Navigating Post-Discharge Military Medical Malpractice Claims – For the Military – Khawam Ripka LLP
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BREAKING NEWS: You can now file a claim for sexual assault while on active duty in the military, as per the recent 9th Circuit Court decision. Call us today for your free consultation!

Navigating Post-Discharge Military Medical Malpractice Claims

Military service members put their lives on the line every day, both in the line of duty and within the confines of military healthcare. While most medical professionals working with the military provide exceptional care, mistakes do happen. When they do, the consequences can be devastating for those involved. Military medical malpractice claims, especially post-discharge, present a unique set of challenges due to the structure of the military healthcare system and legal restrictions in place. For veterans or service members navigating these claims after leaving active duty, understanding the intricacies of the process is essential.

What Constitutes Military Medical Malpractice?

Before diving into the specifics of post-discharge claims, it’s crucial to understand what qualifies as medical malpractice in a military context. Just like civilian medical malpractice, military medical malpractice occurs when a healthcare provider within the military system fails to meet the standard of care, resulting in injury, harm, or death. Examples include:

  • Misdiagnosis or delayed diagnosis: Failing to correctly diagnose a condition or taking too long to diagnose it, leading to worsened outcomes.
  • Surgical errors: Mistakes made during surgery, such as leaving instruments inside the body or operating on the wrong site.
  • Medication errors: Prescribing the wrong medication or incorrect dosage.
  • Birth injuries: Harm caused to the mother or baby during childbirth due to negligent care.

These instances can occur in military hospitals, clinics, or by military healthcare providers. However, pursuing a claim after discharge is a complex process due to laws specific to military malpractice cases.

The Feres Doctrine and Its Implications

One of the primary challenges service members face when navigating military medical malpractice claims is the Feres Doctrine, a legal principle that has been in place since a 1950 Supreme Court ruling. The Feres Doctrine prevents active-duty service members from suing the federal government for injuries sustained “incident to service,” including medical malpractice by military doctors.

While this doctrine applies to those on active duty, it does not extend to veterans or dependents. If the malpractice occurred while you were on active duty, it might be challenging to pursue a claim, but there are certain exceptions and recent developments in the law that may offer options.

Changes in the Law: The National Defense Authorization Act (NDAA) of 2020

In a significant shift, the NDAA of 2020 included a provision allowing service members to file claims for medical malpractice in non-combat situations. This law permits active-duty personnel to file claims for negligent care received at military treatment facilities. However, there are some critical caveats:

  • No right to sue: While service members can now file claims, they cannot sue the government in federal court. Instead, claims are processed through the Department of Defense.
  • Time limits: Claims must be filed within two years of discovering the malpractice. Veterans, on the other hand, have a bit more leeway in pursuing claims after discharge.

Veterans who have suffered from malpractice while under military care post-discharge have the right to file a lawsuit, but the process can be tricky without proper legal guidance.

Filing a Post-Discharge Medical Malpractice Claim

For veterans, the restrictions of the Feres Doctrine do not apply post-discharge. If medical negligence occurred after separation from active duty, pursuing a claim becomes more straightforward. Here are the steps involved in filing a claim:

  1. Gather medical records: Start by obtaining all relevant medical records from the VA or military hospitals. These records are critical in establishing that negligence occurred.
  2. Identify the liable party: In military malpractice claims, the negligent party is often the federal government or a specific military healthcare provider.
  3. Prove negligence: Like civilian malpractice claims, you will need to prove that the healthcare provider’s actions deviated from the accepted standard of care and directly caused your injury or harm.
  4. File an administrative claim: Veterans must file a claim with the appropriate military department or agency before suing. The agency will conduct an investigation to determine if malpractice occurred.
  5. Await a decision: The department will either accept the claim and provide compensation or deny it. If denied, the next step is to file a lawsuit in federal court.

Statute of Limitations for Post-Discharge Claims

For veterans, the statute of limitations is an essential consideration. In most cases, you have two years from the date of the negligent act or the date when the malpractice was discovered to file a claim. It’s crucial not to wait too long to seek legal assistance, as failing to file within the statute of limitations could result in losing your right to compensation.

Common Challenges Veterans Face in Medical Malpractice Claims

While post-discharge claims offer a pathway to justice, veterans still face challenges, including:

  • Delays in obtaining medical records: The process of retrieving medical records from the VA or military hospitals can be time-consuming, often causing delays in filing claims.
  • Establishing negligence: Proving that the medical professional deviated from the standard of care requires expert testimony, which can be difficult to obtain.
  • Government immunity: Despite the changes to the law, certain protections and immunities may still apply, making it harder to sue the government in some cases.
  • Emotional toll: Pursuing a claim can be an emotionally draining experience, especially for veterans who are already dealing with the physical and emotional impact of medical malpractice.

Compensation in Military Medical Malpractice Claims

If your claim is successful, compensation may cover various damages, including:

  • Medical expenses: Costs of treatments, surgeries, and ongoing care related to the malpractice.
  • Lost wages: Compensation for income lost due to the inability to work because of the injury or harm.
  • Pain and suffering: Emotional and psychological distress caused by the malpractice.

Veterans may also be eligible for disability benefits if the malpractice resulted in a service-connected disability.

The Importance of Legal Assistance

Navigating the complexities of military medical malpractice claims requires specialized knowledge of military law, government procedures, and medical standards. Seeking legal assistance from a law firm experienced in military medical malpractice cases can be the difference between success and failure in your claim. An attorney can help:

  • Gather evidence: Lawyers can assist in collecting medical records and expert testimony to strengthen your case.
  • File claims: They ensure all documentation is properly filed and deadlines are met.
  • Negotiate settlements: Attorneys can negotiate with the government or healthcare providers to seek fair compensation for your injuries.

Conclusion

If you’ve been the victim of medical malpractice post-discharge, you have the right to pursue compensation for your injuries. While the process can be complicated, understanding the steps involved and seeking legal guidance can help you achieve the justice you deserve.

At ForTheMilitary.com, we are dedicated to helping veterans navigate the legal complexities of military medical malpractice claims. If you or a loved one has suffered due to negligent care, don’t wait—contact us today for a consultation and let us help you get the compensation and support you need to move forward. Your service deserves the highest standard of care, and we are here to fight for your rights.

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Here at Khawam Ripka, we are passionate about helping heroes in the military get the attention and financial compensation they, and their families, deserve.

If you or someone you love has been a victim of military medical malpractice, we would be honored to represent them and their family in their claim.

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