Military Members Can Sue for Medical Malpractice. Has It Helped?

Imagine your dream being to serve your country, that you make it through grueling basic training and go on to accomplish your goals. You knew that you were signing up for an inherently risky profession and you accepted that fact, but did you ever think that the military would turn its back on you when you needed the medical care that you deserve?

Military service often comes with a slew of medical complications at some point. Whether it comes from long marches in full gear taking a toll on the body, or combat injuries that come with complications, you’re promised medical care when the need arises. When that care falls short or causes further harm, it may be indicative of medical malpractice – something for which service members have only recently been able to pursue claims. Unfortunately, the law isn’t meeting expectations of providing justice to these heroes.

The story of Corpsman Jordan Way

In 2017, the 23-year-old Navy man was stationed in California when he required shoulder surgery. The Naval hospital where he was admitted performed the procedure and sent him packing with the deadly pain killer, Oxycodone, only to have him return to their emergency room later that day in visible agony. He was given additional pain medication before again being sent home, and once again the following day when Jordan notified the doctor that the pain was still unbearable.

The Corpsman died just days after his surgery, and after ingesting nearly all of the 90 Oxycodone pills as prescribed during that short span of time. His cause of death? Opioid toxicity.

How opioid toxicity led to a medical malpractice claim

When Jordan died, the Feres Doctrine was still the law of the land when it came to service members having the ability to pursue a claim against the federal government for injuries related to poor medical care they received at the hands of military doctors. In December 2019, that all changed when Congress heard testimony from Green Beret SFC Richard Stayskal, who military doctors failed to diagnose with cancer. His compelling story led to the enactment of the National Defense Authorization Act (NDAA).

The Department of Defense (DoD) was ordered to create a claims process for medical malpractice in response to the new law, which would finally provide Jordan’s parents an avenue to have their son’s tragedy officially recognized.

The basis of their wrongful death claim states that:

• Their son underwent shoulder surgery to repair a tear and capsular shift at US Naval Hospital Twenty Nine Palms, California on 12/12/2017, returning later that day for an adverse reaction to prescribed medication.
• Health care providers failed to recognize and timely diagnose his adverse drug reaction.
• Health care providers falsely diagnosed their son with breakthrough pain, sending him home without follow up or treatment.
• As a result, on 12/16/2017, their son experienced a fatal cardiac arrest.

Filing claims has been futile

Nearly a year after Congress ordered the DoD to set up a claims process to give military members the ability to seek fair compensation they would have otherwise had a right to do in the civilian world, it still isn’t ready. The agency has no timeline as to when they will begin processing or paying out on filed claims. There is no lack of interest in pursuing this avenue for many military members or their families as one law firm alone has already submitted 112 claims.

Military medical malpractice can occur any number of ways but some include:

• Surgeons being ill-equipped to handle battlefield wounds
• Failing to listen to or take patients’ symptoms seriously
• Turning patients away and passing the buck to another
• Maternity injuries, including to newborns
• Failing to read medical files before administering advice
• Operating on the wrong part of the body
• Negligence in maintaining medical records
• Administering incorrect treatment

You do not have to wait for the DoD to announce the process is in place to file a claim if you have been the victim of military medical malpractice. While you can certainly pursue your claim on your own, there is much more to it than submitting a form. Consulting with a personal injury attorney with experience in filing these claims and negotiating settlements will ensure that your rights are being protected.

Please contact Paulson & Nace, PLLC through this contact form or by calling 202.463.1999.