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Military law blocking malpractice wrongful death suits challenged

Since 1950, members of the military have not possessed the right, enjoyed by civilians in Kentucky and across the nation who receive care from doctors or hospitals, to file medical malpractice lawsuits against military doctors or hospitals. But Congress may remove part of this legal privilege blocking these lawsuits. This bill could lower the bar to the filing of lawsuits by military personnel or the filing of wrongful death lawsuits by their families.

Almost 70 years ago, the US Supreme Court ruled that active duty service members could not sue for medical malpractice. The ruling allowing this exception, generally known as the “Feres” doctrine, was based upon a law intended to prevent lawsuits against medics providing care in combat. However, this doctrine prevented lawsuits for malpractice committed outside combat situations.

In one case, physicians at the Fort Bragg’s Womack Army Medical Center ignored a tumor growing in the lung of an Iraq war veteran. He first learned about the tumor when he saw a civilian specialist six months later in June 2017. Timely notice may have prevented this veteran from becoming terminally ill with Stage 4 cancer.

In another case, a hospital supervisor at Fort Leavenworth in Kansas was seriously injured when an employee doused her with gasoline and lit her on fire. Before this assault, the supervisor had repeatedly discussed this employee with her supervisors. Nonetheless her superiors were promoted, and personnel corrections were not made.

The House of Representatives passed a narrow exception to the “Feres” doctrine as part of the annual National Defense Authorization Act. It is awaiting Senate passage.

Named after this Iraq veteran, Army Sgt. Richard Stayskal, the bill would allow service members to file lawsuits against the military for medical malpractice. But it would not address negligence situations like the assault on the hospital supervisor at Fort Leavenworth.

This bill may eliminate some of the obstacles that the military face in pursuing a medical malpractice claim. But there may be legal and factual issues that apply to a general negligence or malpractice cause of action. By filing a legal claim, patients, or their families, can pursue their rights.

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