How an Active-Duty Service Member Can Pursue an Administrative Claim for Medical Malpractice

As a veteran-owned personal injury law firm, we know firsthand the sacrifices and dedication required when you volunteer in the Armed Forces to serve your country. As an active-duty service member, you should be able to count on nothing less than exceptional medical care.

But what if the medical treatment provided by the United States military fails to meet those standards or, even worse, results in injury or harm? You might be wondering, “can you sue the military for medical malpractice?” While you can’t “sue” a military doctor or hospital for medical malpractice if you’re an active-duty service member – you can get compensation via important changes in the law.

In this blog, a military medical malpractice lawyer answers, “How an active-duty service member can pursue an administrative claim for medical malpractice,” and explains what else you need to know about filing a claims

At The Doctor Lawyer Team, we combine legal and medical expertise to help you obtain maximum compensation in your medical malpractice case against the military. Call us at (833) DLT-WINS or (833) 358-9467 to schedule your FREE case evaluation. We represent military families and service members nationally.

What is Military Medical Malpractice?

Before answering the question of whether you can file a medical claim for military medical malpractice, it’s helpful to go over what military medical malpractice is and how a recent federal law impacts the answer.

Military medical malpractice occurs when a military or federal healthcare provider, such as a doctor or nurse working within military medical facilities, fails to provide the standard of care that a reasonably competent professional would have provided in a similar situation, resulting in harm or injury to military personnel, veterans, or their dependents.

You can read about medical malpractice in more detail here. If you are specifically dealing with a birth injury caused by medical malpractice, this blog provides helpful information.

The Feres Doctrine: A Key Hurdle for Active Military Service Members

What is the Feres Doctrine?

The Feres Doctrine is a legal precedent established by the 1950 Supreme Court case Feres v. United States, which prevents active-duty military personnel from suing the federal government for injuries that are "incident to service." This includes medical malpractice cases.

Why Was the Feres Doctrine Created?

The Feres Doctrine was created to protect the government from liability for actions taken during military operations. It was based on the idea that military service members should not be able to sue the government for injuries sustained during service since they have access to comprehensive compensation and medical care through the military's own benefits system.

National Defense Authorization Act and the Richard Stayskal Medical Accountability Act

In December 2019, the National Defense Authorization Act was passed and included a provision known as the Richard Stayskal Medical Accountability Act. This provision provides a significant change regarding medical malpractice claims for active-duty military personnel.

The Richard Stayskal Military Medical Accountability Act named after Richard Stayskal, a Purple Heart Army Green Beret, who suffered due to medical malpractice, amends the Feres Doctrine by creating an administrative procedure for active-duty service members to file a claim requesting compensation from the Secretary of Defense for medical malpractice that occurs at military medical facilities.

However, it is important to note that this provision still does not allow active-duty service members to “sue” the federal government in federal court directly and does not apply to care provided at a medical treatment location deployed in an area of armed combat.

Filing a Claim under the Military Medical Accountability Act (MMAA)

Eligibility Criteria

To file a claim under the MMAA, the following conditions must be met:

• You (claimant) must be an active-duty service member
• You have been harmed by medical malpractice
• The medical malpractice must have occurred at a military medical facility by a Department of Defense (DoD) healthcare provider within the United States
• The claim must be filed within two years of the incident

The Claims Process

Before starting the claims process, we highly recommend you consult with an attorney experienced in MMAA cases to help you navigate the complex legal process, gather evidence, and advocate on your behalf. It’s important that your claim not only be accurate and submitted to the right agency but also includes all relevant information and documentation.

To file an administrative claim under the MMAA:

1. Gather information: Collect all relevant information and documentation related to the alleged medical malpractice, including medical records, treatment details, and any correspondence with healthcare providers.
2. Prepare your claim: Create a written claim that includes the following required elements:
   • The factual basis for the claim, identifying the conduct constituting malpractice
   • A demand for a specified dollar amount as compensation
   • Your signature or the signature of your authorized agent or legal representative
   • If filed by your attorney, an affidavit from you affirming the attorney's authority
   • If filed by an authorized representative, an affidavit from the representative affirming their authority
   • Include an affidavit affirming consultation with a medical expert who believes that the DoD healthcare provider's actions caused the alleged harm due to a breach in the expected standard of careIf you’re represented by an attorney, include an affidavit from the attorney affirming they consulted with a healthcare professional who provided the same opinion
3. Submit your claim: File your claim with the appropriate DoD agency or office responsible for processing medical malpractice claims. Contact your local military installation's legal assistance office for guidance on where to submit your claim.
4. Wait for a response: After filing your claim, wait for the DoD to review it and provide a response. They may deny the claim, offer a settlement, or request additional information.
5. Negotiate or appeal: If you disagree with the DoD's decision, you may attempt to negotiate a settlement or appeal the decision through the appropriate legal channels.

How a Veteran Military Medical Malpractice Lawyer Can Help

A veteran military medical malpractice lawyer can provide valuable assistance by:

• Evaluating the merits of your case: A military medical malpractice lawyer can help you determine if your case has merit and if you are eligible to file an administrative claim under the MMAA.
• Gathering evidence and documentation: A lawyer can assist in collecting medical records and other relevant evidence to support your claim.
• Navigating the claims process: Filing a claim under the MMAA can be complex and time-consuming. A military medical malpractice lawyer can help guide you through the process, ensuring all necessary paperwork is completed and submitted on time.
• Negotiating settlements: In cases where the DoD approves your claim, a lawyer can help negotiate a fair settlement on your behalf.

By enlisting the help of a military medical malpractice lawyer, active-duty service members can navigate the complex legal process of filing an administrative claim under the MMAA and maximize their chances of receiving fair compensation for their injuries. See our short video discussing whether you can or should represent yourself when filing an FTCA claim, which is equally applicable here.

However, as we discussed, if an active-duty service member’s administrative claim is denied, they are not allowed to sue the federal government. But what about veterans and qualifying dependents? In the next blog, we’ll answer the question, “Who Can Sue a Military/VA Doctor or Military/VA Hospital for Medical Malpractice?”

Key Milestones Impacting Military Medical Malpractice Claims for Active Duty Service Members

Are You an Active Duty Service Member and Have a Medical Malpractice Claim?

At The Doctor Lawyer Team, we are a veteran-owned personal injury law firm with over 40 years of trial experience and a proven track record of success. As veterans, we know firsthand the challenges you’ll face filing an administrative claim with the Department of Defense under the MMAA.

Attorney Paul McConnell is a former Marine Corps infantry officer, federal prosecutor, and trial judge. Dr. Michael Giordano is a board-certified neurosurgeon and an attorney with an active background in reviewing personal injury and medical malpractice cases for over 18 years, including several years at one of Connecticut’s most respected personal injury and medical malpractice firms.

Contact The Doctor Lawyer Team today to schedule your FREE case evaluation by calling our military personal injury lawyers at (833) DLT-WINS or (833) 358-9467. We have offices in Hartford, New Haven, Groton, Bridgeport, New Canaan, and Greenwich. We also represent military service members nationally.

If more convenient, you can also complete our online form here.

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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

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(833) DLT-WINS; (833) 358-9467
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