Troops can finally file medical malpractice lawsuits against the military. Here is how

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The Department of Defense will officially release the rules governing how uniformed soldiers or their representatives can bring actions against the military for misconduct on Thursday.

The new ordinance, which will come into effect 30 days after it was published in the federal register on Thursday, marks a significant step in the ability of military personnel or families to appeal for misconduct. A preview was posted online on Wednesday morning.

For decades, the Feres Doctrine – named after a plaintiff in a landmark 1950 US Supreme Court case – has deterred active service members from suing the government for personal injury sustained in their service. This made it difficult for military personnel to seek recourse to the military if their medical treatment was mishandled.

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But the National Defense Authorization Act, passed by Congress in December 2019, contained provisions to change that. Service members – or their representatives, if dead or incapacitated – could bring claims of assault or death caused by a military health care provider in certain medical treatment facilities.

The Bloomberg administration reported in February that troops had filed 227 malpractice lawsuits that have not yet been resolved, with a total potential value of $ 2.16 billion. The Pentagon has not yet provided updated statistics.

The new claims procedure is granted in addition to the compensation under the compensation system of the military, which, according to the federal register extract, also covers combat injuries, training accidents, car accidents or other deaths or disabilities in service. It’s separate from the Military Health System’s Medical Resolution Program, which helps patients get more information about medical treatments that may have gone wrong, but it’s not a way to file claims or file legal matters.

There will be no judicial review of the settled claims, the federal register’s notice states, and their settlement will be “final and conclusive.”

There are a few exceptions. Claims that challenge the discretionary agency’s policies, known as a discretionary exception, cannot be honored, the notice said.

The exception rule for fighting activities also applies, but this would probably only take place under “extremely unusual circumstances such as an attack on a hospital”.

To be considered, medical malpractice claims must apply to injuries that were recorded in the registry as “related to an accident at work”. For active duty members, this means that “almost any injury or illness” experienced through medical care in a military treatment facility from a DoD health provider would qualify.

Stricter rules apply to reservists. A claim can only be asserted if the member has suffered personal injury or death as part of a federal employment relationship.

The new application process is a last resort for those who have suffered medical malpractice; The notice states that claims will only become due if they cannot be settled or paid under other laws.

The Department of Defense pays claims under $ 100,000 directly to service members or their estates. However, claims greater than $ 100,000 will be reviewed and then paid by the Treasury Department.

Malpractice claims should be filed with the service member’s branch, the notice states. For the Army, this would be the nearest Staff Judge Advocate Office, the Center Judge Advocate of the medical center where the alleged wrongdoing occurred, or the Illicit Claims Division of the Army Claims Service in Fort Meade, Maryland.

Navy and Marine Corps claims should be filed with the Illicit Claims Department of the Office of the Judge Advocate General in Norfolk, Virginia. Air Force and Space Force claims should be submitted to the Office of the Staff Judge Advocate of the nearest Air Force base or mailed to the Air Force Legal Operations Agency, Claims and Tort Litigation Division, Joint Base Andrews, Maryland.

The new rules set a strict deadline for filing claims. Service members must file their claim with the DoD within two years of the alleged misconduct, although the NDAA allowed service members whose misconduct occurred in 2017 to file claims in 2020.

Any written claim from a service agent or authorized agent will suffice as long as it contains the basis for the claim, including the alleged wrongdoing, the amount of damages claimed in US dollars, and is signed by the claimant or their agent. Claims must include an affidavit, when submitted by an attorney or authorized representative, certifying that they are authorized to do so on behalf of the service member.

And unless the claim covers something that a normal layperson can identify as medical malpractice, it must include an affidavit from the claimant stating that he or she has consulted a doctor who believes that the military is the military one Healthcare provider violated the standard of care and caused the alleged damage, according to the statement.

Since applicants bear the burden of proof for their claims, the notice states, they can also submit any information and documents they believe are necessary to substantiate them. However, an expert opinion is not absolutely necessary at the time of submission, the communication goes on to say.

The plaintiff must provide evidence that the military service provider on duty “had a professional duty to the patient concerned and has violated this duty by act or omission in a way that directly caused the damage,” says the statement.

The care provider is required to exercise the same level of skill, care, and knowledge on behalf of the applicant – based on national standards, not those of any region, state, or location – that are expected of those in their field in comparable clinical settings. It adds.

When calculating economic damage, the government takes into account past medical expenses, as well as future medical expenses, lost earnings, loss of incapacity and compensation paid for someone who performs essential household services and everyday life activities that the service provider can no longer perform for himself, according to the notice .

Non-economic damage also includes past and future pain and suffering, physical disfigurement, and loss of vitality up to a total of US $ 500,000.

Compensation that the DoD or the Veterans Affairs Department has or will pay for the same malpractice damage will be deducted “so that the US will not pay more than once for the injury,” the statement said. This may include, but is not limited to, pay and allowances while in active service or in active status, disability or severance payments, incapacity benefits, involuntary and voluntary separation benefits and incentives or death grants.

The value of Tricare coverage, including Tricare for Life for retirees, dependents or survivors with disabilities, could also be deducted from malpractice compensation payments.

There is no investigative process, the notice says, but applicants can get DoD records that are part of their personnel and medical records.

Anyone who wants to comment has 60 days to do so.

– Patricia Kime contributed to this report.

– Stephen Losey can be reached at [email protected] Follow him on Twitter @StephenLosey.

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