New Law Allows Veterans to File Medical Malpractice Claims
On December 20, 2019, President Donald Trump signed the Defense Authorization Act of 2020 into law. While many people may not have noticed the law's passage, it provides a historic benefit to veterans who have suffered from medical negligence. A little explanation is in order.
Currently, veterans of any branch of the armed forces are unable to sue the Government for medical malpractice. The reason has to do with a 1950 U.S. Supreme Court case titled Feres v. United States.
Ralph Feres, a U.S. Army soldier, was killed in an on-base barracks fire in 1947. His wife sued the U.S. Army for wrongful death. The Supreme Court ruled that the Government is immune from lawsuits brought by active duty or discharged personnel for injuries which arise out of or are in the course of activity "incident to service."
What does "incident to service" mean? Pretty much anything and everything, as virtually every federal court in the country has ruled over the past 70 years.
Last year, the Supreme Court had a chance to review the Feres ruling. Sadly, the Court declined to hear that case, Daniels v. United States. This left the Feres rule as the law of the land. But it didn't stop several injured veterans from continuing to lobby Congress to have the law changed.
Captain Katie Blanchard is one such veteran. In a tragic and foreseeable case, she was set on fire by a co-worker while in the Army in 2016. She suffered horrible burns but could not sue the Army because of the Feres rule. Similarly, when Sgt. 1st Class Richard Stayskal presented to an Army hospital in 2017, the facility failed to perform a routine CT scan. In the meantime, the lesion on his lung is now terminal cancer. The CT scan would have caught the cancer earlier, but Feres prohibits him from suing the Army for what would be a slam dunk case of medical negligence.
Things changed on December 20th. With the stroke of a pen, President Trump allocated $400 million over ten years to cover veteran claims for medical negligence, also known as medical malpractice. The Feres rule is still valid law, so veterans cannot sue the Government in court. But each branch of the military must now put procedures in place to consider and review veterans' medical malpractice claims.
The Defense Authorization Act says that for each claim, the first $100,000 would be paid by the Department of Defense. Any claim exceeding $100,000 would be paid by the Treasury Department. The portion of the Act which deals with payment to veterans is aptly named the Richard Stayskal Military Medical Accountability Act of 2019. It gives veterans a two year window to file their claims. For 2020 itself, veterans may go back three years, to 2017. This allows Sgt. Stayskal to file his claim this year.
The procedures for filing claims with each branch of the Service may vary. Critics argue that the Act does not go far enough because it still prevents victims of medical malpractice within the Service from filing their lawsuits in federal court. Proponents say that the Act is opening doors that have been close to our warriors for the past 70 years since Feres v. United States was decided.
If you or someone you know is a veteran who suffered medical negligence at one of our nation's facilities, it's important to contact an attorney knowledgeable with the new Act and its unique procedures and ramifications.
The Rabbi Lawyer is ready to assist, 24/6.
