For decades, active-duty servicemembers and their families have been barred from making medical malpractice claims against military hospitals, leaving troops and their families at the mercy of negligent health care providers. Recent legal changes have created an opportunity for military medical malpractice claims, but the process still leaves many without needed compensation.
The experienced medical malpractice lawyers at Levin & Perconti can help servicemembers and their families pursue compensation from military health care providers and explain the difficulties they may face along the way.
The Historic Change: From Feres Doctrine to Military Malpractice Claims
A 1950 decision by the U.S. Supreme Court held that the U.S. government was immune to medical malpractice claims by active-duty servicemembers. For the ensuing decades, the “Feres Doctrine” kept the status quo, preventing troops from making claims against military health care providers.
However, the SFC Richard Stayskal Military Medical Accountability Act of 2019 changed everything. Named for an Army soldier whose terminal lung cancer was ignored by staff at a military hospital for months, the act allows troops or surviving family members to file medical malpractice claims against health care providers employed by the Department of Defense.
The “Stayskal Provision” was passed into law as part of the 2020 National Defense Authorization Act, providing a lifeline to current service members and their families who have experienced negligence at a military hospital.
Current Military Medical Malpractice Claims Process
While military members still can’t file medical malpractice lawsuits in court, they can request the help of an attorney to pursue malpractice claims through a Pentagon review process. After the first year the law was in effect, military medical malpractice victims now have two years to file a claim after an incident.
The Stayskal Provision set aside $400 million for the Pentagon to investigate claims and award compensation. The Treasury Department reviews all claims of $100,000 and above approved by the DoD, but the Pentagon will directly pay out any claims valued lower.
As of June 2024, there have been 597 claims filed with the DoD. However, the military branches have only approved 20 of those claims — setting the current approval rate at roughly 3%. Claimants can appeal a denial, but can’t challenge the underlying medical decision, limiting the potential for any type of recourse.
Recent Rule Changes Benefiting Service Members
As of October 2023, the cap for non-economic damages in military medical malpractice claims is $750,000, up from $600,000.
While the Pentagon previously subtracted the value of any disability benefits from malpractice awards, it ended that practice in May 2024, allowing claimants to keep more of the compensation they deserve.
Types of Military Medical Malpractice Cases
Service members can now file claims for a variety of medical malpractice errors made by military health care providers. Examples of military medical malpractice cases include:
- Birth injuries and obstetric care errors
- Surgical mistakes
- Misdiagnosis and delayed diagnosis
- Emergency room negligence
- Failure to follow up on test results
- Medication errors
Why Legal Representation Matters for Military Malpractice Claims
With the DoD’s lack of institutional experience handling these claims and very low approval rate, the process can be confusing, frustrating, and ultimately fruitless, leaving American heroes without the financial support they need. The Army even denied a $2 million claim filed by Master Sgt. Richard Stayskal, the namesake of the new law, over the delayed lung cancer diagnosis that prompted the entire legal change.
An experienced medical malpractice attorney with Levin & Perconti can help you successfully navigate the military claims process and get the compensation you deserve. We can coordinate medical expert testimony, gather relevant medical records, and ensure your claim falls within the two-year deadline, giving you the best chances of success.
Levin & Perconti's Military Medical Malpractice Experience
Our trusted medical malpractice lawyers work as a team to get the best possible results for our clients, leveraging over 400 years of combined experience to take on even the toughest cases. We maintain a nationwide network of top medical experts and use those connections to strengthen our cases, never settling for less than fair compensation.
We’ve won over $2 billion in verdicts and settlements for clients like you, including a $3.5 million settlement for a veteran who was paralyzed due to a spinal epidural abscess that military medical staff failed to recognize and treat.
Steps to Take if You Suspect Military Medical Malpractice
With the two-year filing deadline and low approval rate leaving little room for error, it’s important to take action immediately after experiencing military medical malpractice. Key steps can include:
- Preserve all medical records and documentation, including any communications related to your treatment
- Document your experience in detail, taking thorough notes of where and when important actions occurred. Include information on potential witnesses.
- Seek an independent medical evaluation. Getting checked out by an outside health care provider can help confirm any delayed or missed diagnoses, treatment mistakes, or other medical errors.
- Understand the 2-year filing deadline. The “clock” for the filing time limit starts on the date of the incident, so don’t delay.
- Consult with an experienced military malpractice attorney. A trusted lawyer can help walk you through every step of the process, handling complicated and frustrating legal work so you don’t have to.
- Gather supporting evidence before filing. Your lawyer can ensure you have all relevant information and documentation, giving you the best chance of success.
What Compensation Can You Recover?
Depending on the circumstances involved, including the severity of your injuries and how they occurred, you can recover compensation for different types of economic and non-economic damages through a military medical malpractice claim:
Economic Damages
Economic damages compensate for monetary losses resulting from your injuries, including:
- Medical bills
- Lost wages
- Future care costs
- Lost future earning potential
Non-Economic Damages
Non-economic damages have subjective financial value and compensate for intangible impacts on your life caused by your injuries. They can include:
- Pain and suffering
- Emotional distress
- Disfigurement and disability
- Loss of enjoyment
Under current regulations, non-economic damages for military medical malpractice claims are capped at $750,000.
Alternative Options for Military Medical Malpractice Victims
If you cannot recover compensation from the Pentagon through a military medical malpractice claim, there are still some options available to you.
Depending on the nature of your injuries, you may be eligible for VA disability benefits, including medical care and monthly payments. If your injuries prevent you from continuing your active service, you can receive disability retirement pay from the military.
Our knowledgeable medical malpractice attorneys can help you understand your legal options and pursue any available compensation.
Request Legal Help if You Were Injured or Misdiagnosed in a Military Treatment Facility
If you were hurt because of treatment mistakes at a military hospital, the trusted medical malpractice team at Levin & Perconti is ready to help you file a claim within the two-year deadline.
Contact us online or call (312) 332-2872 today to schedule a free consultation. We work on contingency, meaning you won’t pay us anything unless we win your case.
