Members of the military have the right, just as civilians, to competent medical care. Should a member of the military suffer an injury due to medical negligence of a military doctor, then a claim of medical malpractice may be filed.
However, military doctors are protected from medical malpractice lawsuits by laws specifically written for them. There are, however, ways to get around these laws that allow military members and or their family members to file a medical malpractice lawsuit in federal court.
In cases of military medical malpractice, the lawsuit will hold the US government liable for the negligence of the military doctor. However, the first thing a medical malpractice lawyer will need to do is establish the right to file the suit even in the presence of something called the Feres Doctrine.
The Feres Doctrine effectively bars members of the military from filing a medical malpractice lawsuit, or any type of personal injury suit, against the government for injuries sustained while on active duty.
The case of Feres v. United States took place in 1950 in the supreme court, bars active military personnel from filing a medical malpractice claim against the US government. However, the doctrine states that each case must be considered individually, and does not provide any strict rules as to which cases should be allowed.
The Feres Doctrine was written to prevent civilian courts from questioning the decisions made by military commanding officers. If these cases were allowed, commanding officers would have to convince civilian juries that decisions made were indeed correct. It is thought that this would diminish the decision making ability of said officers, and would impact the effectiveness of the US military.
The federal tort claims act is a series of laws governing lawsuits against the US Government, and providing protection for civilians and military personnel injured by government employees and representatives.
Under the FTCA, injured parties have only two years to file a suit for damages against the government. Since VA hospitals and other military medical clinics are part of the US government, this applies to anyone injured through the medical negligence of a military doctor.
The FTCA applies to all non-active military members who have been caused an injury through medical negligence. Active members of the military may be barred by the Feres Doctrine, although each case must be determined on a case-by-case basis.
The Feres Doctrine does not bar inactive military personnel from bringing a medical malpractice lawsuit. This is often the case for medical malpractice lawsuits occurring in many military hospitals.
Non-active military personnel are often treated at military hospitals for the rest of their lives, and as such, are at risk of military medical negligence. Victims of medical negligence in a military hospital may file a suit under the Federal Tort Claims Act for medical malpractice.
Retired military personnel are not covered under the Feres Doctrine, so they are protected by the FTCA, and can bring a lawsuit against the government.
Additionally, a wrongful death of a retired military member may be brought on his or her behalf by their family members.
If the dependent of a military member, active or non-active, is treated by a military doctor or hospital and negligence occurs, a malpractice lawsuit may be filed.
Either the patient, or the military member may file the lawsuit and will not have any issues relating to the Feres Doctrine.
The issue of military medical malpractice is one that can only be dealt with on a case-by-case basis by an experienced medical malpractice lawyer. Any military personnel, or military dependents injured by medical malpractice are highly encouraged to talk to a medical malpractice lawyer to get answers regarding their legal rights.