Since 1950, military personnel have been unable to sue the government for personal injuries incurred as a result of service, including injuries caused by the negligence of a Department of Defense (DoD) healthcare provider. This is termed the “Feres doctrine,” named after the Supreme Court case of Feres v. United States, 340 U.S. 135 (1950). However, on January 1, 2020 a new law went into effect and provided, for the first time in 70 years, a pathway for service members to seek relief after suffering an injury due to the negligence of a DoD healthcare provider. In June of 2021, the DoD issued its regulation for filing such a claim. While it is certainly a sign of positive change that this pathway has been created, it is dampened by restrictive offsets to the potential award of damages.
In calculating an award of damages, the award granted will be offset, or reduced, by all DoD and Veterans Affairs compensation programs. The government explains that this provision is designed to prevent the United States from paying “more than once for the injury.” However, the categories of compensation that will be used to offset any award are so expansive that it may often entirely negate any aware.
Calculation of Damages. Damages may be awarded for two categories of damages: Economic and Non-Economic Damages. Economic damages have no cap and include expenses incurred due to the medical malpractice such as loss of income, earning capacity, or compensation. Non-Economic damages for pain and suffering, disfigurement, and loss of enjoyment are capped at $500,000.
Offset Provisions. Loss of income will be offset by things such as pay and allowances while a service member remains on active duty, disability retired or severance pay, incapacitation pay, involuntary and voluntary separation pays and incentives, Survivor Benefit Plans, VA disability compensation, and so many other DoD and VA compensation programs. Medical costs will be offset by things such as the value of TRICARE coverage and even future TRICARE coverage, assistance programs, and more.
As a result of these restrictive offset provisions, many service members who prevail on their medical malpractice claim against a DoD healthcare provider may walk away with next to nothing. The recently implemented rule provides a table demonstrating notional examples of benefits following a servicemember's death or permanent injury. The table indicates that if malpractice was found to have contributed to the death of a servicemember, no recovery to the family would exist unless the damages exceeded:
- For an O-5 (Age 38) with 16+ years of service who was married with two kids: $5,342,372
- For an E-6 (Age 29) with 10+ years of service who was married with two kids: $3,651,453
- For an E-4 (Age 22) with 3+ years of service who was married with one kid: $4,249,434
Likewise, the table indicates that if malpractice was found to have contributed to the permanent injury of a servicemember, no recovery would exist unless the damages exceeded:
- For a 100% disabled O-3 (Age 30) with 8+ years of service who was married with two kids: $2,969,814
- For a 100% disabled E-6 (Age 26) with 8+ years of service who was married with two kids: $2,367,576
- For a 50% disabled O-3 (Age 30) with 8+ years of service who was married with two kids: $1,979,658
- For a 50% disabled E-6 (Age 26) with 8+ years of service who was married with two kids: $1,137,684
Meaning, in order to recover any amount of money, the economic and non-economic damages need to exceed the figures that the services will calculate depending on the servicemembers age, expected benefits, etc., and only that amount which exceeds that lofty figure may be paid.
Worse yet, the DoD will only pay up to $100,000. “The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000.”
Unfortunately, this framework seems to provide compensation to only the most egregious of malpractice cases. If you or someone you know is a servicemember who has been subjected to medical malpractice by a DoD healthcare provider and is looking to discuss your circumstances, Patriots Law Group has experience in this area and can assist.
For more information on what is needed to file a claim, check out Part 1 of our blog series: New Rules Released for Service Members Seeking to File a Medical Malpractice Claim