DOD Malpractice Claims
Legal Advocacy for Active Duty Military Members Injured by Medical Malpractice and Negligence Resulting in Injuries or Death
For over 70 years, a United States Supreme Court decision stood in the way of active duty service members being allowed to sue military doctors or hospitals for malpractice. Congress and the President changed that in 2020 through the National Defense Authorization Act (NADA). NADA even created an administrative procedure to allow injured service members to bring their claims. Now, for the first time, active duty military who are the victims of medical malpractice can file a claim and receive compensation for the harm done to them by a health care provider’s malpractice.
Bertling Law Group is a medical malpractice law firm that focuses especially on representing veterans and active duty military service members who have been harmed by negligent medical care provided by the government. If you or your loved one were hurt because of a medical mistake at a military hospital or clinic, call Bertling Law Group for a free consultation and help getting compensation for the damage done by this needless injury.
What Is This New Process?
America recognizes the doctrine of sovereign immunity, which holds that individuals cannot sue the federal government unless it consents to be sued. The federal government did grant that consent in 1946, when it passed the Federal Tort Claims Act (FTCA), giving American citizens the right to sue the federal government for negligence. However, only a few years later in 1950, the Supreme Court issued a decision in Feres v. United States in which it said the FTCA preserved sovereign immunity “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” This ruling came to be known as the Feres doctrine, and it has stood in the way of personal injury lawsuits by service members against the government, including lawsuits for medical malpractice committed in a military hospital or clinic.
Congress dealt a serious blow to the Feres doctrine when it passed the National Defense Authorization Act (NADA). Now, as of January 2020, active duty military can bring medical malpractice claims against the Department of Defense and its various military branches. Specifically, the law authorizes the Secretary of Defense to “allow, settle, and pay a claim against the United States for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a [DOD] health care provider.”
How Does It Work?
A military member injured by medical malpractice at a military hospital or clinic can initiate a claim with that service member’s branch. The claim should be filled out in detail and clearly spell out how malpractice was involved. In other words, the claim should describe how the doctor owed a professional duty to the patient, how the doctor breached that duty, and how that breach was the “proximate cause” of the service member’s injury.
“Proximate cause” is a legal term that means the malpractice was the “legal cause” of the injury and not just the “cause in fact.” Other important legal terms include knowing what is and is not malpractice. In this context, it means that the doctor failed to practice with the same level of skill, care and knowledge expected of others in the same medical field in similar clinical settings.
Depending on the circumstances, the claim might have to be accompanied by an affidavit swearing that the claimant consulted with a health care professional who reviewed the case and believes malpractice did in fact occur. An important distinction for claims under this procedure is that national standards apply to the expected standard of care, as opposed to the standards in the local community or region used in civilian malpractice claims in state court.
Applying the right standard of medical care and understanding legal concepts like proximate cause are essential to the success of your case. It is therefore important to get the help of an experienced medical malpractice lawyer who is familiar with claims under this procedure. Your case can be won or lost depending on how well you present your claim. Bertling Law Group attorneys have decades of experience in medical malpractice representing both plaintiffs and defendants and have already initiated legal actions on behalf of active duty military under this new procedure.
Important Things to Know About DOD Malpractice Claims
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The new law comes with a two-year statute of limitations, meaning you have two years from the date of the injury to file a claim. Contact an attorney as soon as possible to preserve your rights.
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The law does not provide for a period of discovery, where each side can learn information from the other through depositions, requests for the production of documents, etc. This can make it difficult to build a strong case and develop the evidence proving that malpractice occurred. Experienced legal professionals and medical experts can be especially critical to your case because of this fact.
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The law does not allow for judicial review of adjudicated claims, meaning if your claim is denied you can’t appeal it to federal court. You must make every effort to present an ironclad claim and win at the administrative level.
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The claim must be for injuries “incident to service.” This phrase is broad and would cover just about any injury or illness due to medical care by a DOD provider at a military treatment facility.
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This law should apply to reservists as well, assuming the claim is in connection with personal injury or death that occurred while in a federal duty status.
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Claimants can recover compensation for the full amount of their economic damages (medical expenses, lost income, disability) as well as noneconomic (pain and suffering) damages.
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Compensation awarded under this process is in addition to military compensation system for combat injuries, training accidents, motor vehicle accidents, or other line of duty death or disability payments.
Get Experienced, Dedicated Help With Your DOD Medical Malpractice Claim
When you are a patient, it’s hard to know whether any injury you suffered in a medical facility was unavoidable or was the result of an avoidable medical mistake. At Bertling Law Group, we’ve spent our legal careers figuring out what went wrong in a medical setting. We are experienced medical malpractice attorneys who are familiar with active duty military malpractice claims and are committed to helping you find out what went wrong and getting maximum compensation for your injuries.
If you believe you were harmed by medical malpractice at a military hospital or clinic, or if you lost a loved one due to medical errors at a DOD medical facility, call Bertling Law Group today at 844-295-7558. Your call is free, and there is no fee unless we recover compensation for you.
