In January 2020, a new federal law replaced a fifty-year old ban on military medical malpractice claims being filed by victims of military health care provider mistakes or errors. The ban was called the “Feres Doctrine,” referencing the Supreme Court of the United States decision in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), and ended with the passage of the National Defense Authorization Act (NDAA).
The 2020 federal law provides that anyone who has sought, or will seek, medical treatment from a military doctor or at a military health care facility can file personal injury claims or wrongful death claims based upon the medical malpractice of a military provider.
However, these military malpractice claims, as defined by Congress in the new legislation, are not the same as those which can be filed by civilian malpractice injury victims in Indiana, Illinois, or other jurisdictions in the United States.
Someone injured during medical care or treatment in a Chicago hospital or Indianapolis clinic, for instance, will have different remedies available to them than someone who suffers comparable harm while they are stationed at places like Scott Air Force Base or the Great Lakes Naval Station in Illinois or at the Naval Service Warfare Center (NSWC) Crane Division in Martin County, Indiana.
The NDAA is specific as to the kinds of damages that can be sought in a military malpractice case. The NDAA also provides that these medical malpractice claims will be processed by the federal government. These are not cases that will be filed in a court for hearing by a judge and jury.
- For more on the NDAA and Military Malpractice Claims, read our discussion in Military Medical Malpractice Claims in Illinois or Indiana.
2021: Federal Guidelines on Filing Military Malpractice Claims Under NDAA
While Congress did enact a new federal law, and while the NDAA has allowed military medical malpractice claims to be submitted for consideration since the NDAA became effective in January 2020, it is only in Summer 2021 that official guidance has been issued on how these claims are to be undertaken by the Defense Department.
The Military Medical Malpractice Claims in Indiana, Illinois, and the rest of the country are to follow the new administrative rule published in the Federal Register entitled “Medical Malpractice Claims by Members of the Uniformed Services” (86 FR 32194). This interim final rule (“Rule”) is effective July 19, 2021.
The Department of Defense explains:
This interim final rule implements requirements of the National Defense Authorization Act (NDAA) for Fiscal Year 2020 permitting members of the uniformed services or their authorized representatives to file claims for personal injury or death caused by Department of Defense (DoD) health care providers in certain military medical treatment facilities. Because Federal courts do not have jurisdiction to consider these claims, DoD is issuing this rule to provide uniform standards and procedures for considering and processing these actions.
2021 Federal Rule for Military Medical Malpractice Claims
This new federal rule details for injured victims, their loved ones, and their advocates on how the U.S. Department of Defense will accept for filing and thereafter process military medical malpractice claims as required by the NDAA. Key provisions of the Rule include the following:
Section 45.1 Purpose
This is a “comprehensive compensation system” provided for military members and their families, independent of the Military Health System Healthcare Resolutions Program, which:
- covers members that are injured or die incident to service;
- applies to all causes of death or disability, whether due to combat injuries, training mishaps, motor vehicle accidents, naturally occurring illnesses, with limited exceptions (e.g., when the member is absent without leave or the injury is due to the member’s intentional misconduct or willful negligence); and
- provides for the possibility of additional compensation beyond that provided by this comprehensive compensation system for personal injury or death of a military member caused by medical malpractice by a DoD health care provider in certain circumstances.
Section 45.2 Claims Payable and Not Payable in General
There are regulations for when claims are payable and not payable. There is a limitation on the amount of attorney’s fees or expenses. If a medical malpractice claim can be settled or paid under any other law, then it will be denied under the Rule.
There is a time limit for when these claims can be filed; as a general rule, they must be filed within two years after the claim accrues. For claims filed in calendar year 2020, the time for filing is expanded to three years. The statutes of limitations established under Illinois or Indiana law do not apply to these claims.
Importantly, the Rule clarifies the following:
The adjudication of claims under this authority is not an adversarial proceeding, there is no prevailing party to be awarded costs, and there is no judicial review. The settlement and adjudication of medical malpractice claims of members of the uniformed services is final and conclusive per 10 U.S.C. 2735.
Section 45.3 Authorized Claimants
The recognized claimants under the Rule are either (1) a member of the uniformed services who is the subject of the medical malpractice claim, or (2) an authorized representative on behalf of a member who is deceased or otherwise unable to file the claim due to incapacitation per Title 10 U.S.C. 2733a(b)(1).
