Law allowing med-mal claims against DoD is flawed: lawyers

Prompted by the plight of an Army Green Beret with lung cancer, President Donald Trump signed legislation that allows servicemembers to seek damages from the Department of Defense for medical malpractice occurring in government facilities.

The amendment received bipartisan approval but plaintiffs' lawyers say it does not fully address the injustice to servicemembers created by the 1950 U.S. Supreme Court case Feres v. United States; a decision of which Justices Ruth Bader Ginsburg and Clarence Thomas have urged review. Feres v. United States, 340 U.S. 135 (1950)

In what is now known as the Feres doctrine, the high court found that military members are barred from pursuing tort claims against the government for injuries obtained in service, including medical malpractice at government facilities.

Trump's action Friday was named after the soldier who prompted the legislation. The SFC Richard Stayskal Military Medical Accountability Act of 2019 seems to partially address criticism of the Feres doctrine and allows for "suit against the United States for injuries and deaths of members of the Armed Forces of the United States caused by improper medical care."

Critics, including Nicholas Rowley, a plaintiffs' litigator from Carpenter Zuckerman & Rowley, called the bill "a joke" that does not truly create a useful avenue for servicemembers to bring medical malpractice claims against the government.

"You can file a medical malpractice claim where, to what court? Who has jurisdiction, who has venue?" Rowley asked in a phone interview Tuesday.

Since the bill does not allow for claims to be filed in federal court, by his reading, servicemembers will only be able to file claims with the secretary of defense, leaving the entire claims process to be facilitated by military governing bodies and not a medical board.

Rowley, who was a medic in the U.S. Air Force and Army, said while there are plenty of excellent military doctors providing care to servicemembers, there are many negligent ones as well committing medical malpractice and getting away with it because of the Feres doctrine.

"You take an oath as a young person to serve your country and put on a uniform but most of these young men and women and their families that support them serving our country don't understand that they are giving up their civil rights," Rowley said. "The Feres doctrine has allowed negligent healthcare providers, who are practicing under the color of our flag, to negligently harm and kill people with impunity. This bill the Senate passed doesn't change that, in my ever so humble opinion."

Echoing Rowley's concerns, Richard Custin, clinical professor of Business Law and Ethics at the University of San Diego, said the bill is "Too late and too little," and that the Feres doctrine needs to be fully repealed.

"The Feres doctrine was universally and rightly condemned by the courts, a coalition of bipartisan legislators and the public," Custin said in an email. "The bill does not allow active duty servicemembers to sue and collect civil damages. Most importantly, the bill does not apply to claims other than medical malpractice."

"My concern is that the momentum to repeal Feres has been lost. Feres was 'on the ropes' until this compromise was reached," he said.

The legislation was introduced by U.S. Reps. Jackie Speier, a Democrat from Silicon Valley, and Richard Hudson, a Republican from North Carolina.

"Nearly every other American -- civilian, federal employee, or prisoner -- has the right to sue the government for medical malpractice and other forms of negligence, but not servicemembers," Speier said in an introduction of the bill. "By not allowing servicemembers to sue for medical malpractice, Feres denies servicemembers justice."

Citing the recent cases involving Stayskal -- who after being misdiagnosed by military doctors, developed terminal lung cancer -- and Navy Lt. Rebekah Daniel -- who died from blood loss after giving birth in a military hospital -- Speier said the act will address the injustice created by the Feres doctrine by creating an exemption allowing for servicemembers and their families to file medical malpractice suits under the Federal Tort Claims Act.

According to a report in the Military Times, officials at the Department of Defense have long resisted any change in the Feres doctrine standard. On-duty military deaths are already compensated through military death gratuities, they argue, and any change could allow frivolous lawsuits or legal undermining of certain battlefield decisions.

With a personal injury practice in San Diego, a county full of servicemembers, Adam Levine of Casey Gerry Schenk Francavilla Blatt & Penfield LLP said he sees regularly what he calls "the fundamental unfairness of the Feres doctrine."

"We are routinely contacted about incidents and injuries involving military personnel," Levine said. "There is nothing worse than having to explain to these men and women that even though they've committed to serving our country at great personal sacrifice, the legal system bars them from access to the same justice a civilian would have in the situation."

The new bill should be narrower than its current "extremely broad applicability," Levine said.

"An exception for medical malpractice is a good start, but the doctrine should be limited to barring only claims related to injuries suffered by servicemembers deployed in combat situations or maybe also those training in simulated combat," Levine said. "As long as it applies to injuries that are completely unrelated to these risks, it will be fundamentally unfair."

Speier also expressed dissatisfaction with the legislation in a statement released earlier this month.

"Though today's conference report was an accomplishment in many respects, this fix is far from perfect," Speier said. "[A]nd I have serious concerns about allowing the DOD to run the entire claims process as they will write the rules, investigate malpractice incidents, and adjudicate claims. Rest assured that I will closely oversee the implementation of these changes and continue to work to address the myriad injustices that remain due to the Feres doctrine."

Though the provision does not create an exemption to the Feres doctrine, nor will it allow servicemembers to sue the Department of Defense for medical malpractice in federal court, it does allow servicemembers to receive uncapped monetary compensation under the Military Claims Act for malpractice, the statement said.

It also forces the Department of Defense to document and respond to claims and contains provisions to enable congressional oversight, the statement reads.

Rowley said while he applauds Speier's efforts, the final version of the bill was greatly hamstrung after going through the Senate.

"I see nothing in this bill that gives me confidence to look a client in the eye and say this is a system that has integrity and you have a fair process that you will be able to win this case and achieve civil justice that is actually going to matter. Rather than a process that is fake and only adds insult to injury."