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Congressional Research Service
Informing the Iegitive diebate since 1914
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Updated April 25, 2023
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 C.a.ms
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. The Supreme Court
also reasoned that the government already implements a
uniform system for compensating and providing services to
servicemembers harmed in the course of their duties. In the
Court's view, Congress would have adjusted the
aforementioned benefits if it had intended that the FTCA
permit recovery for injuries incident to military service.
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.)
In December 2019, Congress enacted Section 731 of the
National Defense Authorization Act for FY2020, (P.L. 116-
92), which directed the creation of an administrative
procedure by which the Defense Secretary may pay
compensation for alleged medical malpractice committed
by military health care providers. 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. The regulations implementing this compensation
scheme are promulgated under 32 C.F.R. Part 45. This
compensation scheme does not, however, authorize
servicemember lawsuits against the government to address
medical malpractice by military health care providers.
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 $500,000 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
Clairns
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.](ViewImageLocal?handle=hein.crs/govelka0001&div=1&collection=&method=preview&ext=.png&size=3)
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