The Feres Doctrine was passed by a Supreme Court ruling in 1950. It pertains to soldiers and other members of the Armed Forces who are in active duty. The policy prevents them from filing lawsuits and claims against the national government on the grounds of medical malpractice. This means that if a military member is injured or dies during service due to circumstances outside the combat zone, they or their family cannot sue the government (Breslauer et al., 2020).
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It precludes the Department of Defense (DOD) liability for injuries or death that occur to military members in their line of work. The doctrine effectively prevents service members from exercising the same rights held by civilians to sue healthcare professionals for negligence and other forms of medical malpractice. However, this law was relaxed last year and will have new legal implications for military medical practitioners.
The Richard Stayskal Medical Accountability Act was included in the National Defense Authorization Act (NDAA) and passed in December 2020. It allows for service members in active duty to file administrative claims against the government for medical malpractice. Military medical personnel will be liable if the service member can prove duty, dereliction, direct causation, and damages (Banhart, 2020). First, Armed Forces medical practitioners have a duty of care to soldiers. They are tasked with providing healthcare to soldiers on and off the battle zone. Second, the service member must prove that the professional failed to provide treatment expected of a competent physician under similar circumstances.
Next, they must prove that they suffered damages such as wrong-site surgery, amputation, childbirth injuries, prescription drug errors, brain damage, or misdiagnosis. Finally, they must show that the damages they suffered were directly caused by a breach of duty by the healthcare personnel. If found liable, the government will pay compensatory damages to the affected parties (Perrone, 2020). Since the law was signed recently, the implication for military medical professionals is not yet fully known.
Although the new law loosened the Feres Doctrine, there are three significant limitations. The first confine is that the Feres Doctrine still protects decisions made in the battle zone (Sifka, 2020). For instance, a doctor might examine a soldier on the field and fail to provide care because they think that they are not likely to survive. Although failure to provide care is a form of malpractice, it took place in the combat zone. The doctrine shields the medical practitioner since they made a judgment call in the face of danger. Second, service members can only file an administrative claim but cannot sue the government or military medical practitioners in federal court (Sifka, 2020).
This makes claims harder to prove because the process typically favors the government. Lastly, there is a 2-year statute of limitation for a malpractice claim. It shelters the government and military healthcare providers from liability two years after an incident occurs.
For seventy years, military doctors have been shielded by the law against malpractice claims. However, this changed late last year when Congress amended the National Defense Authorization Act. Although it does not override the Feres Doctrine, it permits Armed Forces members to file claims for injuries due to malpractice. Their relatives can also file wrongful death claims if their death was a result of medical negligence. Although these claims are filed against the DOD, military medical practitioners are no longer immune to medical malpractice claims. They will be liable for actions that result in injuries or wrongful death.
Banhart, F. G. (2020). The “four D’s” of medical malpractice. JDSUPRA. Web.
Breslauer, B., Nguyen, V., Ramgopal, K. (2019). U.S. service members can’t sue military doctors. A terminally ill Green Beret is fighting to change that. Ncbc News. Web.
Perrone, D. (2020). The Feres doctrine: Still alive and well after enactment of the national defense authorization act for fiscal year 2020? Jurist- Professional Commentary. Web.
Sifka, T. (2020). Federal torts claims act: Feres doctrine cracked? Opening of pandora’s box or further encasement in stone? National Legal Research Group. Web.