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This blog summarizes a new provision under the 2020 National Defense Authorization Act (2020 NDAA) that provides an administrative remedy for active-duty military personnel who have suffered injury or death as a result of medical malpractice by a U.S. Department of Defense health care provider.

What Is the Federal Tort Claims Act?

Originally codified in 1946, the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, is a federal statute that functions as a limited waiver of the federal government’s sovereign immunity, allowing private individuals to sue the United States government for damages related to the tortious conduct of persons or entities acting on behalf of the federal government.

Under the FTCA, individuals must first file an administrative claim with the appropriate federal agency. The federal agency reviewing such a claim must determine whether a settlement is appropriate within six months. If the claim is not settled during the administrative process, the case may proceed to federal court, where a judge will review the evidence and determine whether the claimant is entitled to recover damages against the government.

Although the FTCA allows for a variety of tort claims to be brought against the federal government, certain limitations apply, including a prohibition against claims involving intentional torts or based upon the government’s performance of (or failure to perform) a “discretionary function.”

About the Feres Doctrine

In 1950, the U.S. Supreme Court further restricted the application of the FTCA by prohibiting all active-duty military personnel from suing the government for injuries or death resulting from any tortious conduct, including medical malpractice. Feres v. United States, 340 U.S. 135 (1950). This case, and its progeny, have produced a legal rule known as the “Feres doctrine.”

For years, our law firm has had to provide the unfortunate disclosure to our active-duty military clients that they were barred from recovering any compensation for the negligent acts of the federal government, regardless of the extent of their injuries or the degree of the government’s negligence — irrespective of whether the negligence constituted malpractice or some other species of tortious conduct.

Although the federal government maintains that the Feres doctrine is fair and appropriate because active-duty service members are adequately compensated for injuries (and death) resulting from government negligence through various U.S. Department of Veterans Affairs benefits programs, in our experience, the compensation provided by these benefit programs is typically inadequate and, in many cases, derisory.

The Feres doctrine has been controversial, surviving multiple attempts to overturn the doctrine at the Supreme Court. Legislative attempts to overturn the doctrine have likewise failed. However, through the 2020 NDAA, the federal government opened a new avenue for active-duty service members to recover compensation for injuries resulting from the medical negligence of a Department of Defense health care provider.

Changes Brought by the 2020 NDAA

In December 2019, former President Donald Trump signed the 2020 NDAA, which for the very first time, allowed active-duty service members to file claims against military doctors, hospitals, nurses, medics, and/or other medical personnel for malpractice. These claims, however, are limited to an administrative remedy, with litigation in federal courts still prohibited. In other words, active-duty service personnel (or their representatives) can file an administrative claim requesting compensation for any injuries sustained while under the care of a negligent Department of Defense medical professional. Unfortunately, the administrative decision cannot be appealed or contested.

Please note: The 2020 NDAA did not overturn the Feres doctrine and, thus, does not permit service members to sue the federal government under the FTCA.

About the 2020 NDAA Claims Process

Put simply, the 2020 NDAA provision allowing military medical malpractice claims is a process in which service members prepare and submit their claims by compiling relevant information and arguments, including evidence establishing proof of duty, breach of duty, and causation resulting in compensable injury or loss. Once compiled, the claim is submitted to the Secretary of Defense.

Under the statutory provisions, 10 U.S.C. § 2733a, the Secretary of Defense will then review the claim and the supporting evidence and, if the Secretary of Defense deems the claim to be compensable, the injured service member can receive up to $100,000.00. If the Secretary of Defense determines that the injured service member is entitled to an award in excess of $100,000.00, the claim will be sent to the Secretary of the Treasury for a second review and final approval. If approved by the Secretary of Treasury, a check from the federal government will be issued for the award.

As mentioned, this is an administrative, rather than judicial, procedure where, if the claim is denied or an award is granted for less than the amount requested, claimants are not entitled to review, appeal, or any other opportunity to go to court and ask a federal judge to review the determination of the Secretary of Defense. Although it would certainly be preferable for active-duty service members to be allowed judicial review, the 2020 NDAA represents increased accountability for the federal government and a new opportunity for our nation’s active-duty military personnel to receive compensation and justice for injuries or death caused by medical malpractice.

Establishing Liability

In order to prevail on a claim under the 2020 NDAA, the claimant must be able to show that a Department of Defense health care provider violated the applicable standard of care and that the violation of the standard of care resulted in a compensable injury to the claimant.

“Department of Defense health care provider” is defined as “a member of the uniformed services, civilian employee of the Department of Defense, or personal services contractor of the Department . . . authorized by the Department to provide health care services and acting within the scope of employment of such individual.”

Submitting Your Claim

Under the law, claims for members of the Navy should be sent to the Office of the Judge Advocate General in Norfolk, Virginia. Claims for members of the Army should be sent to the Office of the Staff Judge Advocate, the Center Judge Advocate of the hospital or the medical center where the injury occurred, or to the U.S. Army Claims Service. Members of the Air Force should submit claims to the Office of the Staff Judge Advocate at the nearest Air Force base.

These submission guidelines apply regardless of whether a claimant lives in Hawai‘i or in the contiguous United States.

Legal Deadlines

Similar to claims under the FTCA, claims brought under the 2020 NDAA are subject to a two-year statute of limitations, which means that the claim must be filed within two years of the date on which the claim accrues. The statute of limitations was extended to three years for claims filed in calendar year 2020.

About Davis Levin Livingston

Located in Hawai‘i, Davis Levin Livingston is one of the national leaders in representing individuals and dependents against the federal government in malpractice claims. In the past, our firm has been forced to turn away potential clients who were active-duty service members due to the Feres doctrine; now, because of the 2020 NDAA, we are able to represent active-duty service members in claims against the federal government.

Our Hawai‘i attorneys look forward to helping our active-duty service members receive compensation from the federal government by providing the following services:

  • Investigation and evaluation of potential claims;
  • Analysis of medical issues;
  • Determination of the appropriate standard of care;
  • Identification of any breach of the standard of care;
  • Consultation and engagement of expert witnesses;
  • Procurement of appropriate interviews and other factual information; and
  • Overall claim compilation and submission to the Secretary of Defense.

Our legal team brings over 40 years of experience in evaluating and prosecuting malpractice claims to the table, and we work to achieve the best possible outcomes for our clients.

Under the 2020 NDAA, our fees are set at 20% of the recovery. In the event that our efforts are unsuccessful and your claim is denied, we will not collect any fee whatsoever — you won’t owe us a single penny. For successful claims in which the client receives compensation, we will collect no more than 20% of the recovery plus any outstanding costs (for example filing, printing, mailing, and/or expert witness costs) incurred in bringing the claim.

While we continue to work toward overturning the Feres doctrine so as to allow active-duty members of the military to bring claims against the federal government — as other individuals are entitled to under the FTCA — the 2020 NDAA offers the best opportunity for injured service members to be compensated for their malpractice-related injuries. Because this law was enacted so recently, there is little information available as to the timeline or efficacy of submitting claims. However, Davis Levin Livingston’s extensive experience in bringing claims against private entities and the federal government positions us to provide active-duty service members with the best possible representation and the highest likelihood of prevailing on their claims.

Please contact our esteemed Hawai‘i firm online if we can be of further assistance. Our lawyers offer free consultations to all new clients.