Military Medical Malpractice

Patients treated at a military or veterans facility have a right to safe, competent medical treatment. When this right is compromised, patients are entitled to file a lawsuit for medical malpractice.

Types of Military Medical Malpractice Claims

A patient may bring a medical malpractice claim whenever the patient suffers from an injury or illness caused by the carelessness of a health care provider. Military malpractice lawsuits most often result from a health care provider's failure to prevent infection, provide regular testing or administer proper drugs.

The Federal Tort Claims Act

Veterans Administration (VA) hospitals and other military facilities are agencies of the federal government. Thus, when treatment in such a facility results in a medical malpractice claim, the person bringing the suit (the "plaintiff") must sue the federal government. An exception to this rule exists only if the offending health care provider is an independent contractor. The doctrine of "sovereign immunity" typically protects the federal government from lawsuits. The Federal Tort Claims Act (FTCA), however, serves as an exception to the sovereign immunity doctrine and allows an individual to bring a claim against the federal government for personal injuries.

Who May Sue Under the FTCA

The FTCA applies to all non-active military personnel who have received substandard medical care from military facilities located within the United States. Thus, not everyone who has suffered from military medical malpractice may sue under the FTCA. First, the "Feres Doctrine" prevents military personnel from bringing medical malpractice claims for treatment received while on active duty. Feres v. U.S, 340 U.S. 135 (1950). Dependents of active duty military personnel, such as spouses and children, are not barred from bringing claims under the FTCA.

Second, the FTCA's "foreign country" exclusion prevents military personnel from bringing medical malpractice claims for injuries suffered in hospitals outside of the United States. This exclusion applies even if the medical care was administered on a U.S. military base. Those who have suffered from military medical malpractice outside of the U.S. may file a lawsuit pursuant to the Military Claims Act. Similar procedures are followed when suing under both the MCA and the FTCA. However, if a claim is denied under the MCA, an individual does not have a right to sue the federal government.

Bringing a Claim Under the FTCA

The statute of limitations for bringing a medical malpractice claim under the FTCA is two years from the time a plaintiff learns of the existence and cause of the injury.

Those who are eligible to bring a lawsuit under the FTCA are first required to make an administrative claim for the full amount of damages suffered. This claim may be made on a Standard Form 95, available from the offices of most government agencies. Any damage award received during the course of the proceedings will be limited to the amount stated on the claimant's Form 95. Thus, an individual should be aware of all potential damages before filing a claim.

The medical facility involved in the claim has six months to review the claim and decide how to proceed. The facility may decide to pay the claim in full, settle the claim for less than the requested amount, or reject the claim. Failure to respond to the claim within the six month period is construed as a rejection.

If the agency rejects the claim, the FTCA requires the patient to file a lawsuit in federal court within six months. A plaintiff has no right to a jury trial under the FTCA. Thus, a judge will determine whether and to what extent the federal government will be liable for the plaintiff's injuries.

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