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Military Service Members Can Now Open Medical Malpractice Claims – Here’s What You Need To Know

July 19, 2021

At Deratany & Kosner, we work with clients who are seeking justice for medical malpractice that they’ve endured. We’re experts in the field of medical maltreatment and liability, and I’ve seen a lot of medical malpractice cases throughout my work here so far. But a little-known fact about medical malpractice is that, up until now, military service members have been legally excluded from bringing medical malpractice claims against their branch of service.

Military service members who fight and die for our freedom and prosperity have been unable to seek justice for medical malpractice that they experience on duty. This legal loophole has allowed malpractice to go unpunished and has created an untold amount of suffering for service members who, in any other circumstance, would be able to seek justice. This past month, it was announced that service members can now bring medical malpractice claims – and while this long-delayed announcement is good news on principle, this progress is insufficient for many soldiers and their loved ones.

Usually, medical malpractice claims are brought through civil courts, where plaintiffs have an established and open process to seek justice and tell their stories. Military service members who experienced medical malpractice on duty or on base have been blatantly excluded from that process up until now because of the “Feres Doctrine,” which held that soldiers can’t sue for medical malpractice that happens “as a result of their service.” That doctrine has been widely applied to mean that any medical malpractice that happens on base or on tour is “as a result of service,” thus prohibiting soldiers from bringing the claims at all.

This past month, the Pentagon outlined new rules that allow military service members who have experienced negligence or medical maltreatment to have some recourse – but that doesn’t mean we’ll be seeing military service members get their full days in civil court anytime soon. As it now stands, soldiers who have been the victims of medical malpractice can bring complaints through an administrative process at the Department of Defense. It’s certainly progress that these claims can now be made at all, but it’s confusing – and infuriating – that brave military service members who fight for our free and fair judicial system are deprived of their full civil rights. This administrative complaint system is already bogged down with an inefficient, convoluted rollout, and it currently appears that the internal complaint system will not be a sufficient substitute for civil litigation.

It’s critical that anybody who has been the victim of medical malpractice is afforded their full options for civil litigation. Medical malpractice suits are not only how we get justice for people who have been wronged, they’re also a crucial check against repeat offenses by negligent or outright malicious providers. It remains to be seen how this separate military complaint system will provide that same recourse.

The irony that we are denying the individuals charged with defending the constitution the basic rights guaranteed by that very document is not lost on me. The 7th Amendment, which guarantees our civil right to a jury trial, is to preserve the common law distinction between the province of the court and that of the jury or as the case may be “the people.” Requiring a plaintiff to have their case heard by an administrative board is akin to obliterating the distinction between the province of the court and that of the jury. Moreover, administrative boards tend to be biased heavily in favor of the defendant on liability and they tend to be much more conservative in their assessment of damages or compensation.

I’m leery of endorsing this new system. While it’s a relief that military service members now have a process for some potential justice, it isn’t a replacement for civil litigation. Suffice to say, I believe the men and women who fight for our freedom should also be allowed to receive the fruits of that freedom.

Deratany & Kosner is grateful to our brave soldiers in uniform and their families for ensuring that the American justice system exists in the first place – and we stand ready to assist anybody who has questions about medical malpractice and their options for justice and recourse. Who you pick as an attorney in a medical malpractice setting is the single most important decision you can make. Patients who are impacted by medical malpractice should never attempt to handle a medical malpractice case on their own – hospitals and doctors’ insurance companies flat-out do not settle cases with underrepresented parties. You may hope for a quick resolution, but medical malpractice law is a complex and difficult field. Hire firms that have obtained multi-million dollar verdicts, not just settlements. Deratany & Kosner brings decades of experience in the medical malpractice world and we’re ready to help you seek justice. Contact us today.

– Michael Kosner, Deratany & Kosner Partner

Medical legal justice

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