If you are in the US military and are injured due to negligent medical treatment in the hands of military healthcare workers, you can recover damages. But you may not be able to sue civilly, depending on how and when you were hurt. Medical malpractice suits are barred for active duty military injuries, although there are alternative means to recover.
It’s not impossible to get around the prohibition on suing military doctors for medical malpractice, but your lawyer will likely have to do some fancy legal footwork, and much will depend on the context of your injury. Let’s look at some of the relevant doctrines.
The Feres Doctrine
The Feres doctrine arises from the 1950 case Feres v. United States, which bars active military personnel from filing a medical malpractice claim or recovering for medical negligence under the Federal Tort Claims Act (FTCA) for injuries sustained in the course of active duty. But the case also says that each case must be considered on an individual basis without providing strict or explicit guidelines for when it might be appropriate to file.
The limitations on lawsuits for medical malpractice for injured active duty personnel is meant to protect military officers from the retrospective scrutiny and second guessing of civil courts. But that doesn’t mean that those injured while in the military have no recourse at all.
What Recourse?
First, active duty personnel can seek to recover up to $100,000 under the Military Claims Act. That law dictates the process for claims for those still in the military.
Second, veterans can sue for medically negligent treatment in a government hospital under the FTCA, but only after first filing an administrative claims and, even then, only after a certain amount of time has passed.
Many veterans do continue to get treatment in military hospitals for the rest of their lives, so this is an important point. Claims under the FTCA must be filed two years from the injury, and failure to file timely can limit the ability to sue civilly too — prospective plaintiffs must also wait at least six months after filing an administrative claim to file a suit.
Talk to a Lawyer
If you are a member of the military, active or inactive, or a military family member who is treated at government hospitals, talk to a lawyer. Suing the government and its workers is not like suing any other entity and there are numerous points to consider. Get help navigating this particularly tricky area of the law. Many injury attorneys consult for free or a minimal fee and will be happy to assess your case.
Related Resources:
- Have an injury claim? Get your claim reviewed for free. (Consumer Injury)
- What Is a Military Enlistment Contract? (FindLaw’s Learn About the Law)
- How Do I Get a Discharge Upgrade? (FindLaw’s Learn About the Law)
- Administrative Separation: The Basics (FindLaw’s Learn About the Law)
