U.S. MILITARY MEMBERS MAY FILE CLAIMS FOR MEDICAL MALPRACTICE
MILITARY MEDICAL MALPRACTICE LAWYERS
In 2004, after serving in support of Operation Iraqi Freedom, I was honorably discharged from the U.S. Army. When I returned to the States, prior to my discharge, I experienced unusual symptoms and abnormal blood work. However, I was not diagnosed with an illness or recommended for follow up medical care. In 2011, I was diagnosed with Systemic Lupus Erythematosus. It took me over seven years to get a diagnosis and treatment. By this time, lupus had already started to attack my kidneys. Arguably, if I received treatment years earlier while in the U.S. Army, maybe my condition would not have progressed. During those times, service members who experienced medical malpractice caused by a Department of Defense (DOD) health care provider could not file claims against DOD. It was not allowed by law. However, with the passage of the National Defense Authorization Act, members of the uniformed services or an authorized representative on behalf of the member, with certain exceptions, may file administrative claims against DOD. The claims are processed under the Military Claims Act. Please note there is no judicial remedy under the Military Claims Act. This means military members may file a claim, but cannot sue DOD under this Act.
WHO MAY FILE A MILITARY MEDICAL MALPRACTICE CLAIM
A member of a uniformed service (includes a cadet or midshipman from the military academies)
An authorized representative on behalf of a member who is deceased or unable to file the claim due to incapacitation.
In certain instances, this may include a claim filed by or on behalf of a reserve component member (the personal injury or death must have occurred while the member was in a Federal duty status).
MILITARY MEDICAL MALPRACTICE MUST BE INCIDENT TO SERVICE
The personal injury or death must be incident to service. The injury or death is incident to service if the medical care provided is based on the member’s status (i.e., active duty, reserve component in Federal Duty status). For example, if an active-duty Airman received negligent medical care from a DOD health care provider at his duty station. This would be considered incident to service.
WHEN TO FILE MILITARY MEDICAL MALPRACTICE CLAIM
A claim must be received by DOD (in writing) within 2 years after the date the claim accrues.
A claim accrues as of (1) the date the act or omission by a DOD health care provider occurred (which is the basis of the medical malpractice claim) or (2) the date on which the claimant knew or should have known (with the exercise of reasonable diligence), of the injury and that malpractice was its possible cause. Regarding the latter date, for example, if a military member did not discover until 3 years after abdominal surgery was performed (by a DOD health care provider) that the surgeon left a sponge in her abdomen; she may still file a claim because she did not reasonably discover the malpractice until 3 years later.
HOW TO PROVE YOUR MILITARY MEDICAL MALPRACTICE CLAIM
The claimant must prove by a preponderance of the evidence (i.e., more than a 50% chance) that one or more DOD health care providers in a covered Military Treatment Facility, acting within the scope of employment, had a professional duty to the patient involved and by act or omission breached that duty which proximately caused the injury or death.
The professional duty is a duty to exercise the same degree of skill, care, and knowledge ordinarily expected of providers in the same field or specialty in a comparable clinical setting. The standard of care is determined based on generally recognized national standards. Please note the standard of care in the military context may be impacted by the particular setting and the availability of resources in that setting.
An expert opinion may be used to show the health care provider breached the standard of care (the professional duty owed to the patient). For example, to show that a military health care provider breached the standard of care in diagnosing and treating breast cancer, the claimant may provide a written opinion by an experienced oncologist. The oncologist will review the claimant's medical records and give their opinion as to how the military health care provider deviated from the national standard of care (generally recognized oncology national standards).
WHY YOU NEED A MILITARY MEDICAL MALPRACTICE LAWYER
NO UP FRONT FEES! YOU ONLY PAY IF YOUR CASE IS SUCCESSFUL!
Hiring an experienced attorney may increase your chances of success. There are no upfront costs. You pay only if your case is successful. The Burning Bush Lawyers, LLP. will advance the costs for investigation, case development, and expert opinions. Navigating the military claims process can be difficult and that why we are here to assist you with that process.