For many years, California servicemembers and their families were unable to sue the government when they were harmed by medical malpractice. Now, a law passed by Congress allows some right to sue the government for medical malpractice claims. However, that right is not unlimited.
Part of the Feres Doctrine has been repealed
The Feres Doctrine comes from an old legal decision, and it restricts servicemembers’ ability to sue the United States government for injuries. This applies to their families as well. In the past, this even forbade medical malpractice lawsuits, no matter how unfair the result seemed. The 2020 National Defense Authorization Act allowed some relief for military members in the case of malpractice. However, claims were on hold while the military worked through new regulations that would govern these cases.
The regulations are still vague and opaque
Now, these regulations have been published. Servicemembers still cannot sue the government in federal court. They can file a claim with the Department of Defense for their injuries. In other words, this is not a lawsuit process. There is still much uncertainty about how this process will be implemented and how the claims will work in practice. The claims process can be difficult after any injury, and it may be even more challenging with the federal government on the other side. Right now, there is little transparency.
Repeal of this part of the Feres Doctrine will mean more fairness for injured servicemembers who were previously subjected to a very unfair system. However, it remains to be seen whether the actual claims process will be much help when someone has been injured by a military doctor.