In 1946, the United States Congress passed the Federal Tort Claims Act, also known as the FTCA, which allowed lawsuits to be brought against the government. Exceptions to the right to sue under the FTCA included servicemembers whose injuries occurred during wartime combat. However, with the introduction of the Feres Doctrine, active-duty service members were included in the exceptions to the FTCA’s right to sue.
“The Feres Doctrine still stands, but it is being challenged by a proposal in the 2020 National Defense Authorization Act,” says Attorney Joe Kopfler of Kopfler & Hermann, Attorneys at Law. “This new proposal could have a significant impact on the avenues available to injured service members for pursuing some form of compensation.”
The 2020 National Defense Authorization Act is a lengthy proposal that has passed the United States House and awaits further action by the Senate. If it becomes law, the 2020 National Defense Authorization Act, amongst many other things, will allow military families and service members who have military medical malpractice claims to have their claims reviewed by the Defense Department. If a claim is approved, they could then receive compensation.
The proposal does not eliminate the Feres Doctrine and its disallowance of federal military medical malpractice lawsuits by service members and their families. However, it does offer potential relief that is a step toward combating the Feres Doctrine. Ultimately, if enacted, the claims proposal would allow the Secretary of Defense to review claims against the United States government regarding uniformed service members’ injuries or deaths resulting from Department of Defense health care providers’ malpractice.
Sponsored by United States House Representative Jackie Speier, who is chair of the House Armed Services subcommittee on personnel, the claims proposal also offers a retroactive portion. If enacted, the Defense Department would allow the review of claims as far back as 2017.
It is no coincidence that 2017 is included, as this is when Special Forces Sgt. 1st Class Richard Stayskal claims Fort Bragg’s Womack Army Medical Center failed to properly diagnose his lung cancer, which is now stage IV. What’s more, it is Stayskal who credited for forging the bipartisan proposal by making numerous trips to Congress over the past months.
As of now, however, the 2020 National Defense Authorization Act still awaits further action by the Senate. This means that the future of service members’ medical malpractice claims — and whether the Feres Doctrine’s strength will be tested — is yet to be determined.