The Slow Moving Progress of Suing the Military for Medical Malpractice

The passage of the Honoring our Promise to Address Comprehensive Toxics (PACT) Act of 2022 has been cause for celebration. For the first time in decades, our armed forces will finally be able to get the care they need for the injuries they sustained from toxic exposure. Most of the news coverage has concerned burn pits and the water contamination of Camp Lejeune, but there will also be justice for veterans exposed to things like DDT.

While the passage of the law is good news for those injured, recent reports indicate that servicemembers who have been victims of medical malpractice are still slogging their way through claims. According to Military.com, “troops have filed 448 claims with the Departments of the Army, Navy and Air Force seeking more than $4 billion in damages. But of those, just 11 have been settled, an approval rate of 2%, while more than one-quarter have been denied.”

An attorney involved with the National Defense Authorization Act (NDAA), Alan Ripka, said one of the reasons for a slow response to service claims is due to the fact that no new attorneys were hired after the NDAA was passed. This is akin to splitting a baseball team into two separate teams and not hiring more players. So while a wave of claims are being filed, the government only has the same amount of lawyers they had before service members were allowed to file malpractice claims.

Not only that, but “the appeals process does not include debate over the merit of claims. Ripka said that those reviewing appeals simply look at whether the processing of the claim was handled and denied correctly under the rules that established the practice, with no input from troops’ attorneys.” Ripka went on to compare this to having the Yankees be able to umpire their own game.

A brief history of military medical malpractice claims in the US

The road to justice for our veterans and active duty servicemembers has been a challenge. Passed in 1946, the Feres Doctrine states that “The United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.” One of the reasons the Supreme Court gave for supporting the Feres Doctrine was that members of the armed forces were already receiving “veterans’ benefits to compensate them for injuries suffered incident to service.” The problem is that it also prevented them from filing a medical malpractice suit against any employee of the Government.

Although a servicemember may be injured while on active duty, they should expect to be treated safely when receiving medical care at home.

In 2019, Green Beret Richard Stayskal testified in Congress that military medical professionals failed to identify and diagnose his cancer back in 2017. When he eventually went to a doctor off the military base, he was diagnosed correctly with stage 3 lung cancer.

This was a case of negligence and oversight on the part of government employed medical professionals. Had they taken the mass in Stayskal’s lung as seriously as they should have when they first noted it, perhaps the cancer would not have advanced to the level it had.

There have been countless others in similar positions to Stayskal. Brian Tally, a former Marine, lived in debilitating pain because the VA would not help him. Corpsman Jordan Way died of opioid toxicity because of a shoulder surgery gone wrong, and an Air Force Staff Sgt. suffered a fatal heart attack because he was overdosed on fentanyl by a negligent nurse.

Because of Stayskal’s testimony in Congress, the National Defense Authorization Act for fiscal year 2020 was passed. This law created a new path for service members to file claims for medical malpractice against government employees. This was a great step forward for our veterans and armed forces members in seeking recourse for injuries and health risks they never agreed to and never should have never suffered.

Is the NDAA making progress?

Two years after its enactment, one would think that those injured in government run medical facilities would be seeing favorable results in their cases. Unfortunately, the process is slow and less than transparent.

If you or your loved one was a victim of medical malpractice at a VA hospital or by a VA medical professional, you want an experienced attorney on your side. The VA is the largest healthcare provider in the country, and it has a history of medical negligence. Because it is run by the federal government, however, it is also one of the country’s largest bureaucracies – and that means it can take a very long time to get justice. Working with an attorney who has experience handling Federal Tort Claims Act cases and medical malpractice cases may be your best chance for a successful outcome.

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