Last time, we began looking at birth injury case recently appealed up to the U.S. Supreme Court, and the Feres doctrine which is at stake in the case. As we noted, the Feres doctrine holds that active-duty military members are not able to sue the government for tort relief, as in cases of medical malpractice. What is at stake in the Supreme Court appeal, though, is whether tort relief is available to cover damages for a child who sustains a birth injury.
What is really at stake in the case is whether active military members are able to receive compensation when a government doctor acts negligently in delivering care. For non-active veterans, the Feres doctrine is inapplicable, and litigation under the Federal Tort Claims Act is a possibility.
Under the Federal Tort Claims Act, (FTCA) a vet who has been harmed by medical malpractice has the ability to sue for economic and non-economic damages, including lost wages, medical costs, emotional distress, as well as pain and suffering. Punitive damages, however, are not available.
The ability to sue under the FTCA is an exception to the general rule of sovereign immunity. They key with these claims is that the physician or medical health provider must have been acting within the scope of employment at the time of the injury. This issue, not surprisingly, is frequently litigated. Further, plaintiffs in these cases only allowed to receive damages if they would normally be entitled to damages from a private company employee under the laws of the state where the injury occurred.
FTCA medical negligence cases are not easy to pursue, and it is important to work with an experienced attorney when doing so to ensure one has the guidance and advocacy necessary to put together a strong claim.
Sources:
Military Authority, “Can You Sue the VA For Malpractice?,” Accessed June 1, 2015.
Department of Veterans Affairs, “Claims Under the Federal Tort Claims Act,” Accessed June 1, 2015.
