New rule to allow medical malpractice claims against the Defense Dept.

A new policy allows service personnel to file claims against the Defense Department for medical malpractice. Photo courtesy of U.S. Army
A new policy allows service personnel to file claims against the Defense Department for medical malpractice. Photo courtesy of U.S. Army

June 18 (UPI) -- New rules were issued this week for military personnel seeking to charge the government for medical malpractice, a change from a policy begun in 1950.

The guidelines, published Thursday in the Federal Register, take effect in 30 days and allow military personnel, their heirs or their estates to take the Defense Department to court over "personal injury or death caused by a Department of Defense 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," the Federal Register guidelines say in part.

The ability to seek damages in court for medical malpractice overturns a precedent set by the U.S. Supreme Court known as the Feres Doctrine.

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The court ruled in 1950 that the federal government could not be held liable for injuries to service personnel related to military service.

That policy was mitigated by disability insurance compensation and life insurance payments, and ensured that command decisions would not be litigated in civil courts.

But the legal rule has been broadly applied, since 1950, to include training accidents, sexual assaults, medical malpractice and other incidents far removed from battlefields.

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The new rules are quantified in the 57-page Federal Register filing, heavy with legal jargon, which identifies situations under which claims can proceed.

Notably, the process is one of claims, not of courts, and the bureaucracy of the Defense Department -- not identifiable judges or arbitrators -- will determine the merits of each case.

Reservists can only submit personal injury claims while on active duty. A two-year deadline has been established for filing claims, in most cases.

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Additionally, claimants must submit evidence that health care professionals, who can attest that military health care providers offered substandard care, were consulted. The government will calculate the economic damages to be awarded, if any.

Any prior compensation paid by the Defense Department of the Veterans Affairs Department will be deducted so "the U.S. does not pay more than once for the injury," the notice states.

"The entire claims process is enshrouded in darkness," Dwight Stirling, the CEO of the Center for Law and Military Policy, told Task & Purpose. "Due to the vagueness of the rules, claims can be evaluated by nameless officials in secretive offices."

"Who will be on the [adjudicating] panels?" he added. "What are their qualifications and biases? Did they question the physician's account of what happened or simply take it at face value?"


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