at the discretion of the chain of command, and don’t allow service members to directly make their cases, critics argue.

“Is it okay for us to have gross negligence and zero accountability in the military? Because if you look at my case, that’s what it is,” Blanchard told Military Times in 2018, after her leadership at Leavenworth were allowed to continue onto their next assignments and promotions. “Zero accountability for the way they treated me and the things that they missed that will forever affect my life.”

How is it changing?

As recently as early 2019, service members have attempted to file suit against the military for their injuries and overturn Feres, totaling a dozen lawsuits in the past 70 years. Though courts have been reluctant to overturn legal precedent, Congress did make some headway in the final days of this year.

The 2020 National Defense Authorization Act includes a provision allowing service members to file claims against the Defense Department specifically in cases of medical negligence or malpractice.

It was a compromise inspired by another bill, named for Special Forces soldier Sgt. 1st Class Richard Stayskal, whose terminal lung cancer went undiagnosed despite a noted mass and recommendations for a biopsy after a CT scan.

Rep. Jackie Speier, D-Calif., introduced the SFC Richard Stayskal Medical Accountability Act as an add to the NDAA in April. It was the second legislative attempt to date, 10 years after the Carmelo Rodriguez Military Medical Accountability Act, which never made it to a vote.

Rodriguez, a Marine Corps sergeant, died of skin cancer in 2007. According to his case, the Navy doctors had noted lesions on his skin that suggested malignant cells over the course of eight years, but had never recommended him for further screening or informed him of his risk.

Now, services members and their families ― like Rodriguez, Blanchard, Kiernan and Stayskal ― have two years after an incident to file a claim. Once reviewed and approved by the defense secretary, DoD can directly pay out up to $100,000 to settle a claim. Beyond that, the case will be referred to the Treasury Department for payment.

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