A Guide to Better Understanding the Claim Process
As a member of the US military you are entitled to competent medical care, but if you or a family member has suffered due to the medical negligence of a military doctor then you might be able to sue for military medical malpractice.
If you feel you have a case make sure you talk to someone immediately as the law requires you to pursue legal action as soon as possible. By consulting with a medical malpractice attorney, who has experience of the United States military health care system, you’ll be able to determine if any action should be taken.
Before filing your case you must be aware of the specific laws that protect military doctors, namely that they are protected from medical malpractice lawsuits. However, there are ways to work around this so you or a member of your family can file a medical malpractice lawsuit in a federal court.
How Does the Claim Process Work?
Two separate laws apply to military medical malpractice claims under US federal law. The Federal Tort Claims Act (FTCA) applies to any injuries occuring as a result of medical malpractice in a US military hospital or a VA medical center, hospital or clinic. The Military Claims Act (MCA) applies to injuries caused at clinics military medical hospitals overseas. To pursue your case you must file an administrative claim first. Once a claim has been filed they will have 6 months to investigate. If your claim is denied you can pursue the matter with the appropriate United States District Court within 6 months. If your negligent medical care occurs at a military hospital outside of the US, the Military Claims Act states that the claim must be filed within 2 years of the injury. Remember, filing a claim will not damage your military career or put your subsequent health care program in jeopardy. Your attorney will be looking at the facts surrounding your case to determine:
- When the malpractice took place
- When you would have been reasonably expected to know you were injured
- Whether the time for filing a claim can be increased due to the circumstances of your case
- What options you may have for your injury
What Is the Feres Doctrine?
The Feres Doctrine stops you filing a medical malpractice lawsuit, or any kind of personal injury suit, against the government for injuries you sustain whilst on active duty. This means members of the military can’t sue military doctors, or civilians working in military facilities, for financial compensation. It states each case must be reviewed individually, and does not give any strict rules regarding which cases are to be permitted. The Feres Doctrine was written to stop civilian courts from querying the decisions made by military commanding officers and, in turn, the effectiveness of the US military.
What Is the Federal Tort Claims Act?
The Federal Tort Claims Act is a series of protective laws that govern any lawsuits brought against the US government. If you are a victim of medical negligence in a military hospital, the FTCA allows you to file a case for medical malpractice. Under this act you have two years to file a suit for damages against the government if you are a non-active or retired military member who has been injured due the medical negligence of a military doctor. Also, if you are looking to file a case for the wrongful death of a retired military member this will be done under the FTCA.
Is Medical Malpractice in the Military Going Unreported?
There are many cases of military medical malpractice. Some are not that extreme, just errors that are identified and rectified before anything serious happens. Some cases are far more tragic – one of the most publicized is that of 29-year-old Marine Corps Sgt. Carmelo Rodriguez who died from cancer in 2008. In 1997, when Sgt. Rodriguez joined the Marine Corps, a physical exam made note of a melanoma, but he was never informed. The skin abnormality was noted again eight years later, but was still not treated. By the time Rodriguez was told of the diagnosis, it was too late and the cancer had become terminal. Due to his condition he was medically retired and this prevented his family getting funeral benefits. Often the problem of military medical mistakes is problematic due to the ranking system. It is claimed enlisted personnel are too scared to speak up, especially if the mistake is caused by an officer. However, a system that allows mistakes to be reported anonymously is now in place.
No amount of money can make up for an injury or wrongful death due to negligence or medical malpractice, but make sure you seek the correct legal advice. The compensation you could recover will go a long way to cover medical costs and the pain you might have suffered.