In the military system, a fitness-for-duty evaluation determines whether a service member is medically and psychologically capable of performing their duties. Under ideal circumstances, these evaluations ensure force readiness and protect both military personnel and missions. But what happens when a service member is compelled into such an evaluation after a medical error or malpractice event? Can a medical misstep shift the burden onto the service member, and what rights do they retain?

At Khawam Ripka LLP, we’ve encountered cases where medical negligence leads not only to injury, but to administrative consequences—forcing the injured party to prove their fitness. In this blog, we’ll examine what forced fitness-for-duty evaluations mean in the aftermath of medical error, the legal protections available, and how affected service members can defend themselves.

What Is a Fitness-for-Duty Evaluation?

A fitness-for-duty evaluation (sometimes called a medical evaluation board or physical evaluation board in military parlance) is a process by which the military determines if a service member can continue in duty given their health status. It covers physical health, mental or psychological conditions, and whether any condition interferes substantially with mission performance.

In routine settings, such evaluations follow medical diagnosis or reporting of symptoms. But in adverse contexts—especially after a medical error—the order for such an evaluation may be wielded as an administrative tool rather than a purely clinical necessity.

Why a Fitness Evaluation Might Be Forced After a Medical Error

When a medical error occurs—say surgical complications, misdiagnosis leading to worsening symptoms, or an adverse reaction—military command or medical authorities may view the affected service member as a higher risk. The logic goes: if your health is degraded (even due to the hospital’s error), perhaps you are no longer fit for duty.

However, using a forced fitness evaluation in this way raises serious legal and ethical concerns:

• Burden shift: The service member is required to “prove” they remain fit, despite being harmed by medical negligence. 
• Retaliation risk: Command might use the evaluation as leverage—to remove, reassign, or separate a troublesome member. 
• Due process concerns: The fairness of imposing an evaluation after the member is injured may be questioned. 
• Diagnosis confusion: The medical condition to be evaluated might stem from the very error being “tested.” 

In federal employment contexts, requiring fitness evaluations as retaliation for whistleblowing or error reporting has been a recognized risk. Indeed, some federal workers have flagged that fitness-for-duty orders were used as retaliatory pressure.

Legal Protections and Statutes to Know

10 U.S. Code § 1214a — Protection for Members Found Fit

Under 10 U.S.C. § 1214a, if a Physical Evaluation Board (PEB) previously found a member fit for duty, they can’t be involuntarily separated or denied reenlistment on the same medical condition—except under reevaluation authority held by the Secretary.

This statute provides a floor of protection: a past determination of fitness should ordinarily prevent repeated administrative punishment based on the same condition unless significant changes occur.

Due Process & Military Administrative Law

Service members subject to fitness evaluation orders are entitled to procedural fairness. This typically includes notice, access to medical records, a chance to present evidence (expert medical opinions), and appeal rights through the chain of command or PEB processes.

If an evaluation is ordered unjustly—e.g. as retaliation or based on flawed assumptions—affected personnel might challenge it through internal appeals or judicial review in some instances.

Challenges When Malpractice and Fitness Tests Collide

Causation & Medical Attribution

A core problem is discerning whether the medical condition under review stems from misconduct or is unrelated. After a medical error, the cause-and-effect chain may be murky. The service member may argue that their reduced capacity is caused by the error—not by underlying unfitness.

Expert Evidence Conflicts

Competing expert opinions will play a central role. The command’s medical board may rely on military physicians, while the service member will need independent experts to testify that the condition (even if real) doesn’t justify loss of duty.

Administrative Burdens & Time Limits

Fitness evaluations and associated administrative reviews follow strict timetables. Missing a procedural step or deadline can foreclose challenges—even if the case has merit.

Overlap with Disability and Medical Discharge

A forced evaluation may result in separation, medical retirement, or reduced rank. These outcomes tie into the Physical Evaluation Board (PEB) and disability systems, where conditions previously seen as service-connected or error-related may be re-evaluated.

Steps to Protect Yourself If You Are Forced into an Evaluation

1. Document Thoroughly
   Record all medical events, dates, communications, and any signs that the evaluation was ordered after or because of medical error. 
2. Request Complete Medical Records
   Ensure you have all clinical, surgical, diagnostic, and follow-up records (both from military and civilian providers). 
3. Obtain Independent Expert Analysis
   Bring in civilian or specialist medical experts early to establish causation, prognosis, and counter-arguments to forced fitness claims. 
4. Follow Procedural Rules Meticulously
   Pay close attention to deadlines for appeals, hearings, and submissions. 
5. Invoke Applicable Statutes
   If you had been previously found fit, cite § 1214a as a defense. Challenge any evaluation order that double-counts the same condition unless new evidence justifies it. 
6. Seek Legal Counsel Early
   A military-medicine attorney can help navigate the procedural complexities and defend against misuse of the fitness-for-duty tool. 

Real-World Consequences of Forced Evaluations

Forced fitness-for-duty evaluations following medical errors often lead to:

• Separation or demotion 
• Unfavorable medical discharge 
• Loss of benefits or service retirement pay 
• Psychological stress and career derailment 

If judicial or administrative review finds that the evaluation was unjustified or retaliatory, affected members may win reinstatement, reversal of adverse actions, and recovery of lost pay or rank.

Conclusion: Medical Errors Shouldn’t Be Transformed Into Administrative Punishment

When a service member is harmed by medical error, imposing a fitness-for-duty evaluation as if they were at fault transforms the victim into the defendant. That shift contravenes fairness, due process, and the principle that negligence should not be punished by administrative sanctions.

At Khawam Ripka LLP, we defend military personnel who face forced fitness evaluations after a medical misstep. We understand the intersection of malpractice law and military procedure, and we fight to ensure that injured servicemembers aren’t further punished for suffering.

📞 If you or a loved one is facing a fitness-for-duty evaluation in the aftermath of medical error, contact us today or visit ForTheMilitary.com to schedule a confidential consultation.