Partner
What recourse do military families currently have if their loved one is a victim of medical malpractice?
An important bill is working its way through the legislature that would change existing laws concerning medical malpractice in the military. Legislation was recently passed by the House of Representatives that would allow some military members to file medical malpractice claims against the government. If signed into law, the bill could bring about significant change for military members who suffer injuries at the hands of a doctor. Our New York City medical malpractice lawyers discuss the potential law and how laws currently stand for military members who become the victims of medical malpractice.
The Feres Doctrine
The existing law concerning medical malpractice and military members is known as the Feres Doctrine. The Feres Doctrine bars active-duty service members from suing the government for negligence. The Doctrine stems from a 1950’s U.S. Supreme Court case which expanded government immunity. The case interpreted a 1946 Federal Tort Claims Act which rendered the government immune from certain lawsuits, including medical malpractice. This court decision has been widely criticized and several attempts have been made to replace it. As it stands right now, military members have fewer rights to recover compensation from medical malpractice than prisoners.
The Proposed Law
The 2020 National Defense Authorization Act, which is now before the Senate, was influenced by the SFC Richard Stayskal Military Medical Accountability Act of 2019. The Act is named after Sgt. 1st Class Richard Styskal. Styskal was struggling to breathe and went to the emergency room in 2017. An x-ray showed that he had a tumor, but the attending physician missed the tumor and instead diagnosed him with walking pneumonia. Months later he returned to the E.R. with trouble breathing and was then diagnosed with stage 4 lung cancer. He is now terminally ill, but expressed happiness that this bill may pass so that others may be able to receive some sort of financial relief if they are grossly misdiagnosed like he was.
Military members should closely watch the path of this bill so that they understand their legal rights. In the near future, service members and their families may have recourse to pursue compensation from their medical malpractice related injuries.