Getting out, military health issues - Air Force Times

Malpractice

A 1950 Supreme Court ruling known as the “Feres doctrine” forbids active-duty people from suing the government for medical malpractice or almost any other reason.

Active-duty members can be compensated in other ways for malpractice — retirement disability, for example. If they are severely injured by malpractice, they are entitled to certain Social Security and VA benefits.

A federal appeals court in early 2002 carved out an exception to the Feres doctrine, ruling that service members can sue the government if their privacy rights have been violated.

While active-duty members cannot sue the government for malpractice, family members and retirees can sue for personal injury compensation in cases of medical malpractice or other negligence by a government employee.

Administrative claims must be exhausted before an individual goes to court with a lawsuit, and many states place ceilings on the amount that can be paid in malpractice cases.

To file a claim, family members and retirees fill out a form at a base claims office, stating the basis for their belief that malpractice occurred and asking for a specific amount in damages.

A claim must be filed within two years of the alleged malpractice. Retirees can file only for malpractice that occurred after they retired. Most of the military’s legal powers in such cases are on the government’s side. Military lawyers can help an alleged malpractice victim file such claims but cannot officially represent the victim. Local lawyers for the military can settle claims for small amounts, but most malpractice claims are forwarded by base officials to their respective service’s main office.

The military has six months to review a claim. If a settlement offer is unsatisfactory, individuals can negotiate for more. If still unsatisfied, they can go to court. Also, if the military makes no offer within six months, individuals can sue.

In 1991, the Supreme Court ruled that military family members cannot sue service doctors overseas. However, in cases of medical care provided overseas, family members may file administrative claims for compensation.

In these cases, family members dissatisfied with a claims decision can appeal to the service secretary or judge advocate general, depending on the size of the claim. The decision in such an appeal is not subject to court review.