Military Medical Malpractice

A look at federal government liability

This project looks at government liability, with specific attention to military medical malpractice, government liability under environmental laws, and former employee's claims against the government. We also will look at the laws that exempt the government from liability suits.

I. Introduction

Throughout the history of the United States it has been well-established that the United States Government is immune from being sued unless it consents to being sued in the terms and conditions established by the government. Under the Federal Tort Claims Act, the United States Government initiated a limited waiver of sovereign immunity making the government amenable to suit in the same manner and same extent as a private individual in acts of negligence committed by its employees. Exceptions in the Act exist concerning any claim arising out of military activities and claims arising in a foreign country. Under law, the federal government is silent concerning negligence committed by itself in any situation dealing with medical malpractice.

II. Background

A. Feres v. United States

In 1950, a major historical court case was decided pertaining to military medical malpractice. In Feres v. United States, the representing party of Feres sued to recover damage for the alleged negligence of the Army because of a defective heating plan in army barracks quartering Feres. It was argued that the Army should have known the heating plan to be unsafe and that it failed to maintain an adequate fire watch. When on active duty in the Army, Feres had died in a barracks fire while sleeping.

When the Supreme Court reviewed the case, the court looked in the language of the Federal Tort Claims Act in determining the case of Feres and concluded that the affiliations between military personnel and the federal government is not comparable to those of private individuals because of three policy considerations:

1. The effect of lawsuits on military discipline.

2. The lack of conformity and unity of state laws.

3. The existence of compensation and benefits for service members and their survivors.

1. The effect of lawsuits on military discipline.

The military argued that making the military subject to damage suits "would drain military resources and would divert military resources from their primary task of defending the nation." Litigation of damages would place military personnel at opposite ends and in an adversarial role. It would cause dissension in that logistical problems would arise in efforts to bring witnesses to court from overseas, ships at sea, and long military exercises.

2. The lack of conformity and unity of state laws

Lawsuits that would take place in civilian courts would be adversely affected by the state in which the case is heard. State laws are not uniform so it might be more advantageous to bring a suit in one state than in other states.

3. The existence of compensation and benefits for service members and their survivors.

The military's compensation package is already almost free so the government should not be required to reimburse victims for actual expenses because of free medical care. Service members are entitled to continued care and benefits without showing fault by the service member's doctor. A comprehensive disability system for service members is in place for injured service members who are still on active duty or retired.

After reviewing all the facts and arguments of both sides, the Supreme Court ruled that a member of the uniformed services cannot sue the federal government, another service member or civilian government employee for injuries that occur because of medical malpractice. The Supreme Court immunized the military against lawsuits by service members for injuries arising in the course of service. This law or policy is now known as the Feres Doctrine.

The principles of the Feres Doctrine have continued to be held up in court. In United States v. Brown, 348 U.S. 110,112, the court reaffirmed its reluctance to intervene in military affairs. The court ruled that "the peculiar and special relationship of the soldier to his superiors, the effects of maintenance of such suits on discipline and the extreme results that might obtain if suits under the Federal Tort Claims Act were allowed for negligent orders given" could interfere with legitimate military matters.

Recently though, Congress has recognized the suffering from medical malpractice in the military and how the U.S. Armed Forces uniformed members have been affected.

B. Statutory Laws

Congressional bills H.R. 1054, S. 1483, and H.R. 3174 are all amendments to the United States Code of the Federal Tort Claims Act. These laws allow military service members to sue when medical malpractice occurs in a fixed medical facility that is operated by the U.S. Department of Defense. In effect, the bills repeal the Feres Doctrine in most cases.

The Congressional committees that submitted the bills disagreed that allowing military personnel to sue for medical or dental malpractice will result in any breakdown of military discipline. If military personnel "can sue on behalf of a dependent without a breakdown in military discipline, there is no reason why military personnel bringing suit on their own behalf for medical malpractice should result in any breakdown of military discipline. In fact, legislation should result in improved military medical care because of the threat of suit."

The committees also concluded that the lack of uniform state laws should not prevent military personnel from having jurisdiction to bring medical malpractice suits against the US Government. Dependents and spouses of military personnel are able to bring suits against the US Government so military personnel should be able to also.

II. Established policies and practices regarding evaluation of possible substandard care.

When possible substandard care takes place, investigation occurs at three levels: at the hospital, at headquarters, and at the Department of Defense.

Events that may represent substandard care are evaluated through four committees at the hospital:

1. Medical staff department committees

2. Credentials Committee

3. Risk Management Committee

4. Quality Assurance Committee

1. Medical staff department committees

The medical staff department committees have the primary responsibility for peer review and reviewing cases identified by clinical monitoring programs. They review the care that was given to military personnel and the performance of the providers (doctors, nurses, staff). The purpose of this review is to identify areas where care can be improved. If the committees finds a provider with a poor performance, it refers the case to the Credentials Committee for evaluation since it does not have authority to sanction providers for poor performance.

2. Credentials Committee

The Credentials Committee is responsible for reviewing the credentials of all providers at the hospital. The committee is made up of the medical staff department committee's chiefs. When a provider is referred to the committee, the committee is responsible for making the appropriate sanctions or actions involving medicine and law. At the end of the investigation, the committee sends its recommendations to the commander who takes responsibility for authorizing the sanctions or actions. The provider is allowed to appeal actions to the Surgeon General of the Service.

3. Risk Management Committee

The Risk Management Committee is responsible for reviewing malpractice suits and complaints. The committee is required to review all cases regardless of whether the patient can sue the government. Cases turned down because of the Feres Doctrine also are reviewed.

4. Quality Assurance Committee

The Quality Assurance Committee is responsible for making sure quality is built into the medical care process by the providers. They monitor the performance of hospital commanders is assuring good care.

The four committees mentioned above are required at all hospitals operated by the Department of Defense. They are responsible for supervising the activities of the hospitals and making sure providers are giving proper medical care.

III. How complaints from service members are handled and reviewed

Every hospital is required to display signs telling patients how to submit complaints regarding service or care. At virtually every hospital, an appointed patient representative receives complaints and an Inspector General evaluates complaints regarding any aspect of military life. Service members may also complain directly to a member of the legislature or executive branch of the federal government.

Investigation of the complaint is carried out and the case is referred to the Credentials Committee for review. After the investigation is carried out, the person who made the complaint is notified of the results of the investigation and any changes in policy that may have occurred from the investigation. If the claim is a malpractice claim, the policy is to notify the patient of the decision to either allow or disallow the claim.

Return to Federal Government Liability Outline


H.R. 3174, Report 99-288, 99th Congress, 1st Session, September 26, 1985, 25p. H.R. 1054, 100th Congress, 1st Session, March 19, 1987, 280p. S. 1483, 97th Congress, 2nd Session, March 12, 1982, 124p. Clinton, J. Jarrett, Department of Defense (Letter to House of Representatives), May 1, 1987, 5p.

Page last updated March 10, 1995.

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