Malpractice Lawsuits for Active Military Could Be Restored by Legislation

Legislation has been introduced that would overturn a 1950 Supreme Court decision which bars military malpractice lawsuits by active duty servicemembers, allowing them to sue the federal government for damages caused by negligent medical care.

On Wednesday, Senator Charles Schumer announced that he would introduce the Carmelo Rodriguez Military Medical Accountability Act in the Senate. The bill, originally drafted by Rep. Maurice Hinchey of New York, is currently moving through the House and would allow active duty military personnel to pursue medical malpractice lawsuits against the government for negligence resulting in injury or death.

A House Judiciary Committee vote on the bill was scheduled for Wednesday, but was postponed. Committee officials say a new date for the bill’s mark up has not been scheduled yet, but is expected to occur after the Fourth of July weekend. A spokesperson from Hinchey’s office say they expect the bill to pass with no significant problems.

The bill seeks to reverse a 1950 U.S. Supreme Court decision in Feres v. United States, where the high court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to active duty armed forces personnel sustained as the result of negligence. It prevents families from filing wrongful death lawsuits when military personnel are killed as well.

The Feres Doctrine, as it has come to be known, came as a result of a lawsuit that charged the government with negligence after a soldier died in a fire while assigned to a barracks known to have a defective heating plant. The decision has been used as a basis to bar all negligence claims against the government by active military, including medical malpractice lawsuits.

The new legislation is named after Sgt. Carmel Rodriguez, who died of skin cancer in 2007 after military medical personnel diagnosed him as having melanoma, but did not inform him or refer him to a specialist.

At a hearing on the proposed legislation in March, Hinchey said the Feres Doctrine had “left families with no recourse for addressing the loss of a loved one due to obvious medical malpractice by military doctors and other medical personnel.” Hinchey said the bill would only apply to military personnel who were injured by medical negligence, and would prohibit claims of negligence that occurred during “combatant activities” during time of armed conflict.

Critics of the bill say that excluding combat personnel is unfair, and that Congress should first explore solutions that would permit the military to compensate personnel for negligence through existing channels, without opening up the government to malpractice lawsuits by active military.