The U.S. government is on the brink of giving active duty military personnel half a legal loaf when it comes to a fundamental constitutional right — their chance to seek justice in the civil courts if they suffer harms while receiving medical services in noncombat situations.

If the U.S. Senate approves, as expected, a House-passed measure, and it is signed by the president, as he has said he will, active military members soon may be able to make medical malpractice claims, as they couldn’t before. But the disputes won’t be decided in the civil justice system. Instead, they will stay under military control.

That’s far less than ideal. To understand why, and how this compromise got struck, it’s necessary to dive a little into federal law.

As part of the negotiations for the whopping national defense budget, lawmakers say they hope to address a half-century mess created by the U.S. Supreme Court in a ruling involving members of the military and the Federal Tort Claims Act or FTCA.

Active duty military personnel cannot bring a medical negligence claim for care at a military facility. This is called the “Feres doctrine,” after the Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950). Under the Feres doctrine, members of the United States armed forces are barred from making a claim against the United States for personal injury or death arising “incident to service.” Military medical treatment received by a service member, while on active duty, has been held by the courts to be “incident to service,” and, thus not actionable, even if that treatment was for a purely elective procedure, and even if the procedure was performed negligently. This holds true for procedures that occur far from the battlefield and can’t be construed as affecting order in the ranks.

The U.S. Supreme Court recently declined to reverse its Feres ruling and left it up to Congress to decide if service members may sue for medical malpractice in the federal courts. Justices Clarence Thomas and Ruth Bader Ginsburg — who rarely agree on much — both wanted but were unsuccessful in getting their high court colleagues to revisit the unfair 69-year-old Supreme Court decision.

That left the issue to Congress, which found itself under new and robust pressure from a campaign by medically harmed service personnel, notably Army Sgt. 1st Class Richard Stayskal, a Green Beret who asserts he was misdiagnosed multiple times by military caregivers, leaving him now with a terminal illness.

Jackie Speier, a California Democratic congresswoman, introduced a bill named after Stayskal and that would allow troops to file medical malpractice suits in federal court. But the Pentagon reacted with ferocity, digging in and fighting the effort to alter the Feres Doctrine. After months of battling, the sides compromised, as reported by Task and Purpose, a widely read online site about military matters:

“Over the past year, Stayskal’s supporters on Capitol Hill have introduced legislation in his name in both the House and Senate that aimed to carve out a narrow exception in the Federal Tort Claims Act, which governs how citizens can sue the government. The original bills would have allowed troops to file lawsuits against the military for medical malpractice in specific cases, like those that occur at a state-side military hospital where both civilians and service members are treated. While the final language in the [military appropriation bill] is a victory for critics of the Feres Doctrine, it’s different from the original legislation in one key way: Service members are still barred from suing the government in federal court. Instead, the military would be required to establish procedures to investigate claims of medical malpractice, and if it is found to have occurred, the military would be responsible for determining what damages should be paid out. Under current policy, troops can still submit a claim, but they’re almost always bounced back and denied under Feres. ‘Was it what we started with? No, but it’s a step in the right direction,’ Stayskal told Task & Purpose. ‘Next year it could be a bigger step and then the year after it could be an even larger leap.’”

The site has further details of how this malpractice step, estimated to cost $400 million over the next decade, will go:

“The [budget] provision would allow claims for ‘personal injury or death caused by the negligent or wrongful act or omission of a Department of Defense health care provider in the performance of medical, dental, or related health care functions while such provider was acting within the scope of employment,’ according to the finalized version of the [defense appropriation measure]. In the event a service member is harmed, or killed, due to medical negligence, they or their family would have two years to bring a claim forward after the alleged malpractice occurs. In the case of claims that are active when the bill is signed into law, those service members or their families would have two years from the time the bill passes to bring their claims forward. Additionally, claims can only be filed for mistakes made at a ‘covered military medical treatment facility,’ such as a stateside military hospital, or those on large overseas bases. The bill does not extend to medical malpractice that occurs in a combat zone.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the havoc that can be wreaked on service members and their families when they receive bad or negligent military medical care at hospitals or clinics run by one of the armed services or the Department of Veterans Affairs. The Feres doctrine adds yet more complexity to malpractice cases that can be stressful to patients. Readers may want to check our law firm’s website for more details on who can and cannot sue over malpractice events at military hospitals and clinics.

