Active duty military personnel near a small win on medical malpractice claims

Patrick Malone & Associates P.C. | DC Injury Lawyers
Contact

Patrick Malone & Associates P.C. | DC Injury Lawyers

The U.S. government is on the brink of giving crashempirestatebldg-240x300active 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Patrick Malone & Associates P.C. | DC Injury Lawyers | Attorney Advertising

Written by:

Patrick Malone & Associates P.C. | DC Injury Lawyers
Contact
more
less

Patrick Malone & Associates P.C. | DC Injury Lawyers on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.