The military community in California enjoys the right to the same level of medical care as all other U.S. residents. Active-duty service members cannot file a lawsuit against the government when they get injured by medical malpractice, but recent changes provide military personnel and their families with more options to seek compensation.
Military compensation claims
A provision included in the National Defense Authorization act of 2020 provides a path to compensation for active-duty military and surviving family members when military malpractice causes personal injury or death to the patient. The new rules allow claim filings with the Department of Defense in response to negligence or malpractice by a military health provider. The service member must not be in a designated combat zone when the malpractice occurs to qualify for compensation.
The Department of Defense will pay compensation directly to a service member or their dependents when the amount of a substantiated claim is less than $100,000. When the compensation amount is more than $100,000, the Department of Treasury will complete the payment process.
Claimants have two years from the date of the malpractice to file a claim. It is important to note, however, that the legislation stops short of allowing active service members to file a malpractice tort against the U.S. government.
The 1950 Supreme Court Decision in the case of Feres vs. the United States prevented active-duty military personnel from filing lawsuits and seeking malpractice claims against the government. One California representative points out that the current legislation does not replace the Feres decision, but she considers the new law a giant step forward for justice.
The representative also expressed the feeling that the fight is not over. She says that she is looking forward to the day all service members can opt for a day in federal court if that is what they desire. Until then, the Department of Defense will oversee the newly created avenue to compensation for military malpractice.
It is only natural for anyone suffering injury or loss due to medical malpractice to seek compensation for their suffering. Military families may benefit from speaking with an attorney when a doctor’s mistake worsens a service member’s medical problems.