ACCESS TO JUSTICE FOR UNIFORMED MEN AND WOMEN SUFFERING FROM MEDICAL MALPRACTICE

I recently read an article in the Daily Journal about medical malpractice claims made against the military.  The article discussed the passage of the National Defense Authorization Act in 2020, which allowed uniformed service members to pursue injury or death claims against Department of Defense health care providers, and the Pentagon’s passage just this summer of regulations for the processing of these types of claims.

The regulations provide multiple requirements and procedures for the handling of these claims.  According to the article, the claims must arise from negligence committed by Department of Defense personnel and contractors, acting in the scope of their employment, and must have occurred at a Department of Defense “medical treatment facility”.  Health care services provided in other places, such as in the field, battalion aid stations, ships, planes, or deployed settings, do not qualify for these claims.  The medical care giving rise to the claim must pertain to an injury or illness that was “incident to service”, which usually means while the service member was on active duty.

The regulations do not provide for any discovery process, which would allow the claimaint and claimant’s attorney to obtain materials considered by the Department of Defense in making their decisions.  This is unlike the process for handling non-military related medical malpractice claims in State court, or for other federal medical malpractice claims against the United States such as suits against the V.A. hospitals or providers.

Also noteworthy was the limit, or “cap”, placed on what are commonly referred to as “non-economic damages” or “pain and suffering”.  The National Defense Authorization Act caps these non-economic damages at $500,000.00.  This cap is double that provided for in non-military related medical malpractice claims in the State of California, which is $250,000.00.

I can certainly expect that a lot of thought and planning went into crafting the regulations for handling of these claims, and I hope that concern for the welfare of our uniformed service members was at the heart of the decision-making.  According to the author of the article, however, the deck seems to be “stacked in favor of the house”.