Pentagon Raises Cap on Service Members' Medical Malpractice Claims

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A surgeon and assistant work together during a procedure
A surgeon and assistant work together during a procedure as part of a training exercise on Joint Base Lewis-McChord, Wash. (U.S. Army photo by Staff Sgt. David Chapman)

Service members now can file claims related to alleged malpractice at military medical facilities for up to $750,000, after the Pentagon proposed an increase from the previous limit of $600,000.

Pentagon Press Secretary Brig. Gen. Pat Ryder announced in an email to media outlets that the proposed change applies "to any pending claims" and was published in the Federal Register on Friday.

"Effective immediately, the Department has increased the cap on non-economic damages for active-duty Service member medical malpractice claims from $600,000 to $750,000," Ryder wrote Friday. "These actions are in direct response to input from our Service Members, Members of Congress, and other key stakeholders."

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Ryder also announced that the Defense Department is pushing to update the regulation to change how it offsets other payments to service members under malpractice regulations.

"Currently, total potential damages are reduced by offsetting most of the compensation otherwise provided or expected to be provided by DoD or the Department of Veterans Affairs (VA) for the same harm that is the subject of the medical malpractice claim," the change reads in the Federal Register. "The amendments would apply offsets to economic damages only."

Troops generally cannot sue the DoD for injuries suffered while they are on active duty under what's known as the Feres Doctrine. But in 2019, Congress passed a law that created a workaround for that rule for medical malpractice, allowing service members for the first time to file claims for injuries or death caused by providers at military health care facilities.

Lawmakers and advocates, though, have alleged the Pentagon has not followed the spirit of the law, citing what they describe as an opaque process for deciding claims and a low approval rate.

Advocates who have been fighting for reforms to the military's medical malpractice policies say Friday's increase is much needed but short of many necessary changes that still should happen.

Manuel Vega, a Marine Corps veteran and founder of Save Our Servicemembers, a nonprofit that advocates for military malpractice reforms, told Military.com it's a drop in the bucket in terms of the larger financial obligation the DoD should have to troops.

"It's important but it's inadequate," Vega said. "It's a very, very small concession when compared to medical malpractice cases that are being paid out in the civilian world."

Vega pointed out that the 2020 National Defense Authorization Act authorized $400 million over 10 years for the Pentagon to pay military medical malpractice claims made after January 2017. But, in reality, very few have been approved.

As of October 2022, just 2% of claims were being approved, officials told Military.com at that time. Even Master Sgt. Richard Stayskal, for whom the law that allowed the claims is named, had his claim denied earlier this year. Stayskal filed a $20 million claim after military doctors missed a large tumor in his lung, delaying a diagnosis.

Lawmakers have also pushed for the Defense Department to raise the cap on noneconomic damages. In 2021, when the Pentagon proposed a $500,000 cap, then-Rep. Jackie Speier, D-Calif., one of the main proponents of reforming the Feres Doctrine, advocated for the cap to be at least $800,000.

The public has 60 days to comment on Friday's change and then the Pentagon "will review and address comments and then publish the final rule," according to Ryder.

"All current pending claims that would be affected by the proposed changes will be adjudicated once the final rule is effective," he added.

Vega’s son, Patrick, died suddenly during Marine Corps training in San Diego in 2018, and he still doesn't have answers about how it happened. He said reforms to the military medical system are crucial for the future of the armed services.

"This is how we're going to attract more young men and women to join our armed services," Vega said. "I mean, as much as I love my country, you guys got to fix it first before I encourage anybody to join."

-- Thomas Novelly can be reached at thomas.novelly@military.com. Follow him on Twitter @TomNovelly.

-- Rebecca Kheel can be reached at rebecca.kheel@military.com. Follow her on X @reporterkheel.

Related: Troops Can Finally File Medical Malpractice Claims Against the Military. Here's How

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