Veterans Finally Have a Process to File Medical Malpractice Claims Against the Government

Members of the military, veterans, and their family members now have a process in place to file medical malpractice claims against the Department of Defense. The process was released to the public earlier in June after Congress passed a new law that allows the Department of Defense to compensate military members for injuries or deaths that occur at health care facilities operated by the military. The new process took effect on July 19, 2021.

Filing a claim against the Department of Defense

Veterans or current members of the military who believe they are the victims of medical malpractice by the Department of Defense must file a claim in order to receive benefits. When filing the claim, the claimants must include information that explains why they believe they have been the victim of malpractice and also include the amount of money they are seeking.

Claims must be filed within two years of the date the injury or illness occurred, or by two years to the date at which you believe you experienced some form of malpractice. The claim will be sent to the military health system and the provider named in the claim could face consequences, including being reported to the National Practitioner Data Bank.

All claims worth $100,000 or less will be paid to the claimant by the Department of Defense. Claims totaling more than $100,000 will need to be reviewed and if approved, will be distributed by the Treasury Department.

The new process stems from Green Beret’s situation

This new medical malpractice claims process for military members stems from the situation of a Green Beret, SFC Richard Stayskal. Stayskal said that military doctors failed to inform him of a mass present in his lungs. He was later diagnosed with lung cancer by a civilian doctor. His diagnosis is terminal.

“It’s just the right thing that needs to be done,” Stayskal said. “It’s a change that’s been long needed. I’m hoping this will start the relief process, the compensation process, and just the process to be made whole again.”

What prevented servicemembers from filing claims?

The Feres Doctrine has prevented active-duty members of the military from filing lawsuits against the government for personal injuries they suffered while performing military service. The Feres Doctrine has been in effect since a 1950 United States Supreme Court ruling.

The changes came with the passing of the National Defense Authorization Act in December 2019 by Congress. The notice in the Federal Register states that these claims are in addition to the military’s current compensation system for motor vehicle accidents, training mishaps, combat injuries, or other disabilities or deaths suffered in the line of duty.

Despite this change, the process will not play out in front of a court, only in private. Servicemembers or family members who file a medical malpractice claim will not find out who was at fault or what went wrong. According to the notice, the decision made by the military will be final and complete, meaning there will be no appeals process.

“The entire claims process is enshrouded in darkness,” Dwight Stirling, the CEO of the Center for Law and Military Policy and a former JAG officer in the California National Guard, said. “Due to the vagueness of the rules, claims can be evaluated by nameless officials in secretive offices. Who will be on the panels? What are their qualifications and biases? Did they question the physician’s account of what happened or simply take it at face value?”

Stirling has a lot of questions about how this process is going to work:

Congress should never have allowed the rules to be written by the Department of Defense. How can letting the agency at fault dictate the process be considered a good idea? In addition, Congress gave DoD officials the power to decide the claims, meaning one powerful colonel will be judging the conduct of another powerful colonel. No one who has spent a day in the military should be comfortable with a system as cozy and inbred as this. The temptation to cover up dirty laundry is too powerful.

Where claims should be filed

The notice in the Federal Register states that servicemembers should file their medical malpractice claims with their respective branch of the military. Claims should be filed as such:

• Army: Office of the Staff Judge Advocate, the center judge advocate of the medical center where the alleged malpractice occurred, or with the tort claims division of the Army Claims Service at Fort Meade, Maryland.
• Navy and Marine Corps: The tort claims unit of the Office of the Judge Advocate General in Norfolk, Virginia.
• Air Force and Space Force: Office of the Staff Judge Advocate of the nearest Air Force base, or mailed to the Air Force Legal Operations Agency, Claims and Tort Litigation Division, at Joint Base Andrews in Maryland.

When you visit the doctor, the hope is that you will be able to get better. When you are suffering because of someone else’s actions, you need experienced and compassionate representation from the team at Plaxen Adler Muncy, P.A. Call our Maryland medical malpractice team today at 410-730-7737, or complete our contact form to schedule an appointment at one of our many offices throughout Maryland.