Can Military Members Sue for Medical Malpractice?

Americans are blessed to live in a country in which we feel almost completely secure from foreign threats. A big part of our appreciation for this security should be directed to the thousands of brave men and women who currently serve in the military, or have served in the past.

Service in the military has also traditionally been viewed by those who enlist as a professional pathway with many positive benefits. In addition to pay, those who serve in the armed forces may be entitled to housing, training, funds for college education, retirement pay, and other benefits. One such benefit is medical care. But what happens if something goes wrong with the medical care - are military members permitted to sue for medical malpractice? That will be the topic of this article.

The Government and Sovereign Immunity

You may not be surprised to know that historically it has been difficult to sue the government. In old English law, where American law originally developed, it was said that “the King can do no wrong.” That meant that suits against the sovereign generally were not permitted. This theory of sovereign immunity was passed on to the United States, where the law generally holds that the government cannot be sued unless it consents to the suit. 

Over time, a variety of laws have been passed that allow the government to be sued under specific circumstances. An example is the Federal Tort Claims Act. Under that Act, people who are injured by the negligence or wrongful conduct of a federal employee can file a claim against the federal government if they meet statutory requirements. Thus, you may think it’s a no-brainer that a military member would be allowed to sue for medical malpractice. However, it hasn’t always been that simple.

The Federal Tort Claims Act and the Feres Doctrine

Under the Federal Tort Claims Act, active military members could not sue for acts arising out of combatant activities. Without getting into a philosophical debate, the rationale is that military service comes with risks that everyone understands.

One could also argue that medical care personnel should not be held to the same standard of care when facing combat situations. But the United States Supreme Court created a rule called the Feres Doctrine (from the name of a case before the Court) that extended the prohibition to all active duty military members, even if they weren’t really involved in combat. Unsurprisingly, it resulted in many unfair outcomes.

Abolition of the Feres Doctrine

Thankfully, after more than 7 decades, fairness has finally prevailed. The 2020 National Defense Authorization Act changed the law by ending the ban. The Pentagon has issued guidelines on how military members can proceed with a claim for medical malpractice.

As with all legal claims, there are important procedural requirements and it pays to speak with an attorney if you believe you have a case.

Importance of Medical Malpractice Laws

Whether you are a military member or a civilian, you deserve a level of medical care that meets the appropriate standard of care. When a person is injured due to the negligent act or omission of a medical care provider, it is only fair that the victim be compensated for all losses caused by the negligence.

Call with Questions

If you or a loved one has been injured by the negligence of a medical professional, whether you are a civilian or a member of the military, you will likely have questions about your rights. Medical malpractice cases are typically complicated and the guidance of an experienced attorney is essential. At Nelson MacNeil Rayfield, our medical malpractice attorneys represent victims all over Oregon and would be happy to answer your questions in a free consultation. We believe that it is essential to hold negligent actors responsible for the harm that they cause so that all of society is made safer.


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