The Pentagon has announced a significant change to the military malpractice claim process, increasing the cap on non-economic damages for service members from $600,000 to $750,000, signaling a shift in the handling of these sensitive cases. This adjustment comes as a direct response to ongoing criticisms and the pressing need for a more transparent and fair system for service members who have suffered due to medical negligence at military facilities.
Under the Feres doctrine, which has been in place since the 1950s, military service members were barred from suing the federal government for injuries that were considered incidental to their service, including medical malpractice. This long-standing rule had generated wide disapproval, leaving service members without a means to seek redress for negligence that civilians could challenge in court.
However, the landscape shifted with the 2020 National Defense Authorization Act (NDAA), particularly through the Richard Stayskal Medical Accountability Act. The act, named after Sergeant First Class Richard Stayskal, a soldier who was misdiagnosed with pneumonia when he actually had terminal lung cancer, created a pathway for troops to file compensation claims for malpractice at U.S. military medical treatment facilities. Despite the legal provision, the approval rate for claims has been startlingly low. The Army, the largest of the services, approved only 12 out of 258 claims, amounting to $3.3 million, which included a $2 million payout to the family of a soldier who was diagnosed with Stage IV rectal cancer after being denied multiple requests for colonoscopies.
An Army spokesman stated that they “strive to provide world-class medical care to soldiers and beneficiaries” and that they “employ a robust review and reporting system to ensure safe, high-quality care.” However, critics have argued that the process has been too slow and cumbersome to provide real help to service members. Natalie Khawam, the attorney for the soldier’s family, described the system as “outrageous,” pointing out the gravity of negligence and the dire consequences it can have.
The update to the cap on non-economic damages is one of the latest measures taken by the DoD to address the concerns raised by service members and advocates. Pentagon Press Secretary Brig. Gen. Pat Ryder stated that these actions are a direct response to input from service members and key stakeholders. This change is critical as it provides a higher potential for compensation for non-economic reasons, such as pain and suffering or loss of quality of life, which previously had been limited to $600,000.
Despite the increase in the cap, the number of claims actually being approved remains low. As of October 2022, just 2% of claims were approved, and even the claim of Master Sgt. Richard Stayskal was denied earlier in the year. The case of Stayskal filed a $20 million claim after military doctors overlooked a large tumor in his lung, which delayed his diagnosis and treatment. This low approval rate has prompted lawmakers and advocates to call for further reforms to the Pentagon’s malpractice policies to align with the civilian medical malpractice system.
The public has been given a 60-day window to comment on this change before the final rule is published by the Pentagon. This period for public feedback is a crucial step in the regulatory process, giving citizens and interested parties the opportunity to weigh in on the proposed amendments.
Relevant articles:
– Military Services Approving Roughly 3% of Malpractice Claims from Service Members, Military.com
– Can Active Duty Military Sue the U.S. Army, Navy or Air Force?, nationaltriallaw.com
– Pentagon Raises Cap on Service Members’ Medical Malpractice Claims, Military.com
– Federal Register :: Medical Malpractice Claims by Members of the Uniformed Services, Federal Register (.gov)