By Sean Cronin • Partner at Cronin & Maxwell
Active duty military personnel now may file claims against the federal government for medical malpractice, thanks to the 2020 National Defense Authorization Act President Donald Trump signed into law.
This is a huge victory for soldiers and sailors who are injured or killed because of negligence happening off the battlefield at military facilities.
Previously, the Feres Doctrine, which is based on a 1950 U.S. Supreme Court decision, barred military personnel from suing the federal government for medical malpractice. However, the Feres Doctrine allows the spouses and children of service members, as well as military retirees, to file claims against the federal government in cases of medical malpractice.
The 2020 National Defense Authorization Act includes a provision that allows active military personnel who are injured by medical malpractice at military medical facilities to file claims – not lawsuits – with the Department of Defense agencies. Generally, claims must be filed within two years. Claims involving medical malpractice that happened in a combat zone are specifically excluded.
This change in law is good news for our service members. In the past, because of the Feres Doctrine, I turned down numerous heartbreaking, meritorious medical malpractice cases involving active duty service members. Now, because of the change in the law, there is a potential avenue for recourse.
Too late for Nathan Hafterson
Unfortunately, the change in the law is too late for the parents of Nathan Hafterson.
In 2006, the 21-year-old Navy P-3 radar operator died at Naval Hospital Jacksonville after being treated for a blood sugar problem after he was intubated to help him breathe.
During the intubation, he had an allergic reaction to the anesthetic agent. Unfortunately, the medical staff did not immediately recognize the allergic reaction. They eventually administered an antidote, but it was too late. Nathan developed malignant hypothermia and died from cardiac arrest.
After a wrongful death suit was dismissed by the U.S. District Court in Jacksonville in 2008, our team appealed the case to the U.S. Court of Appeals for the 11th Circuit, which denied the appeal.
After petitioning the U.S. Supreme Court for certiorari review, the court ultimately denied reviewing the case.
While it is too late for the Hafterson family, troops who are harmed by medical malpractice now have peace of mind knowing they may pursue claims for justice.
Claims process only
An injured service member has two years to file a standard claim form 95 with the respective military branch where the alleged medical malpractice occurred.
Each branch has a torts unit comprising attorneys and staff. They have six months to investigate the claim to determine whether it is meritorious.
If the claim is deemed meritorious, it will be adjudicated through the agency, which will determine the appropriate award for the injured party. However, the ruling cannot be appealed. If the claim is denied, the service member has no further recourse.
Thanks to the change in the law, troops now have more protection if they become injured at a military medical facility.
Sean Cronin is a retired Navy commander and P-3 pilot, and a partner at Cronin & Maxwell, representing victims of medical malpractice.
