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February 11, 2019
Military Medical Malpractice and the Feres Doctrine
The Department of Defense (DOD) employs physicians and
who is no longer fit for duty may also be eligible for a
other medical personnel to administer health care services
disability rating and accompanying compensation through
to servicemembers. Occasionally, however, patient safety
the Integrated Disability Evaluation System. Injured
events occur and providers commit medical malpractice by
servicemembers may be entitled to other benefits as well;
rendering health care in a negligent fashion, resulting in the
for instance, servicemembers may continue to receive free
servicemember’s injury or death. This In Focus discusses
health care while they remain in the military. The
the standards and procedures governing the disposition of
Department of Veterans Affairs may also continue to
medical malpractice claims that servicemembers and non-
provide free or low-cost health care to servicemembers after
servicemembers assert against the United States, as well as
they are discharged from the military, as well as other
pertinent considerations for Congress.
benefits.
Malpractice Claims: Servicemembers
Malpractice Claims:
Outside the military context, a victim of medical
Non-servicemembers
malpractice may potentially obtain recourse by pursuing
Depending on the circumstances, victims of military
litigation against the negligent provider and/or his
medical malpractice who are non-servicemembers (such as
employer. A servicemember injured as a result of
military retirees, spouses, and children of servicemembers)
malpractice committed by a military health care provider,
may still be able to pursue litigation against the United
however, may encounter significant obstacles if he attempts
States under the FTCA. However, the FTCA’s statute of
to sue the United States. Although the United States has
limitations and administrative exhaustion requirement
rendered itself amenable to certain types of lawsuits by
generally require the claimant to file a claim with the
enacting the Federal Tort Claims Act (FTCA), the Supreme
agency within two years of the date on which the claimant
Court has interpreted the FTCA to immunize the federal
knows of the factual basis for his injury and its cause.
government from liability “for injuries to servicemen where
Figure 1 illustrates the administrative process for settling a
the injuries arise out of or are in the course of activity
medical malpractice claim against the United States.
incident to service.” According to the Court, “suits brought
by service members against the Government for injuries
Figure 1. Adjudicating Malpractice Claims for Non-
incurred incident to service” would undesirably embroil
servicemembers Through the Administrative Process
“the judiciary in sensitive military affairs at the expense of
military discipline and effectiveness.” This exception to tort
liability is known as the Feres doctrine, after the 1950
Supreme Court decision that first articulated the rule. Many
lower federal courts have concluded that Feres generally
prohibits military servicemembers from asserting
malpractice claims against the United States based on the
negligent actions of health care providers employed by the
military. (Different legal standards might apply, however,
to independent contractors who the United States hires to
provide health care services to servicemembers.)
Alternatives to Tort Liability
As a result of Feres, servicemembers harmed by the
malpractice of a military health care provider must
ordinarily pursue avenues other than FTCA litigation
against the federal government to obtain monetary
compensation or other forms of relief. One potential avenue
is Servicemembers’ Group Life Insurance (SGLI), which
“automatically insure[s] . . . any member of a uniformed
service on active duty” up to $400,000 “against death”
unless the servicemember “elect[s] in writing not to be
insured.” Federal law also entitles any “member of an
armed force . . . who dies while on active duty” to a
Source: Department of Defense.
$100,000 “death gratuity paid to or for the
Note: Graphic adapted by CRS. MTF = Military Treatment Facility.
[servicemember’s] survivor.” An injured servicemember
https://crsreports.congress.gov
Military Medical Malpractice and the Feres Doctrine
Under 28 U.S.C. § 2672, federal agencies may settle certain
identified numerous inconsistencies in policies and
claims for “personal injury or death caused by the negligent
processes. GAO also found that the “fragmented process”
or wrongful act or omission of any employee of the agency
for tracking led to missing or incomplete reports and
while acting within the scope of his office or employment”
duplicative reporting. DOD plans to initiate program
and issue compensatory damages. Although there are no
standardization as part of congressionally directed Military
statutory caps on compensatory damages issued by or on
Health System reform that transfers the administration of
behalf of DOD, the Attorney General or his designee must
military hospitals and clinics to the Defense Health Agency.
approve in writing settlements in excess of $300,000.
