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New York Personal Injury Attorneys

Injured Troops Can Now File Medical Malpractice Claims Against the U.S. Military

August 25, 2021 in

Since 1950, U.S. military personnel have been barred from seeking compensation against the U.S. military for medical malpractice claims no matter how negligent the treatment and how unfortunate the injuries. However, legislation passed by Congress now permits service members to file Administrative claims for medical malpractice. Below, the experienced New York personal injury attorneys at Sullivan Papain Block McGrath Coffinas & Cannavo P.C. provide further insight into how injured troops can go about seeking compensation for their medical malpractice claims.

The Feres Doctrine

In 1950, the Supreme Court issued a landmark decision in Feres v. United States, producing the Feres Doctrine, which prevents members of the armed forces who are harmed on active duty from bringing lawsuits against the federal government. However, this year, Congress passed legislation that allows service members or their representatives to file claims for personal injury or death caused by military healthcare providers in certain medical facilities.

The National Defense Authorization Act for Fiscal Year 2020

The legislation, the National Defense Authorization Act for Fiscal Year 2020 (NDAA), went into effect July 19, 2020. Implications of the NDAA are better explained in this notice from the Federal Register.

The new claims process is outlined in the NDAA is in addition to the compensation provided under the military’s compensation system, which covers training mishaps, combat injuries, motor vehicle accidents or other disabling injuries or death in the line of duty. The NDAA is separate from the Healthcare Resolutions Program. However, the Healthcare Resolutions Program did not act as an avenue for filing claims for compensation.

Filing a Claim Under the NDAA

There are restrictions to filing a medical malpractice claim under the NDAA. To be considered, a medical malpractice claim must be for injuries that were “incident to service,” according to the Federal Register. For active-duty personnel, that includes “almost any injury or illness” that occurred from medical care received at a military treatment facility from a Department of Defense healthcare provider. Malpractice claims should be filed with the service member’s respective branch, as stated in the Federal Register notice.

Reserve service members face stricter restrictions. A claim can be filed for reserve component service members only if it is in connection with personal injury or death that occurred while the member was in a federal duty status.

In order to receive compensation, a claimant must prove that the healthcare provider they received treatment from “had a professional duty to the patient involved, and by act or omission, breached that duty in a manner that approximately caused the harm.”

It is also important to note that it is the Department of Defense that will determine whether or not a claimant receives compensation, not through the judicial system like a traditional medical malpractice lawsuit. In addition, there is no discovery process. Because of this, it is critical that a claimant and their legal team provide proper supporting documentation with a claim. The Department of Defense also noted that all settlements will be “final and conclusive.”  This means that a service member cannot appeal or contest the determination.

The NDAA does place a strict deadline on when a service member can make a claim. All claims must be presented within two years of when the alleged malpractice occurred.

Seeking Help with Filing a Medical Malpractice Claim Under the NDAA

A monetary award for damages from  medical malpractice can ease the financial burden of medical bills and additional medical procedures that may be required.  Additionally, a monetary award provides compensation for an individual’s pain, suffering and wrongful death.  Our nation’s heroes deserve to be compensated for the pain and suffering that comes with receiving bad medical care. However, we know that filing a medical malpractice claim can be an overwhelming and confusing process, especially with the requirements and limitations surrounding the NDAA. Our trusted team of New York medical malpractice attorneys are ready to provide the support you need to ensure that you’re properly compensated. Contact our team at Sullivan Papain Block McGrath Coffinas & Cannavo P.C. today for a free consultation. Call (212)-732-9000 or fill out the form below.

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Our fee is on a contingency basis. If we don’t recover money for you, we will never charge you. If you are unable to come to any of our offices, we are happy to visit you at home or in the hospital.

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