What to Expect When Filing a Military Medical Malpractice Lawsuit – For the Military – Khawam Ripka LLP
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What to Expect When Filing a Military Medical Malpractice Lawsuit

Filing a military medical malpractice lawsuit can be a daunting and complex process, especially for those unfamiliar with the legal nuances associated with military healthcare systems. Military personnel and their families put their trust in the hands of military doctors and medical professionals, expecting the same standard of care as any civilian would receive. However, when medical errors occur, the consequences can be devastating, leading to long-term injuries, illnesses, or even death. Understanding what to expect when pursuing a medical malpractice claim within the military system can help you navigate this intricate legal path.

What Is Military Medical Malpractice?

Military medical malpractice refers to negligence or substandard care provided by a medical professional working for the U.S. government in a military facility. Unlike civilian malpractice cases, these lawsuits fall under a unique legal framework. For many years, active-duty military personnel could not sue for medical malpractice under the Feres Doctrine, which prohibited military members from bringing claims against the federal government for injuries related to their service. However, in 2019, the National Defense Authorization Act (NDAA) introduced changes, allowing active-duty personnel to file claims for medical malpractice in certain circumstances. Dependents and veterans have also always had the option to file lawsuits for negligence.

Initial Steps: Gathering Evidence and Filing a Claim

The first step in filing a military medical malpractice lawsuit is gathering evidence. To build a strong case, you must collect medical records, treatment details, and any documentation related to the malpractice. Consulting a qualified medical malpractice attorney, particularly one experienced in handling military cases, is essential. They can help you obtain the necessary medical records and provide guidance on how to proceed.

Key Evidence to Collect:

  • Medical records detailing the treatment
  • Expert testimony from medical professionals
  • Witness statements
  • Photos or videos documenting the injury

Once sufficient evidence is collected, the next step is to file an administrative claim with the Department of Defense. This is a crucial aspect of military medical malpractice lawsuits because, unlike civilian cases, military medical malpractice claims must go through this administrative process first. The statute of limitations for filing these claims is generally two years from the date of the injury or when the injury was discovered, so it’s vital to act promptly.

Administrative Process and Investigation

After submitting the administrative claim, the Department of Defense will review your case and conduct an investigation. This is a critical stage, as it determines whether your claim will proceed to litigation. The department will assess the merit of your case, review the evidence, and consult medical experts to determine if malpractice occurred.

During this investigation, the government may offer a settlement if they find sufficient evidence to support your claim. A settlement offer is an alternative to going to trial and can provide compensation without the need for a lengthy legal battle. However, it’s essential to consult with your attorney before accepting any offer to ensure it’s fair and adequately covers your damages.

If the government denies your claim or offers an unsatisfactory settlement, your attorney can help you move forward by filing a lawsuit in federal court.

Filing a Lawsuit in Federal Court

If your case doesn’t settle during the administrative phase, you may proceed with filing a lawsuit in federal court. Unlike civilian medical malpractice cases, military cases often involve the Federal Tort Claims Act (FTCA). The FTCA allows individuals to sue the U.S. government for negligence or wrongful acts committed by its employees, including military medical professionals.

Filing a lawsuit under the FTCA follows a formal legal process:

  1. Complaint: Your attorney will file a complaint in federal court, outlining your allegations, the negligence that occurred, and the damages you’re seeking.
  2. Discovery: During discovery, both sides exchange evidence, including medical records, expert witness testimonies, and other documents relevant to the case.
  3. Depositions: You, your attorney, and witnesses may be asked to give depositions, which are sworn statements used as evidence.
  4. Trial or Settlement: The case may either go to trial, where a judge or jury will hear arguments and make a decision, or it may be resolved through a settlement at any point during the proceedings.

How Long Does the Process Take?


Military medical malpractice cases often take longer than civilian cases due to the complexities involved in dealing with the federal government. The administrative process alone can take several months, and if the case proceeds to trial, it could take a few years to resolve. Patience and persistence are essential.

Damages in Military Medical Malpractice Lawsuits

If you succeed in your military medical malpractice lawsuit, you may be entitled to various forms of compensation, also known as “damages.” These damages are intended to cover the physical, emotional, and financial consequences of the medical malpractice.

Types of Damages:

  • Medical Expenses: Compensation for past and future medical bills, including surgeries, treatments, and rehabilitation costs.
  • Lost Wages: If your injury caused you to miss work or will affect your future earning capacity, you could be compensated for lost income.
  • Pain and Suffering: Non-economic damages meant to compensate for the physical pain and emotional distress caused by the malpractice.
  • Loss of Enjoyment of Life: If the malpractice has diminished your ability to enjoy everyday activities, you may be compensated for this loss.

It’s crucial to work with an experienced attorney who understands how to calculate and pursue the full range of damages you may be entitled to.

Common Challenges in Military Medical Malpractice Cases

Military medical malpractice cases come with unique challenges that are not present in civilian cases. Understanding these challenges can help manage expectations and avoid surprises.

  1. The Feres Doctrine: While the NDAA has made it possible for active-duty personnel to file claims, the Feres Doctrine still limits many cases. Claims directly related to combat operations or training injuries may still be barred.
  2. Complex Administrative Process: The administrative process is more involved and requires additional time compared to civilian malpractice cases.
  3. Limited Access to Evidence: In some cases, gathering evidence can be more difficult because military medical records are often handled differently than civilian records.

Working with a skilled military medical malpractice attorney is the best way to navigate these challenges successfully.

Conclusion

Filing a military medical malpractice lawsuit is a complicated process that involves navigating both military and federal legal systems. By understanding what to expect—from gathering evidence and filing an administrative claim to pursuing a lawsuit in federal court—you can better prepare for the journey ahead. Although the process can be time-consuming, the outcome can provide the compensation and justice you deserve for the harm caused by medical negligence.

If you or a loved one has been the victim of military medical malpractice, don’t wait. Contact us today at forthemilitary.com today to discuss your case and explore your legal options. Taking action now can make all the difference in protecting your rights and securing the compensation you deserve.

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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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