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Updated June 16, 2021
Military Medical Malpractice and the Feres Doctrine
The Department of Defense (DOD) employs physicians and
other medical personnel to administer health care to
servicemembers, military retirees, and their family
members. If these providers commit medical malpractice,
they may cause injury or death. This In Focus discusses the
standards and procedures governing medical malpractice
claims that servicemembers and non-servicemembers may
assert against the United States, as well as pertinent
considerations for Congress.
Servicemembers' Malpractice Claims
Outside the military context, a victim of medical
malpractice may potentially obtain recourse by suing the
negligent provider or the provider's employer. However, a
servicemember injured by a military health care provider's
malpractice may encounter significant obstacles if he or she
attempts to sue the United States. Although the Federal Tort
Claims Act (FTCA) renders the United States amenable to
certain tort lawsuits, the U.S. Supreme Court has
interpreted the FTCA to preserve the government's
immunity for injuries to servicemen where the injuries
arise out of or are in the course of activity incident to
service. According to the Court, suits brought by service
members against the Government for injuries incurred
incident to service would undesirably embroil the
judiciary in sensitive military affairs at the expense of
military discipline and effectiveness. This exception to
liability is known as the Feres doctrine, after the 1950
Supreme Court decision that first articulated the rule. Many
lower federal courts have concluded that Feres generally
prohibits military servicemembers from suing the United
States for medical malpractice committed by military health
care providers. (However, the Feres doctrine does not
necessarily apply to medical malpractice lawsuits against
independent contractors hired to provide health care to
servicemembers.)
During the 116th Congress, the House passed a version of
the Fiscal Year (FY) 2020 National Defense Authorization
Act (NDAA; H.R. 2500) that proposed to modify the Feres
doctrine to let servicemembers sue the United States for
military health care providers' malpractice. The enacted
version of the FY2020 NDAA (P.L. 116-92), however, does
not authorize such lawsuits. Instead, the FY2020 NDAA
creates an administrative procedure by which such
servicemembers may request compensation from the
Secretary of Defense. Subject to various prerequisites and
limitations, 10 U.S.C. § 2733a authorizes the Secretary 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.
Injured servicemembers or their families may potentially
obtain compensation through other avenues as well. For
instance, the Servicemembers' Group Life Insurance
(SGLI), administered by the Department of Veterans
Affairs (VA), automatically insure[s] . . . any member of a
uniformed service on active duty up to $400,000 against
death unless the servicemember elect[s] in writing not to
be insured. Federal law also entitles any member of an
armed force . .. who dies while on active duty to a
$100,000 death gratuity paid to or for the
[servicemember's] survivor. An injured servicemember
who is no longer fit for duty may also be eligible for a
disability rating and accompanying compensation through
the Integrated Disability Evaluation System. Injured
servicemembers may be entitled to other benefits as well.
For instance, servicemembers may continue to receive free
health care while they remain in the military. VA may also
continue to provide free or low-cost health care to former
servicemembers after they are discharged from the military,
as well as other benefits.
Non-Servicemembers' Malpractice
Claims
Depending on the circumstances, non-servicemember
victims of military medical malpractice (such as military
retirees, spouses, and children of servicemembers) may sue
the United States under the FTCA notwithstanding Feres.
However, the FTCA's statute of limitations and
administrative exhaustion requirement generally require the
claimant to first file a claim with the responsible agency
within two years of the date on which the claimant knows
of the factual basis for his or her injury and its cause. Figure
1 illustrates the administrative process for settling a medical
malpractice claim against the United States.
Under 28 U.S.C. § 2672, federal agencies have authority to
settle certain claims for personal injury or death caused by
the negligent or wrongful act or omission of any employee
of the agency while acting within the scope of his office or
employment' and pay compensatory damages. Although
there are no statutory caps on compensatory damages paid
by or on behalf of DOD, the Attorney General or his or her
designee must approve in writing settlements over
$200,000.
If enrolled, certain non-servicemembers may also be
eligible for compensation through term life insurance
benefits upon death. For example, the VA-administered
Family Servicemembers' Group Life Insurance (FSGLI)
offers up to $100,000 of coverage for military spouses and
up to $10,000 for military dependents. Military retirees
enrolled in the Veterans Group Life Insurance (VGLI) may
be eligible for up to $400,000 of coverage.
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