Can Military Doctors Be Sued

Blogging Time

The Defense Department has published guidelines controlling how uniformed service members or their representatives can sue the military for negligence which may have ramifications for military service personnel in Utah.

With the new rule, service personnel or their families will have 30 days after publication in the Federal Register to file a malpractice claim. If this issue affects you, it is advised to secure the services of a military malpractice lawyer.

According to the Feres Doctrine, active-duty military soldiers, including soldiers in Utah, cannot sue the government for personal injuries sustained while serving. This made it difficult for service members to sue the military for medical malpractice. But the National Defense Authorization Act of December 2019 changed that. In some medical care facilities, service members or their representatives can submit claims for bodily harm or death caused by military health providers.

Bloomberg Government reported that troops had filed 227 unresolved malpractice claims worth $2.16 billion. The Pentagon hasn't updated its stats. The new claims process is in addition to the military's compensation system, which covers combat injuries, training disasters, vehicle accidents, and other deaths or disabilities in the course of duty. Aside from providing information concerning medical treatments that went wrong, the Military Health System Healthcare Resolutions Program does not allow patients to file claims or legal proceedings.

Exceptions Do Exist

The Federal Register notification notes that adjudicated claims are final and conclusive, yet exceptions exist. The notice specifies that claims challenging discretionary agency policies are not eligible for consideration. The exception for combatant activity applies, but only in very rare situations, such as an attack on a military hospital.

According to the registration notice, medical malpractice claims must be for injuries "incident to service." The term "almost every injury or disease" refers to medical care obtained at a military treatment facility by a DoD health care provider. Reservists have harsher rules, which would include Utah Reservists. A claim can be submitted by a reserve component service member only if the injury or death happened while on federal duty. The new claims method is only available to victims of malpractice if no other legal recourse exists.

The Defense Department will immediately pay claims under $100,000. However, claims worth above $100,000 will be evaluated and paid by the Treasury Department. Legal claims should be made with the service member's branch. That would be the nearest Staff Judge Advocate Office, the center judge advocate of the medical facility where it is claimed malpractice occurred, or the Army Claims Service in Fort Meade, Maryland.

Navy and Marine Corps disputes should be submitted to the JAG's tort claims unit in Norfolk, Virginia. In the Air Force, claimants should either present their case in person or mail it to the Air Force Legal Operations Agency Claims and Tort Litigation Division at Joint Base Andrews in Maryland.

What Are the Deadlines?

The new guidelines tighten claim deadlines. The NDAA allowed service personnel who committed malpractice in 2017 to pursue claims in 2020. If a service member or authorized representative submits a claim in writing, the claim must be signed and contain the claimant's or representative's signature. When an attorney or authorized representative files a claim on behalf of a service member, they must provide an affidavit.

Unless the claim includes obvious malpractice, the claimant must attest that a health care practitioner believes the military health care provider broke the standard of care and caused the alleged harm. The notice notes that as claimants must substantiate their claims, they may provide whatever information and documents they deem appropriate. The notice states that an expert opinion is not required at the time of filing.

The claimant must show by a majority of the evidence that the military health care provider on duty "breached a professional responsibility to the patient involved and caused the harm." The health care professional must give the claimant the same level of expertise, care, and knowledge expected of individuals in their area in comparable clinical settings. A skilled military malpractice lawyer can help clarify issues related to this kind of situation.

According to the notice, the government will calculate economic damages based on past and future medical costs, lost income, lost earning capacity, and compensation paid for someone to provide essential household services and daily living activities that the service member can no longer perform.

DoD or VA compensation for the same malpractice harm will be subtracted "so that the US does not pay twice for the injury. This includes active service pay and allowances, disability retirement or severance pay, incapacitation pay, forced and voluntary separation pay and incentives, and death gratuities.

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I live and work in Utah, so my news will focus on this state. I am also very into finance, entrepreneurship, crypto, and small business. I'm an owner of several businesses, from a solar farm to a sports card shop. I write about my experiences running them.

American Fork, UT

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