Military Medical Malpractice… A Unique Area of the Law

Long ago, the U.S. Supreme Court held that active duty service members could not sue for medical malpractice that occurred to them while in a military hospital.  Referred to as the Feres Doctrine (based on the name of the case), it has long been criticized but is still the law.  See Feres v. United States, 340 U.S. 135 (1950).

But the Feres Doctrine does not prohibit non-military family members from suing for medical malpractice that occurs in a military health system.  This often arises when medical malpractice occurs during childbirth where the mother is married to an active military member and receives her medical care in a military hospital.  In that scenario, the mom and injured baby do have a claim (the “Claim”).

The Claim, however, is no ordinary claim.  Rather, it is governed by a special federal law, full of traps for the inexperienced attorney.  The Federal Tort Claims Act (FTCA) places special limitations and requirements on such claims.  While this blog post is not meant to be exhaustive, I highlight some of the procedural requirements.  First, the claim must be “presented” to the appropriate government institution within 2 years.  28 U.S.C. 2401(b).  This is done by preparing a form called an SF-95.  The SF-95 must be carefully and fully prepared or you risk voiding the Claim.  Moreover, where to “present” the claim can be tricky — and “presenting” it to the wrong governmental agency can void the claim.  See Cronauer v. U.S., 394 F. Supp. 2d 93 (D. D.C. 2005) (failure to send SF-95 to the correct agency does not extend the 2-year statute of limitations).  There is even a question whether “mailing” constitutes “presentment.”  See Drazan v. United States, 762 F.2d 56 (7th Cir. 1985).  In addition, you must ask for a specific dollar amount of damages.  See Richland-Lexington Airport District v. Atlas Properties, Inc., 854 F. Supp. 400 (D. S.C. 1994) (asking for “compensation for any damages caused” is not sufficient).  And the FTCA prohibits you from asking for greater damages if you later file suit.  28 U.S.C. 2675(b).

Once you have successfully presented the claim, you are not allowed to file a law suit for 6 months after presentation or, until 6 months after the appropriate agency denies the claim.  28 U.S.C. 2401(b).  Once that time period has elapsed you may file a lawsuit in one of two places:  the federal court where the injury occurred, or the federal court where the military member lives.

Unlike regular medical malpractice cases, which are ordinarily decided by juries, the FTCA requires that the Claim be decided by a federal judge.  28 U.S.C. 2402.  The federal judge ordinarily will use the medical malpractice law of the state where the injury occurred.  Punitive damages are not allowed, 28 U.S.C. 2674, and the attorney’s fee is limited to 20% if the case settles before filing suit, and 25% if the case is resolved after a lawsuit is filed.  28 U.S.C. 2678.

This is a very brief overview of the procedural thicket involved in prosecuting military medical malpractice cases.  One thing is for sure:  this is not a field of law for the unwary!


Leave a Comment

Your email address will not be published. Required fields are marked *


You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>