Active duty can sue for malpractice at Wright-Patterson

There has been a big change in how active duty military members can receive compensation for malpractice injuries. This will have a big effect on military members who are the victims of malpractice at Wright-Patterson.

The 2020 National Defense Authorization Act permits active duty military personnel and their next of kin to file claims for death or personal injury caused by military medical providers. Historically, military members have been blocked from filing such claims under the Feres doctrine, named for the plaintiff in Feres v. United States, the 1950 Supreme Court decision that ruled active duty military personnel could not hold the federal government liable for personal injuries that they suffered incident to service. The new law is named for someone who had a $5 million claim for negligence by Army physicians who failed to recognize a growing lung mass as cancer and instead diagnosed the former Marine and Green Beret with pneumonia. He now has stage 4 terminal lung cancer.

The new legislation lets service members hold the federal government liable for medical malpractice at Wright-Patterson and other bases, but the law comes with significant limitations:

  1. Service members will still not be able to file medical malpractice claims for personal injuries caused by medical malpractice in a combat zone;
  2. Service members will not be permitted to sue in federal court. Their claims must be adjudicated administratively.

A substantiated claim under $100,000 will be paid directly to the service member or a surviving beneficiary by the Department of Defense. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Victims have two years from the date of injury to file a claim.

The resulting legislation still does not permit troops to file civil suits against DoD, but it does provide a means for them or their families to seek compensation. The new law designates $400 million to the Pentagon to investigate claims and award compensation. It gives victims two years after the malpractice incident to file a claim, with the exception of this year. Those filing a claim in 2020 can seek redress for incidents dating to 2017.

An ongoing U.S. News investigation of military surgery has found that risky surgery is commonplace in military medical institutions such as Wright-Patterson. For instance, an analysis of five years of data from every military hospital worldwide found that surgeons in every branch of the military perform complex, high-risk operations on active-duty personnel, their family members and some retirees in such small numbers that they may put patients at risk.

Under the new provision, which goes into effect Jan. 1, military members who are victims of medical malpractice will file for compensation just as they would for workmen's compensation.The amount of the awards will be determined by federal court data. If the average compensation for a lost arm in the federal court system is $20 million, a soldier who lost an arm due to medical malpractice in a military hospital would receive $20 million.

This entry was posted in: Blog, Medical Malpractice, Veterans Administration