Lawmakers unveiled the finalized version of the 2020 National Defense Authorization Act on December 9. Service members harmed as a result of a military doctor's mistake could seek compensation for their injuries, if the act passes Congress and is signed into law by President Donald Trump.
Passage of the law would give military personnel a form of legal recourse to seek compensation in cases of medical practices involving military clinicians for the first time in approximately 70 years. However, the law would not give service members the right to file medical malpractice suits against the U.S. government.
The act aims to get around the Feres Doctrine, a legal rule that prohibits service members from suing the U.S. government for negligence or wrongdoing.
In Feres vs. United States, the U.S. Supreme Court ruled in 1950 that the federal government could not be held liable when a military member's injury or death is considered "incident to service." Feres has been criticized for its vagueness and creating a double standard, in which civilians can file lawsuits and military members cannot.
Not a complete triumph
Though the passage of the law would be a win for service members, it's not a complete victory because they still cannot sue the government in U.S. court. Instead, the law would require the military to establish procedures to investigate claims of medical malpractice. If it is determined that it has occurred, the military would be responsible for determining what damages should be awarded.
Implementing the law, which is estimated to cost about $400 million over the next 10 years, would permit military members to file claims for "personal injury or death caused by the negligent or wrongful act or omission of a Department of Defense healthcare provider in the performance of medical, dental, or related healthcare functions while such provider was acting within the scope of employment," according to the finalized version of the act.
If medical negligence leads to a service member's injury or death, the person or his or her family would have to bring a claim within two years of the alleged medical malpractice. Claims can only be filed for mistakes made at covered military medical treatment facilities, such as a military hospital in the U.S.
Unfortunately, the bill does not cover incidents of medical malpractice that occur in combat zones. Also, the law would not allow military members to seek compensation for injuries caused by other types of incidents, such as training accidents, sexual assault, and workplace violence.
Nevertheless, this law may be valuable to those affected by the dental scan backlog at Walter Reed National Military Medical Center's Naval Postgraduate Dental School. It was reported in November that radiologists failed to examine about 2,000 dental cone-beam CT scans during a seven-year period, which resulted in at least one patient not being treated promptly.
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