The new 2020 National Defense Authorization Act seeks permit troops to pursue compensation when medical doctors commit mistakes that harm them. However, they will remain barred from filing medical malpractice lawsuits against the federal government.
Behind Proposed NDA Act
Congress announced the finalization of the proposed NDA Act on a Monday night. The Act must be passed by the entire Congress and assented by President Donald Trump. The presidential assent of this Act would make a historical record of being the first time in almost seventy-years that troops have had a legal alternative to obtaining payment from the military in matters relating to medical malpractice.
The proposed NDA Act is the consequence of the joint efforts of the lawmakers and a Special Forces soldier, Army Sgt. Class Richard Stayskal. The Special Forces soldier had lung cancer, but the military care providers did not take notice during one of its periodic health screening. Before Stayskal’s cancer could be diagnosed, it had spread to be terminal.
Eradication of the Decades-Old Feres Doctrine
Rep. Jackie Speier (D-Calif.) introduced the NDAA Amendment. The purpose of the Act is to remove the decades-old legal rule, Feres Doctrine, that hinders military personnel from suing the federal government for negligence.
According to Speier, the Act is an opportunity for troops who have suffered due to the system of incompetence.
Back in the 1950s, the Supreme Court held in Feres v. the United States that no service member could keep the federal government liable in the event of his/her injury or death which is an “incident to service.”
Since the inception of the Feres Doctrine, it has received a lot of criticism for its full application to incidents ranging from sexual assault to medical malpractice in the military. Also, the doctrine creates a double standard as the civilians can sue wherein the military personnel cannot.
Victory for the Feres Doctrine Critics
The new NDAA is a final victory for the critics of the Feres Doctrine as it permits the establishment of procedures for the investigation of the claims of medical malpractice. Where such a misconduct indeed occurs, the military is responsible for determining the type of damages for compensation. Under the present policy, the Feres Doctrine denies members this opportunity.
The Implication of the New NDAA
The provisions of the proposed Act allows service members to sue for claims for a remedy to personal injury or death caused by the negligence of the Department of Defense Health Care. For it to be legal, such health provider must have acted within the scope of employment.
Where military personnel is killed or harmed due to medical malpractice, they or their family members have the eligibility of two years to sue for a claim. They can only file for claims for mistakes that occurred military treatment facility. The proposed bill provision does not extend to the medical malpractice that occurs in a combat zone.
A Path for Military to Avoid its Worst Nightmare
The NDA Amendment is celebrated as a significant compromise that makes provision for troops with the power to seek legal recourse in cases of medical malpractices without allowing military members to sue the military.
According to a member of the Congress, Mullin, the provision is not about attacking the Feres Doctrine at all. In his words, that was never the aim of Congress.
Concerns About the New NDAA
Despite the welcome development of the NDAA, there are specific concerns about its pitfalls. For instance, there are fears that the judicial processes governing the legal recourse of injured parties would be subject to manipulation.
Also, there are questions about how the claim processes would function in the first place. Counting on the military to investigate the wrong before the damages can be paid out is one idea that may not work out.
At this point, there is still no clarity on how the new law would make way for future amendments which would permit claims for workplace violence, sexual assault, and training incidents. All these are not allowed by the Feres Doctrine.
Contact an Experienced Medical Malpractice Attorney
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