Here’s hoping that the proposed changes in military malpractice claims will allow active duty service personnel a better crack at the fairer treatment they deserve for harms they may have suffered at the hands of government caregivers. The money here, as in many malpractice cases, isn’t the point, the righting of a wrong is: Just consider that the cost of this change breaks down to an estimated $40 million a year or so in a mammoth appropriation of $738 billion for 2020 alone — that’s $22 billion more than last year, by the way. It includes sums to set up a Trump wished-for Space Force and, as part of the deal the president made with Democrats, extends paid parental leave to 2 million more federal workers.

The news coverage of the Feres Doctrine cases also has made clear why this musty court decision may need to be sent to the junk heap of history. As the New York Times reported, the FTCA itself was passed to give injured parties more, not less, opportunity to seek justice when harmed by the government:

“The story started on a foggy morning in 1945, when an Army bomber crashed into the Empire State Building [see photo above] The accident killed 14 people and injured dozens more, but the victims and their families were unable to sue because of a longstanding legal principle called sovereign immunity, which barred citizens from suing the federal government unless Congress passed a law specifically consenting to the suit. In the public outcry that followed the crash, Congress passed the 1946 Federal Tort Claims Act, allowing a broad range of civil lawsuits against the government.”

The family of Lt. Rudolph Feres, for whom the doctrine is named, told the newspaper that they are angry still that the high court got it twisted, ruling against the airborne parachute instructor:

“Lt. Feres, then serving as a parachute instructor with more than 300 jumps under his belt and an infant son at home, was taking part in airborne exercises in northern New York when the boiler in his wood barracks exploded in the middle of the night, starting a fire that killed him and three other officers. His wife, Bernice Feres, sued the Army for $100,000, claiming that the camp had failed to have a fire guard on watch that night and that the boiler was known to be faulty. Her case, and two others that followed close behind, obliged the Supreme Court to decide for the first time whether the new law allowed suits over troops’ injuries away from the battlefield, caused by negligence. The justices ruled against Ms. Feres and the other two plaintiffs, who brought medical malpractice claims …”

Although the justices may have wanted to avoid causing the U.S. armed forces undue problems, particularly in combat situations, with the complexities of sorting out malpractice and other claims of harm by the military, which has other ways to compensate injured forces, the Feres Doctrine, the newspaper reported, has become a, perhaps, too broad a shield:

“The Feres doctrine blocks all lawsuits for injuries or deaths that occur ‘incident to service,’ a ban the courts have applied in strikingly broad ways. Being deliberately exposed to the radiation of nuclear tests, or being secretly dosed with LSD by researchers, or drowning in an off duty rafting trip because of a negligent guide have all been deemed injuries incident to service. So has being raped by a drill sergeant. In one case, the Supreme Court ruled that it was incident to service when surgeons opened up a soldier’s abdomen for follow-up surgery and found a 30-inch-by-18-inch towel inside him marked ‘Medical Department U.S. Army,’ left there from a previous operation. The doctrine has created glaring double standards. After the midair explosion of the space shuttle Challenger, families of civilian crew members were able to file lawsuits against the government, but the family of the pilot, a Navy captain on active duty, could not. Even so, the doctrine has proved durable, surviving five Supreme Court challenges and two previous attempts in Congress to modify it.”

Bloomberg news service also has reported on Feres Doctrine matters, noting that medical incidents leading to death or injury in the U.S. military’s global system of hospitals and clinics roughly trebled between 2013 and 2016, a troubling finding that the Pentagon asserted resulted from better reporting, not declining care. Bloomberg also pointed out that because of the doctrine, many doctors working with the military, particularly as contractors, haven’t felt the need to carry malpractice insurance. Critics say that Uncle Sam may be hiring doctors who can’t get the coverage because of their problematic past practice.

We’ll all need to watch closely to see whether the legal opening campaigned so hard for by Sgt. Stayskal and others provides a needed remedy, or if the military buries a potential positive in bureaucracy.