Congress could engage in further oversight of DOD’s
implementation of these efforts or direct additional study on
Considerations for Congress
the relationship between adverse medical events, patient
safety initiatives, and malpractice trends.
Addressing the Feres Doctrine
Over the past several decades, Congress has held multiple
Defensive Medicine Practices. DOD providers may
hearings to assess whether to modify the Feres doctrine to
practice defensive medicine, or the use of unnecessary tests,
allow servicemembers to pursue medical malpractice
procedures, or medications to avoid potential malpractice.
litigation against the United States. Opponents of Feres
Recent civilian health care delivery studies have associated
maintain that the military benefits discussed above are not
the use of defensive medicine practices with increased
sufficient to fully compensate victims of military medical
health care costs, reduced quality of care, and reduced
malpractice for their injuries. Supporters, by contrast, argue
patient satisfaction. Congress could direct further study on
that allowing servicemembers to sue the government for the
the prevalence of defensive medicine practices in DOD and
medical decisions of military employees would adversely
direct measures to maintain health care quality, maintain
affect military order, discipline, and effectiveness.
data transparency, and curb health care costs.
Because the Feres doctrine is predicated upon a judicial
Relevant Statutes and Regulations
interpretation of the FTCA, Congress possesses the ability
to override Feres by amending the FTCA. To that end,
10 U.S.C. §§ 1475-1491—Benefits for Deceased Personnel
Members of Congress have periodically introduced bills
10 U.S.C. §§ 1071-1110b—Military Medical Care
that would abrogate the Feres doctrine with respect to
28 U.S.C. §§ 1346(b)(1), 2401(b), 2671-80—Federal Tort
medical malpractice claims. To date, however, none have
Claims Act
passed.
38 U.S.C. §§ 1965-1980a—Servicemembers’ Group Life
Legislative proposals to modify the Feres doctrine
Insurance
implicate a variety of legal, economic, and policy issues.
28 C.F.R. § 14—Administrative Claims Under the Federal Tort
First and foremost, broadening the circumstances in which
Claims Act
servicemembers may validly sue the federal government
32 C.F.R. § 536.80—Payment of costs, settlements, and
would likely increase the amount of money the United
judgments related to certain medical malpractice claims
States must pay each year to defend against litigation and
32 C.F.R. § 536.84—Scope for claims under the Federal Tort
satisfy adverse monetary judgments. Leaving Feres
Claims Act
unchanged, however, could result in innocent
servicemembers bearing the financial burden of the
government’s negligence. As an alternative to increasing
CRS Products
the government’s exposure to suit by narrowing its
CRS In Focus IF10530, Defense Primer: Military Health System, by
immunity under Feres, Congress could offer additional
Bryce H. P. Mendez
non-judicial remedies to servicemembers injured by
military medical malpractice, such as by expanding
servicemembers’ entitlement to military or veterans
Other Resources
benefits.
Feres v. United States, 340 U.S. 135 (1950)
Addressing Medical Quality Management
United States v. Johnson, 481 U.S. 681 (1987)
Congress may also consider addressing factors that may
Government Accountability Office, Defense Health Agency
contribute to medical malpractice incidents or the quality of
Should Improve Tracking of Serious Adverse Medical Events and
care in DOD health care facilities.
Monitoring of Required Follow-up, GAO-18-378, April 2018
U.S. Congress, House Committee on the Judiciary, Carmelo
Standardization of DOD’s Patient Safety Program.
Rodriguez Military Medical Accountability Act of 2009: Report to
Currently, DOD uses sentinel event (i.e., adverse medical
Accompany H.R. 1478, 111th Cong., 2d sess., 2009, H.Rept. 111-
events that are likely to cause patient injury or death) data
to “inform system
466
-wide patient safety improvement
initiatives.” However, each DOD entity that administers
military treatment facilities (i.e., Defense Health Agency,
Army, Navy, and Air Force) has different procedures for
Bryce H. P. Mendez, Analyst in Defense Health Care
reporting and tracking sentinel events. A 2018 Government
Accountability Office (GAO) review of DOD’s patient
Policy
safety program and adverse medical event reporting
Kevin M. Lewis, Legislative Attorney
https://crsreports.congress.gov
Military Medical Malpractice and the Feres Doctrine
IF11102
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
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