For the first time in over 70 years, servicemembers can now bring claims for injuries arising from medical malpractice committed by military health care providers. On Sept. 26, the U.S. Department of Defense (DoD) finalized a rule permitting Active Duty, Reserve, and National Guard members to submit claims through a nonadversarial administrative claims process that is separate and distinct from a lawsuit filed under the Federal Tort Claim Act (FTCA). While there are advantages and disadvantages of this new process, one thing is clear—for the first time since the Korean War, soldiers, sailors, Marines and airmen can finally obtain compensation for injuries due to medical negligence.
In 1950, the U.S. Supreme Court ruled in Feres v. United States that servicemembers could not file suit under the FTCA for injuries caused by the negligence of others in the military. This rule, which was extended to the medical negligence of military medical providers, created a total bar to recovery for even the most egregious medical errors. Feres has been controversial since its inception, and some of the most intense criticism has come from conservative members of the Supreme Court, including the late-Justice Antonin Scalia, who once wrote that the rationale behind Feres was both “absurd” and “unfair.”