What Is Military Medical Malpractice?

Military medical malpractice is medical negligence that occurs at a Department of Veterans Affairs hospital or that is tied to a military doctor, nurse or other health care personnel. It is similar to any other type of medical malpractice in that it occurs when medical care falls below the standard of care. When this failure to meet the standard of care is the direct cause of a patient’s injury, then a patient can sue for medical malpractice.

However, there are some important differences between military medical malpractice and that which occurs outside the military.  It is important to contact an experienced law firm to help explain these differences before the allotted time for filing a claim expires. Contact us for a free consultation at 202-330-6290 or info@serranolegal.com.

Can I Sue The United States?

The doctrine of sovereign immunity prohibits lawsuits against the United States. This is a long-standing principle based upon a decision of the Supreme Court. The United States must waive immunity or consent to a lawsuit in order for a suit to proceed.

One such waiver is through the Federal Tort Claims Act (FTCA). The FTCA permits lawsuits against the United States when a government employee’s negligence caused an injury.

The FTCA only permits non-active military personnel and their dependents to file suit. Thus, if one meets these requirements and suffered an injury due to medical malpractice occurring at a government hospital, for example, then under the FTCA a lawsuit for military medical malpractice against the United States can go forward in federal court.

This means that any veteran or dependent, injured after receiving medical care at a VA, may sue the United States for military medical malpractice.

Can Active Duty Military Personnel Sue The United States for Medical Malpractice?

Historically, active duty members could not sue the federal government for medical malpractice. This changed in 2019 with the Military Claims Act which now permits active duty members to hold the federal government liable for medical malpractice. However, there are some major limitations. First, a service member cannot file a medical malpractice claim for personal injuries suffered in a combat zone. Second, a service member cannot file suit in federal court. Instead, a claimant files a complaint for medical negligence administratively. Decisions are made in an administrative hearing.

There is a two-year time limit for filing an administrative claim for active duty members. The change permits claims for injuries that occurred prior to the enactment of the new law. Unfortunately, if the medical malpractice occurred prior to 2017, then a claim cannot proceed.

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