![handle is hein.crs/govyee0001 and id is 1 raw text is:
Infrming thleiltvdeaesne14
February 11, 2019
Military Medical Malpractice and the Feres Doctrine
The Department of Defense (DOD) employs physicians and
other medical personnel to administer health care services
to servicemembers. Occasionally, however, patient safety
events occur and providers commit medical malpractice by
rendering health care in a negligent fashion, resulting in the
servicemember's injury or death. This In Focus discusses
the standards and procedures governing the disposition of
medical malpractice claims that servicemembers and non-
servicemembers assert against the United States, as well as
pertinent considerations for Congress.
Malpractice Claims: Servicemembers
Outside the military context, a victim of medical
malpractice may potentially obtain recourse by pursuing
litigation against the negligent provider and/or his
employer. A servicemember injured as a result of
malpractice committed by a military health care provider,
however, may encounter significant obstacles if he attempts
to sue the United States. Although the United States has
rendered itself amenable to certain types of lawsuits by
enacting the Federal Tort Claims Act (FTCA), the Supreme
Court has interpreted the FTCA to immunize the federal
government from liability 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 tort
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 asserting
malpractice claims against the United States based on the
negligent actions of health care providers employed by the
military. (Different legal standards might apply, however,
to independent contractors who the United States hires to
provide health care services to servicemembers.)
Alternatives to Tort Liability
As a result of Feres, servicemembers harmed by the
malpractice of a military health care provider must
ordinarily pursue avenues other than FTCA litigation
against the federal government to obtain monetary
compensation or other forms of relief. One potential avenue
is Servicemembers' Group Life Insurance (SGLI), which
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. The
Department of Veterans Affairs may also continue to
provide free or low-cost health care to servicemembers after
they are discharged from the military, as well as other
benefits.
Malpractice Claims:
Non-servicemembers
Depending on the circumstances, victims of military
medical malpractice who are non-servicemembers (such as
military retirees, spouses, and children of servicemembers)
may still be able to pursue litigation against the United
States under the FTCA. However, the FTCA's statute of
limitations and administrative exhaustion requirement
generally require the claimant to file a claim with the
agency within two years of the date on which the claimant
knows of the factual basis for his injury and its cause.
Figure 1 illustrates the administrative process for settling a
medical malpractice claim against the United States.
Figure I. Adjudicating Malpractice Claims for Non-
servicemembers Through the Administrative Process
Source: Department of Defense.
Note: Graphic adapted by CRS. MTF = Military Treatment Facility.
ttps://crsreports.congress.gov
0](ViewImageLocal?handle=hein.crs/govyee0001&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most