This month marks the anniversary of the signing of the National Defense Authorization Act. For years, military service members had been barred from filing medical malpractice claims against the federal government and its medical providers. This law opened the door to an entire class of medical malpractice litigation. Service members and their families now can sue for personal injuries and wrongful death stemming from medical malpractice by military medical providers. Medical malpractice attorneys can diversify their practices with this new stream of business, but only if they are prepared to litigate the novel legal issues presented by this new law. There are substantive and procedural issues that will create challenges in the practice of this new area of medical malpractice law.
WHAT THE 2020 NATIONAL DEFENSE AUTHORIZATION ACT ALLOWS
Since the 1950 Supreme Court opinion in Feres v. United States, active duty military personnel have been barred from holding the federal government liable for personal injuries or wrongful death suffered as a result of their service. This long-standing rule was changed radically last year, allowing a whole new class of personal injury and wrongful death claims – with two important caveats.
First, these claims cannot be filed in federal court. They must be adjudicated administratively. The Department of Defense will pay substantiated claims up to $100,000. Claims over $100,000 will be reviewed and paid by the Department of the Treasury. Notice that these are administrative departments with little experience in substantive issues of law. Second, medical malpractice claims will still not be allowed for substandard care issued in a combat zone. Combat zones are areas with official designations by the Internal Revenue Service for the purpose of administering tax benefits to the service members who are stationed there. It includes actual combat areas, direct combat support areas, and qualified hazardous duty areas. Unfortunately, this administrative tax designation does not account for the reality of providing medical care to military service members.
THE CHANGES LITIGATORS MUST BE PREPARED FOR
As with any type of personal injury claim, there will be both procedural and substantive legal changes that litigators must be prepared for. The procedural changes are fairly straightforward: the statute of limitations on these claims is two years from the date of injury. There is a slight extension at the beginning that allows victims of military medical practice as far back as 2017 to file claims in 2020, but after that, the strict two-year statute of limitations applies. Second, it is important to note that there is very little in the way of an appeals process for these claims. If a plaintiff disagrees with the Department of Defense’s assessment of the claim, there is no provision to appeal to the federal courts. Any appeals process will be internal to the Department. This is a problem because the Department of Defense has little experience in handling personal injury claims. Litigators must be prepared for the procedural challenges of such a limited appeals process. It will be more important than ever to have convincing evidence that firmly establishes your case from the moment a claim is filed.
As with any area of law, these new claims will bring up novel legal issues that are not yet settled questions of law. For example: what is the standard of care for a military medical provider? Is the answer different if the provider is near a combat zone? What if the injury was not in a combat zone, but a mass casualty incident created a massive strain on medical resources? All of these situations can change the standard of care in a given case. And with the Department of Defense’s lack of experience in medical malpractice issues, it will be critical for litigators to be prepared with experts who have actually been in these military scenarios. Your usual medical malpractice experts may not have the military experience to persuasively testify about what care should have been rendered under such extreme circumstances.
Causation is another critical element of any medical malpractice case. Military cases can be complicated by the circumstances of the underlying injury. Even if a member is not serving in a combat zone, he or she can sustain serious injuries while on the job. Service members routinely work with dangerous machinery, heavy artillery, ammunition, and other hazardous equipment that can cause very serious injuries. In such a case, it can be difficult to ascertain which portion of the plaintiff’s injuries were caused by the initial injury and which were due to medical malpractice. Again: it is critical that your expert witnesses have experience with these issues. If you hire a medical expert without trauma experience, or trauma experience unrelated to military equipment and conditions, he or she may not be able to persuasively establish causation. The same issue arises in contributory negligence. If the Department of Defense alleges that your client contributed to his or her own injuries, you will need to establish the standard of care for a service member in your client’s position. This, too, requires expert testimony from someone who has extensive experience in the military.
COMPREHENSIVE LITIGATION SUPPORT FOR MILITARY MEDICAL MALPRACTICE
The establishment of military medical malpractice claims opens up exciting practice opportunities for litigators. It will also present many unique questions and challenges. Practitioners must be prepared to answer unsettled questions of law in unique situations that have not yet been brought to court. Litigators must also be prepared to prove their cases to an inexperienced administrative claims system within the Department of Defense rather than experienced judges who routinely handle medical malpractice cases. You don’t have to face these challenges alone. Guidepoint can connect you with the experts, data, and research that will help you win your case. Contact us today to learn about how our services support all of your litigation issues.
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