Updated June 16, 2021
Military Medical Malpractice and the Feres Doctrine
The Department of Defense (DOD) employs physicians and
Injured servicemembers or their families may potentially
other medical personnel to administer health care to
obtain compensation through other avenues as well. For
servicemembers, military retirees, and their family
instance, the Servicemembers’ Group Life Insurance
members. If these providers commit medical malpractice,
(SGLI), administered by the Department of Veterans
they may cause injury or death. This In Focus discusses the
Affairs (VA), “automatically insure[s] . . . any member of a
standards and procedures governing medical malpractice
uniformed service on active duty” up to $400,000 “against
claims that servicemembers and non-servicemembers may
death” unless the servicemember “elect[s] in writing not to
assert against the United States, as well as pertinent
be insured.” Federal law also entitles any “member of an
considerations for Congress.
armed force . . . who dies while on active duty” to a
$100,000 “death gratuity paid to or for the
Servicemembers’ Malpractice Claims
[servicemember’s] survivor.” An injured servicemember
Outside the military context, a victim of medical
who is no longer fit for duty may also be eligible for a
malpractice may potentially obtain recourse by suing the
disability rating and accompanying compensation through
negligent provider or the provider’s employer. However, a
the Integrated Disability Evaluation System. Injured
servicemember injured by a military health care provider’s
servicemembers may be entitled to other benefits as well.
malpractice may encounter significant obstacles if he or she
For instance, servicemembers may continue to receive free
attempts to sue the United States. Although the Federal Tort
health care while they remain in the military. VA may also
Claims Act (FTCA) renders the United States amenable to
continue to provide free or low-cost health care to former
certain tort lawsuits, the U.S. Supreme Court has
servicemembers after they are discharged from the military,
interpreted the FTCA to preserve the government’s
as well as other benefits.
immunity “for injuries to servicemen where the injuries
arise out of or are in the course of activity incident to
Non-Servicemembers’ Malpractice
service.” According to the Court, “suits brought by service
Claims
members against the Government for injuries incurred
Depending on the circumstances, non-servicemember
incident to service” would undesirably embroil “the
victims of military medical malpractice (such as military
judiciary in sensitive military affairs at the expense of
retirees, spouses, and children of servicemembers) may sue
military discipline and effectiveness.” This exception to
the United States under the FTCA notwithstanding Feres.
liability is known as the Feres doctrine, after the 1950
However, the FTCA’s statute of limitations and
Supreme Court decision that first articulated the rule. Many
administrative exhaustion requirement generally require the
lower federal courts have concluded that Feres generally
claimant to first file a claim with the responsible agency
prohibits military servicemembers from suing the United
within two years of the date on which the claimant knows
States for medical malpractice committed by military health
of the factual basis for his or her injury and its cause. Figure
care providers. (However, the Feres doctrine does not
1 illustrates the administrative process for settling a medical
necessarily apply to medical malpractice lawsuits against
malpractice claim against the United States.
independent contractors hired to provide health care to
servicemembers.)
Under 28 U.S.C. § 2672, federal agencies have authority to
settle certain claims for “personal injury or death caused by
During the 116th Congress, the House passed a version of
the negligent or wrongful act or omission of any employee
the Fiscal Year (FY) 2020 National Defense Authorization
of the agency while acting within the scope of his office or
Act (NDAA; H.R. 2500) that proposed to modify the Feres
employment” and pay compensatory damages. Although
doctrine to let servicemembers sue the United States for
there are no statutory caps on compensatory damages paid
military health care providers’ malpractice. The enacted
by or on behalf of DOD, the Attorney General or his or her
version of the FY2020 NDAA (P.L. 116-92), however, does
designee must approve in writing settlements over
not authorize such lawsuits. Instead, the FY2020 NDAA
$200,000.
creates an administrative procedure by which such
servicemembers may request compensation from the
If enrolled, certain non-servicemembers may also be
Secretary of Defense. Subject to various prerequisites and
eligible for compensation through term life insurance
limitations, 10 U.S.C. § 2733a authorizes the Secretary to
benefits upon death. For example, the VA-administered
“allow, settle, and pay a claim against the United States for
Family Servicemembers’ Group Life Insurance (FSGLI)
personal injury or death incident to the service of a member
offers up to $100,000 of coverage for military spouses and
of the uniformed services that was caused by the medical
up to $10,000 for military dependents. Military retirees
malpractice of a [DOD] health care provider.”
