Military Services Approving Roughly 3% of Malpractice Claims from Service Members

In the four years since Congress passed a law allowing troops to file claims against the Defense Department for medical malpractice, the military services have received 597 claims and approved just 20, or 3%.

Before the law was signed in late 2019, military hospitals and physicians largely were immune to claims from active-duty members under the Feres doctrine, a 1950s U.S. Supreme Court ruling that bars personnel from suing the federal government for injuries considered incidental to service.

But the fiscal 2020 National Defense Authorization Act included a provision allowing troops to file compensation claims for malpractice at U.S. military medical treatment facilities moving forward and made it retroactive from Jan. 1, 2020, by two years.

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Data provided by the services to Military.com showed the Army, the largest service, has received 258 claims and approved 12, worth $3.3 million.

The service did not provide more details about the approved claims, but roughly $2 million of the payout went to the family of an Army soldier diagnosed with Stage IV rectal cancer after his military treatment facility denied multiple requests for colonoscopies recommended by his doctor, according to the family's attorney, Natalie Khawam, founder of Whistleblower Law Firm in Tampa, Florida.

The Army has denied 81 claims and, according to the service, is considering three under appeal and 162 under investigation.

In a statement to Military.com, Army officials said the service and the Defense Health Agency "strive to provide world-class medical care to soldiers and beneficiaries."

"As part of this care, we employ a robust review and reporting system to ensure safe, high-quality care," an Army spokesman said in an email to Military.com.

The Navy has received 188 claims since Jan. 1, 2020, from sailors, Marines or surviving families of service members who filed claims before they died. The Navy has approved three, for a total of $950,000 -- one of which was a $250,000 payout.

The sea service has denied 103 claims and has two on appeal and 80 under investigation.

The Air Force has received 151 claims and has approved five, for a total award amount of $75,325 -- the lowest average for any service. It has denied 71 claims, transferred 18 to other services and has one on appeal. The remainder are under investigation.

By law, troops can file claims for harm caused by military or civilian physicians in military hospitals and clinics, including dental facilities, but they cannot make a claim for medical malpractice that occurs in a combat zone or on a ship.

The law does not apply to civilians who receive medical care at military treatment facilities; military family members, retirees and civilians treated by the Defense Department who are victims of malpractice may file for compensation under the Federal Tort Claims Act.

Under the regulations, malpractice claims from service members seeking less than $100,000 in compensation may be paid out directly by the Pentagon. The Treasury Department is responsible for reviewing and paying claims that the DoD approves above that amount.

Last October, the Defense Department raised the cap on payments for non-economic damages, such as pain and suffering, physical discomfort or loss of quality of life, from $600,000 to $750,000. And in May, the DoD announced that the amount paid for non-economic reasons would no longer be offset by Department of Veterans Affairs disability compensation.

Critics have said the process has been too slow and cumbersome to actually help service members. Troops denied claims can appeal but, according to Khawam, the reviews simply look at whether the claims process was done correctly and is not an analysis of the medical decision, nor does it allow for additional input from the service member to support their claim.

"It's outrageous -- we have clients who have died from such gross medical negligence," Khawam said during an interview with Military.com in May.

The fiscal 2024 National Defense Authorization Act included a provision that required the Defense Department to provide claimants detailed reasons for why their claim was denied.

Master Sgt. Richard Stayskal, for whom the provision in the legislation was named, was denied his claim and then denied his appeal. Stayskal was diagnosed with lung cancer that had metastasized by the time he received his diagnosis, despite multiple indicators that he had a large tumor.

Legislators introduced a bill in Congress last year that would allow service members to take their medical malpractice claims to district court once the Defense Department process is exhausted. That proposed legislation, the Healthcare Equality and Rights for our Heroes Act, has yet to be considered by the House Judiciary Committee.

Stayskal's wife Megan said the Army admitted that it had breached the standard of care but said the breach did not constitute malpractice. Now that Stayskal's appeal has been denied, he has no additional recourse. The family, Megan said in an interview with Military.com on May 9, is "moving on."

"We hope that the legislation helps other families now and in the future," she said.

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