Injured by Medical Malpractice, but Not Allowed to Sue: Part I

On behalf of Brown & Crouppen, P.C. posted in Medical Malpractice on Monday, June 20, 2011

Most of us take for granted that we can seek compensation from a medical professional who injures us by committing medical malpractice. But those serving our country in the military do not have that right because of a 1950 Supreme Court decision that bars service members from suing for malpractice related to medical care received while on duty. The family of an Air Force Staff Sergeant who was left brain dead due to errors shortly after a routine appendectomy is trying to challenge the law before the Court, though they admit it is a long shot.

The Court set the precedent in Feres v. United States, a 1950 decision that involved three active-duty servicemembers who had died after receiving negligent medical care at military hospitals. The Court upheld the so-called “Feres Doctrine” in a 1987 case, and has declined to hear further challenges to the rule.

Though Congress could end the Feres Doctrine by passing a law, it has resisted doing so. Most recently, Rep. Maurice Hinchey, D-New York, introduced a bill to overturn the rule in 2009, but it died in committee. Hinchey said that the Republican majority in the House of Representatives makes it unlikely his bill would pass if reintroduced.

Congress’ apparent satisfaction with the Feres Doctrine is part of the Obama administration’s argument against changing it. In papers filed with the Supreme Court by the U.S. solicitor general’s office, government attorneys said that Congress has “reject numerous bills” to repeal the doctrine. “Only confusion and instability would occur” if the Court overturned the precedent, the government attorneys said.

Some say that the current system allows for proper punishment for negligent medical staff and compensation for injured or killed servicemembers. In an article in Stars and Stripes, an attorney and former deputy judge advocate general of the Army said that military doctors who commit medical malpractice are routinely prosecuted in military court. Servicemembers’ military life insurance and other benefits are sufficient compensation for injuries caused by medical errors, the attorney said.

In our next post, we will discuss two victims of malpractice by military medical staff whose families were not allowed to seek compensation for their injuries.

Source: Stars and Stripes, “Is the Feres Doctrine fair?” Travis J. Tritten, June 19, 2011

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