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How to Bring a Claim Against the Military If You Are Injured on Active Duty

May 24, 2021 | Serious Injury

Filing a claim against the military when you are on active duty is very difficult, but it’s possible under certain circumstances. Here’s everything you need to know about seeking compensation for medical malpractice and the status on seeking claims for sexual assault, wrongful death and more.

Active service members in the Army, Navy, Air Force, Marines, Coast Guard and Space Force have little recourse to file lawsuits against the United States government in civil court. However, spouses, children and contractors can. That doesn’t mean service members are left hanging. Their options are more limited, and they must take a different approach.

Under a 2020 law, active-duty service members can seek compensation for medical malpractice by filing an administrative claim. Procedurally, this is different than a lawsuit, and service members must be very careful when bringing administrative claims because there is no appeal or review process once a decision on the claim is made. For this reason, service members should work with an attorney when bringing an administrative claim to maximize their chances of succeeding the first time around.

The Feres Doctrine

The Federal Tort Claims Act (FTCA) of 1946 established that the United States acts as its own insurer, and it governs how private parties can seek claims for damages against the United States government. In the early going, courts disagreed about how to handle cases filed by active-duty members of the military or their estates. Those cases moved through the system until, finally, the Supreme Court consolidated three similar cases with different outcomes into what is referred to as the Feres case of 1950. They had to decide, once and for all, how active-duty military claims should be handled. Out of those cases came the Feres Doctrine.

In each of the cases that made up the Feres case, the claimant died or sustained injury while on active duty because of the negligence of a government employee. In one case, a service member died in a fire in the barracks because of a defective heater. In another, a member died after undergoing surgery by an Army doctor. In the third, a towel marked “Medical Department U.S. Army” was found in the abdomen of a service member by an Army surgeon eight months after surgery.

The Supreme Court decided that the government was not liable under the FTCA for injuries to service members when they arise out of activity resulting from service. In other words, the Court prevented service members from suing the federal government under the FTCA when they are injured or die as a result of the government’s negligence.

However, the Feres Doctrine doesn’t apply to non-military personnel or family members who suffer injury or death as a result of the government’s negligence, according to PCVA attorney Michael D. McNeil.

“The Feres Doctrine bars active-duty, reserve and National Guard members from bringing a lawsuit against the government when they are injured in the course of their service, but it doesn’t bar private citizens,” McNeil said. “Spouses, kids and civilian contractors are not barred by the Feres Doctrine from bringing a lawsuit under the FTCA, so if a spouse gets hurt while living or even visiting a military base, they can bring a lawsuit against the government under the FTCA.”

Over the decades, lawmakers recognized that the Feres Doctrine is too constraining for members of the military, and in 2020 they passed the National Defense Authorization Act (NDAA), opening the door for service members to seek claims for medical malpractice.

Filing Claims Under the NDAA

What is the justification for service members being barred by the Feres Doctrine? McNeil explained that the United States acts as its own insurer so, in theory, service members can be made whole no matter what happens. If they get injured, they are covered by health insurance. If they die, their family receives a pension.

But in practice it hasn’t worked that way, spurring lawmakers to create a new process to file claims under the NDAA. However, the process is complicated, and members who want to file claims must get it right the first time.

There’s a two-year statute of limitations, which means claims must be brought within two years of the date the service member discovers the illness or injury resulting from government negligence, and the negligence must have occurred at a military medical treatment facility or by a Department of Defense health care provider. Unfortunately, service members injured in a combat zone cannot bring a claim under the NDAA, McNeil said. The claims are handled administratively, so they don’t go to a court of law. Where a service member submits their claim depends on their branch of service, and once received, the office of the Secretary of Defense evaluates them. That’s why it is best to have the help of an attorney when preparing your claim before filing.

“It is paramount to file a persuasive claim for the officials at the office of the Secretary of Defense who are reviewing it,” McNeil said. “Since there is no appeal or review process, it’s important you have all the facts in your claim and that you have identified the extent of the damages. A lot of service members who go it alone do not know exactly what the reviewer is looking for, what will persuade them, what damages they can claim and so forth. Attorneys that are familiar with these claims do.”

The Secretary of Defense can award up to $100,000 for medical malpractice claims. If the office determines the claim is worth more than that, the Department of the Treasury will conduct a second review and can award over $100,000.

Sexual Assault in the Military

Recent news reports about sexual assault in the military and inadequate responses from the chain of command have highlighted the need to provide a route for justice for survivors. Claims for sexual assault were initially a part of the 2020 NDAA but were taken out before the law was finalized. In early 2021, lawmakers introduced a bill that would take sexual harassment and assault claims away from the purview of the chain of command and allow members to seek damages from the Department of Defense in a similar administrative process to the military medical malpractice claims. However, non-military personnel who are sexually assaulted by service members can file a civil lawsuit against the military.

How to File an Administrative Claim or Lawsuit

If you suffered an injury while on active duty, PCVA can help guide you through the process of filing an administrative claim. If you are a civilian who suffered an injury or sexual assault by a member of the military, PCVA can help you seek justice in a civil court of law. Consultations with PCVA are always free, and you can start this process by filling out the form below to get in touch with a knowledgeable attorney right now.