Service Members Can Now Hold the Government Liable for Medical Malpractice


The 2020 National Defense Authorization Act recently signed by President Trump contains a provision that significantly impacts civil litigation against the Defense Department and military entities. Under this provision, military service members in New York can now file suit against the federal government and work to hold them accountable for medical malpractice.

What Prompted the Change?

This shift in policy stems in large part from the Sergeant First Class (SFC, E-7) Richard Stayskal Medical Accountability Act, introduced by Rep. Jackie Speier (D-CA) and named for a service member who passed away due to undiagnosed lung cancer. The provision overrules the Feres Doctrine established in 1950 in the Supreme Court case of Feres v. the United States, which prohibited against servicemembers suing the armed forces or federal government for civil damages.

How Did Things Used to Be?

Previously, the Feres Doctrine stated that the Federal Tort Claims Act of 1946—which allows private citizens to sue the United States government based on the civil liability of someone acting on the government or country’s behalf—did not apply to service members, whether they suffered harm during combat operations or while receiving treatment at home from organizations like the Department of Veteran’s Affairs (VA). The prevailing argument in support of this position was that the military had its own procedures for dealing with negligent conduct by military personnel and administrators and that those procedures were sufficient to handle any case that might arise.

However, the military’s existing system provided compensation for service-connected disabilities and deaths but did not allow servicemembers injured through negligence to make their cases before an impartial judge and jury. Instead, all such matters proceeded through a military tribunal, typically leaving victims of medical malpractice by military healthcare providers without the support they needed.

Updated Rights of Servicemembers to File Suit

While the 2020 National Defense Authorization Act does now allow servicemembers to proceed with medical malpractice suits against the federal government, there are still several strict limitations imposed on this right. Servicemembers may file a medical malpractice claim for injuries suffered due to negligence at home, but they may not file suit for any personal injuries caused by a doctor’s mistake in an active combat zone, even if their actions would otherwise constitute medical malpractice based on the normal legal definition. Additionally, service members who file suit under this provision must have their claims adjudicated through administrative means, rather than in federal court.

If a claim is successful, subsequent payouts may come from different sources depending on how the Department of Defense values the case. Damages valued under $100,000 would come from the Department of Defense and go directly to the servicemember filing suit, or to a surviving family member designated as a beneficiary. Conversely, damages valued over $100,000 would be paid out by the Treasury Department, pending an internal review by that entity.

In the future, a statutory deadline of two years from the date of the malpractice will apply to any servicemembers seeking to file a medical malpractice claim under this provision. However, an exception applies to anyone currently filing suit in 2020. For these service members, the statutory period extends back to 2017, or three years prior to when this change was signed into effect.

Call a Lawyer to Learn How This Impacts a Case

An experienced medical malpractice lawyer could discuss how this change might impact your legal options and determine whether you are eligible to pursue compensation. Call now to learn more.