The Rule includes claims of a reserve component member if the claim is in connection with personal injury or death occurring while the member was in a Federal duty status.
Section 45.4 Filing a Claim
The claim itself must be written and include the following:
- The basic information, i.e.: (a) the factual basis for the claim, which identifies the conduct allegedly constituting malpractice (e.g., theory of liability and/or breach of the applicable standard of care); (b) a demand for a specified dollar amount; and (c) the signature of the claimant or claimant’s duly authorized agent or legal representative.
- Additionally, if the claim is filed by an attorney, an affidavit from the claimant affirming the attorney’s authority to file the claim on behalf of the claimant must be included.
- If the military medical malpractice claim is filed by an authorized representative, an affidavit from the representative affirming his/her authority to file on behalf of the claimant must be included.
- Finally, unless the alleged medical malpractice is within the general knowledge and experience of ordinary laypersons, an affidavit from the claimant affirming that the claimant consulted with a health care professional who opined that a DoD health care provider breached the standard of care that caused the alleged harm.
Formal expert opinions regarding the medical errors or mistakes may not be a part of the initial claim. Under the Rule:
- If the claimant is represented by an attorney, unless the alleged medical malpractice is within the general knowledge and experience of ordinary laypersons, the claim must include an affidavit from the attorney affirming that the attorney consulted with a health care professional who opined that a DoD healthcare provider breached the standard of care that caused the alleged harm.
- The DoD is not requiring an expert opinion at the time of filing a claim. The Department may require an expert opinion to be provided during its adjudication of the claim, provided at the claimant’s expense.
The Critical Component of The Military Malpractice Case: No Discovery Process
The Rule is specific that, unlike state medical malpractice claims, the Defense Department procedure will have no discovery process for adjudication of military medical malpractice claims.
However, under the Rule, military malpractice claimants may obtain copies of records in DoD’s possession that are part of their personnel and medical records. As part of the investigation and evaluation of a claim, the claimant can obtain “… pertinent DoD or other available government information systems and records regarding the member in order to consider fully all facts relevant to the claim.”
The Rule allows claimants to submit whatever information and documentation they believe necessary to support their claim, as claimants have the burden to substantiate their claims. It does not provide the claimants with the traditional discovery process in order to get this support to meet their burden of proof.
What is the “discovery process” in civil cases?
In medical malpractice cases filed in the courts of Indiana and Illinois, as well as in any other personal injury proceedings, not only do the injury victims have the ability to seek documentation from those they alleged have caused their harm, but they have the opportunity to question the people involved in the alleged malpractice itself. This can be in the form of written questions (“interrogatories”) as well as formal questions and answers (“depositions”).
The absence of a formal discovery process in the military medical malpractice administrative claims process exacerbates the need for experienced advocates to help injury victims and their loved ones in these proceedings, since they have the duty to prove up their right to justice without the tools provided by the civil discovery system.
Claims for Justice in Military Medical Malpractice Cases in Indiana and Illinois
According to the Rule, these claims are divided by the amount in controversy, set at $100,000.00. From the Rule:
A substantiated claim under $100,000 will be paid directly to the member or his/her estate by DoD. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000.
There is no maximum amount that can be provided as damages in these cases.
Any of these military medical negligence cases can be filed by experienced private practice attorneys with a knowledge of how to investigate and substantiate medical errors as the proximate cause of the victim’s harm.
These claims will have to be documented with properly authenticated evidence. These cases may involve factually complicated matters and the need for specialized medical professional analysis. Under the Rule, this must be done without the help of the discovery tools provided in state civil law.
For more on medical malpractice in Indiana or Illinois, read:
- State Medical Board Oversight of Doctors and Medical Malpractice in Indiana and Illinois
- Medical Malpractice: Injury or Death from Medical Devices
- Medical Malpractice in Illinois and Indiana: Botched Surgeries, Nursing Home Neglect, and More
- Danger of Dying from Medical Error: Patient Safety and Preventable Malpractice Deaths.
Medical errors are the number one cause of preventable death in this country. Our armed services deserve justice when medical malpractice has caused serious harm and allowing them to file for damages in the aftermath of medical malpractice is warranted. Please be careful out there!
