New Pentagon Rule on Malpractice Claims Could Put More Money in Pockets of Troops, Veterans

Doctor prepares to make the initial incision at the start of a surgery, Feb. 26, 2019. (U.S. Ari Force photo by Heide Couch)
Doctor prepares to make the initial incision at the start of a surgery, Feb. 26, 2019. (U.S. Air Force photo by Heide Couch)

The Pentagon is tweaking its formula for calculating payments to U.S. service members for medical malpractice claims, a move that could put more money in the pockets of affected troops and veterans.

The Defense Department currently reduces the amount it pays for medical malpractice settlements by the amount of DoD pay or Department of Veterans Affairs disability compensation the service member receives. The practice is known as an offset.

Under the new rule to be published Friday, the offset would apply only to the estimated amount of a service member's lost wages or future income and not to the amount awarded for other damages such as pain and suffering, disfigurement or other harms.

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Pentagon officials said in the final rule that, until now, claimants who had little or no economic damages would be unable to recover any money if the pay or disability compensation they receive exceeds the total amount of potential and noneconomic damages.

Now, affected troops will be able to completely recover noneconomic damages.

"The amendments to the regulation will allow some service members to receive compensation for noneconomic damages that they would not have been able to receive under the current regulation," DoD officials wrote in the rule. "The amendments afford some service members additional compensation."

In October, the Pentagon raised the amount of money troops could receive for noneconomic damages from $600,000 to $750,000. Economic damages, such as loss of wages as a result of malpractice, remain uncapped.

According to the Defense Department, offsets were applied to just four claims that were decided in 2021 and 2022. (The DoD based its rule only on the information available early in the creation of the program.) In half of the claims, the economic damages were larger than the offsets so the new rule would not have changed the payout. But it would have affected the remaining two, with $200,000 more being allotted in one case and $100,000 more to the other.

In October, Pentagon spokesman Maj. Gen. Pat Ryder said that currently pending claims affected by the rule will be adjudicated once the rule is published.

Until 2021, service members were not allowed to file claims for medical malpractice or sue the Defense Department over injuries or illnesses that occur while on active duty. Troops still aren't allowed to file lawsuits over medical malpractice under the Feres Doctrine, set by a 1950 Supreme Court decision that protected the military and its officials from liability for combat- related injuries, although family members may file claims and lawsuits in civil court under the Federal Tort Claims Act.

Legislation passed in 2019 allowed service members to file claims for injuries over malpractice at military treatment facilities. Army Master Sgt. Richard Stayskal, for whom the legislation was named, was denied the claim he filed against Womack Army Medical Center at Fort Liberty, North Carolin -- then Fort Bragg -- which did not follow up on a suspicious lump. He was later diagnosed with terminal lung cancer.

Stayskal and his wife filed claims for $20 million for pain and suffering. His subsequent appeal also was denied. His attorney, Natalie Khawam of Whistleblower Law Firm in Tampa, said Thursday that her client was told that the Army had "breached standard of care" but did not commit malpractice.

Stayskal currently has no recourse to appeal his ruling. Rep. Darrell Issa, R-Calif., introduced a bill last year that would allow service members to take their medical malpractice claims to federal court. The bill has 27 sponsors but has not been considered by the House Judiciary Committee.

"People have the right to sue if they are victims of malpractice, except for service members. It's time to stop treating them like second-class citizens. It's got to stop," Khawam said during an interview Thursday.

Related: Soldier's Family Awarded 'Multimillion Dollar' Medical Malpractice Claim from DoD

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