The NDAA or the National Defense Authorization Act for Fiscal Year 2020 has passed through the Senate and the House as of 12/17/19 and has been signed into a law by President Trump on 12/20/19. This bill will allow military personnel who were victims of medical malpractice to sue the government for financial compensation. Previously, due to the Feres Doctrine, military personnel were not able to sue the government for any war-related injuries or on-duty accidents (including medical malpractice).
The Feres Doctrine is a 1950s Supreme Court decision which is commonly cited by lower courts to block troops from seeking damages for war-related injuries or on-duty accidents. The changes made to the NDAA effective 2020 “does not change or repeal the Feres doctrine, it authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death … that was the result of medical malpractice caused by a Department of Defense health care provider.” Says a lawmaker that worked on the new changes of the NDAA.
Most of the claims will be limited to under $100,000 but there are exceptions that the Secretary of Defense could authorize in some circumstances. All claims would have to be filed within 2 years from the time of the incident, and payout would not cover the cost of attorney’s fees. In addition, the claims would be addressed through an existing Defense Department adjudication agency that handles Military Claims Act lawsuits and not in the regular federal courts.
As an example, the supreme court ruled against a service member when a civilian surgeon conducted a follow up surgery and found a 30-inch-by-18-inch towel inside the man labeled “Medical Department U.S. Army” that was left from the previous operation conducted at an Army hospital. The changes to the 2020 NDAA will allow military personnel who have been harmed by the negligent act of physicians, to bring a claim against the government for compensation.