New 2020 Law Provides Justice for Victims of Military Medical Errors
For over fifty years, military medical malpractice claims could not be filed by the victims of medical errors made by military health care providers. It did not matter how serious or permanent the medical injury, or if the patient died as a result. This ban was established by the Supreme Court of the United States in the case of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), in what has become known as the “Feres Doctrine.”
The rationale for this bar against malpractice claims was that the injuries resulted from “combatant activities” and were accordingly exempt under sovereign immunity. However, for many years those who witness the tragedies that can result from medical mistakes have distinguished combat situations from those cases where medical negligence has caused harm in a medical facility that is not involved with any battlefield.
Medical errors made by doctors in Indiana or Illinois, for instance, could result in serious harm or even death of the patient, and whether or not the victim and his (or her) family could seek malpractice claims depended upon whether or not the medical mistake involved a military provider.
Now, things have changed. Military medical malpractice claims will be allowed under federal law.
2020 Medical Malpractice Claims Allowed Against Military Providers
Last month, Congress passed the National Defense Authorization Act (NDAA) as a defense spending measure that included an important provision for anyone who has sought, or will seek, medical treatment from a military doctor or at a military health care facility.
This new federal law removes the absolute bar that had existed for military malpractice claims. Under the 2020 National Defense Authorization Act, military personnel, or their surviving families, will be able to file personal injury claims or wrongful death claims based upon the medical malpractice of a military provider.
Specifically, these military malpractice claims will be available to victims of medical mistakes made by military providers outside of combat zones. The claims can be filed by the patient who has suffered bodily injury as a result of a medical mistake. Claims are also available to grieving loved ones who seek to file malpractice wrongful death actions after the death of the patient.
There is a limitation within the new NDAA provisions, however. The military malpractice claimants cannot seek the same type of damage claims that may be provided to civil malpractice claimants under various state laws (e.g., Indiana, Illinois). The new law goes into detail about what types of damages are covered.
As for filing these claims, military malpractice claims will be screened by the Department of Defense. If the DOD determines that the claim totals anything up to $100,000, then the claim is paid by the DOD. If the claim exceeds $100,000, the military malpractice claim proceeds to the Department of Treasury.
Note: There is a two (2) year statute of limitations (deadline) for filing the military malpractice claim. However, during 2020, the NDAA allows claims to be filed based upon malpractice dating back to 2017.
Where are the Military in Illinois and Indiana?
How does this impact our part of the country? There is a longstanding and dedicated military presence here, involving various branches of the armed forces.
In Illinois, for instance, there is (1) the Army’s Camp Price in Granite City; (2) Scott Air Force Base in St. Clair; (3) the Army’s Rock Island Arsenal in Arsenal Island; (4) the U.S. Coast Guard Station Calumet Harbor in Chicago; and (5) Great Lakes Naval Station in North Chicago.
Indiana’s active military can be found at places like (1) Grissom Joint Air Reserve Base in Kokomo; (2) the Army’s Camp Atterbury in Edinburgh; (3) the U.S. Coast Guard Station on Lake Michigan, Indiana; and (4) the Naval Service Warfare Center (NSWC) Crane Division in Martin County. Of note, the NSWC is heralded as the 3rd largest naval installation in the world geographically, covering over 100 miles including the entire 800-acre Lake Greenwood.
Military Hospitals and Medical Malpractice Claims in Indiana or Illinois
Moreover, there are a great many facilities providing medical care as part of the military activities here in Illinois and Indiana.
Military health care facilities can range from the small clinic on a base or post focusing upon the care and treatment of active duty personnel, to a large Veteran’s Hospital serving our veterans.
According to USHospital.Info, there are 10 military hospitals in Illinois and 3 military hospitals in Indiana:
- 375th Medical Group – Scott Air Force Base, Illinois
- Edward Hines Jr. VA Hospital – Hines, Cook County, Illinois
- Jesse Brown VA Medical Center – Chicago, Cook County, Illinois
- Marion VA Medical Center – Marion, Williamson County, Illinois
- Naval Health Clinic Great Lakes – Naval Station Great Lakes, Lake County, Illinois
- Naval Reserve Fleet Hospital Great Lakes – Naval Station Great Lakes, Lake County, Illinois
- North Chicago VA Medical Center – North Chicago, Lake County, Illinois
- Scott AFB Hospital – Scott Air Force Base, Illinois
- VA Great Lakes Health Care System (VISN 12) – Hines, Cook County, Illinois
- VA Illiana Health Care System – Danville, Vermilion County, Illinois
- Richard L. Roudebush VA Medical Center – Indianapolis, Marion County, Indiana
- VA Northern Indiana Health Care System – Fort Wayne Campus – Fort Wayne, Allen County, Indiana
- VA Northern Indiana Health Care System – Marion Campus – Marion, Grant County, Indiana
Claims Based Upon 2020 NDAA Military Malpractice Laws
In the future, victims of military malpractice will be able to file claims for damages under the new 2020 legislative revision of the longstanding Feres Doctrine.
These claims can be filed by attorneys in private practice with experience in medical malpractice injury cases. And while there is a distinction upon which agency (DOD, Treasury) determines the claim, the new law does not set any cap on the maximum award that can be paid under the new military malpractice law.
For more on the backstory of this new legislation, read “Terminally ill Green Beret wins victory in battle to file claim against military for alleged malpractice,” written by Ella Torres and published by ABCNews on December 11, 2019.
For more on medical malpractice in Indiana or Illinois, read:
- Medical Malpractice in Illinois and Indiana: Botched Surgeries, Nursing Home Neglect, and More
- Hospital Malpractice: Patient Deaths during Hospital Stay in Indiana or Illinois
- Medical Errors Killing Patients: How Serious is the Risk of Death from Medication Mistake in Illinois or Indiana?
- Danger of Dying from Medical Error: Patient Safety and Preventable Malpractice Deaths
- Medical Error Cause of Patient Death: the Malpractice Epidemic.
Medical errors are the number one cause of preventable death in this country, as discussed in our previous post. It is vital that malpractice victims have access to justice in the aftermath of a medical mistake. Please be careful out there!