enrolled in the Veterans Group Life Insurance (VGLI) may
be eligible for up to $400,000 of coverage.
https://crsreports.congress.gov
Military Medical Malpractice and the Feres Doctrine
Figure 1. Adjudicating Malpractice Claims for Non-Servicemembers Through the Administrative Process
Source: CRS graphic adapted from DOD, Overview of DOD Medical Malpractice and the Role of the Department of Legal Medicine, June 2010, p. 3,
https://www.qmo.amedd.army.mil/riskmgt/2010Conf/MedicalMalpractice.pdf.
Considerations for Congress
Relevant Statutes, Regulations, and Policies
Congress may consider addressing other factors that could
contribute to medical malpractice incidents or affect the
10 U.S.C. §§ 1071-1110b—Military Medical Care
quality of care in DOD health care facilities.
10 U.S.C. §§ 1475-1491—Benefits for Deceased Personnel
10 U.S.C. § 2733a—Medical Malpractice Claims by Members of
Standardization of DOD’s Patient Safety Program
the Uniformed Services
Currently, DOD uses “sentinel event” data (i.e., adverse
medical events that are likely to cause patient injury or
28 U.S.C. §§ 1346(b)(1), 2401(b), 2671-80—Federal Tort
death) to “inform system-wide patient safety improvement
Claims Act
initiatives.” However, each DOD entity that administers
38 U.S.C. §§ 1965-1980a—Servicemembers’ Group Life
military treatment facilities (i.e., Defense Health Agency,
Insurance
Army, Navy, and Air Force) has different procedures for
28 C.F.R. §§ 14.1-14.11—Administrative Claims Under the
reporting and tracking sentinel events. A 2018 Government
Federal Tort Claims Act
Accountability Office (GAO) review of DOD’s patient
32 C.F.R. § 536.80—Payment of costs, settlements, and
safety program and adverse medical event reporting
judgments related to certain medical malpractice claims
identified numerous inconsistencies in policies and
processes. GAO also found that the “fragmented process”
DOD Manual 6025.13, Medical Quality Assurance (MQA) and
for tracking led to missing or incomplete reports and
Clinical Quality Management in the Military Health System (MHS),
duplicative reporting. DOD plans to initiate program
updated July 23, 2020
standardization as part of congressionally directed Military
Health System reform that transfers the administration of
CRS Products
military hospitals and clinics to the Defense Health Agency.
CRS In Focus IF10530, Defense Primer: Military Health System, by
Congress could conduct further oversight activities (e.g.,
Bryce H. P. Mendez
hearings, congressionally directed reports, site visits) of
DOD’s
CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal
implementation of these efforts or direct additional
Overview, by Kevin M. Lewis
study on the relationship between adverse medical events,
patient safety initiatives, and malpractice trends.
CRS Legal Sidebar LSB10305, The Feres Doctrine: Congress, the
Courts, and Military Servicemember Lawsuits Against the United
Defensive Medicine Practices
States, by Kevin M. Lewis
DOD providers could use “tests and treatments that may be
unnecessary” in order to avoid potential malpractice.
Other Resources
Numerous medical professional societies refer to this
Feres v. United States, 340 U.S. 135 (1950)
practice as defensive medicine. Recent civilian health care
United States v. Johnson, 481 U.S. 681 (1987)
delivery studies have associated the use of defensive
medicine practices with increased health care costs, reduced
Government Accountability Office, Defense Health Agency
quality of care, and reduced patient satisfaction. Congress
Should Improve Tracking of Serious Adverse Medical Events and
could direct further study on the prevalence of defensive
Monitoring of Required Follow-up, GAO-18-378, April 2018
medicine practices in DOD and direct measures to improve
health care quality, maintain data transparency, and curb
health care costs.
Bryce H. P. Mendez, Analyst in Defense Health Care
Policy
Kevin M. Lewis, Legislative Attorney
https://crsreports.congress.gov
Military Medical Malpractice and the Feres Doctrine
IF11102
Disclaimer
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https://crsreports.congress.gov | IF11102 · VERSION 5 · UPDATED