Military Medical Malpractice and the Feres Doctrine

Military Medical Malpractice and the Feres Doctrine

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Updated April 25, 2023
Military Medical Malpractice and the Feres Doctrine
The Department of Defense (DOD) employs physicians and
caused by the medical malpractice of a [DOD] health care
other medical personnel to administer health care to
provider.” The regulations implementing this compensation
servicemembers, military retirees, and their family
scheme are promulgated under 32 C.F.R. Part 45. This
members. If these providers commit medical malpractice,
compensation scheme does not, however, authorize
they may cause injury or death. This In Focus discusses the
servicemember lawsuits against the government to address
standards and procedures governing medical malpractice
medical malpractice by military health care providers.
claims that servicemembers and non-servicemembers may
Injured servicemembers or their families may potentially
assert against the United States, as well as pertinent
obtain compensation through other avenues as well. For
considerations for Congress.
instance, the Servicemembers’ Group Life Insurance
Servicemembers’ Malpractice Claims
(SGLI), administered by the Department of Veterans
Outside the military context, a victim of medical
Affairs (VA), “automatically insure[s] . . . any member of a
malpractice may potentially obtain recourse by suing the
uniformed service on active duty” up to $500,000 “against
negligent provider or the provider’s employer. However, a
death” unless the servicemember “elect[s] in writing not to
servicemember injured by a military health care provider’s
be insured.” Federal law also entitles any “member of an
malpractice may encounter significant obstacles if he or she
armed force . . . who dies while on active duty” to a
attempts to sue the United States. Although the Federal Tort
$100,000 “death gratuity paid to or for the
Claims Act (FTCA) renders the United States amenable to
[servicemember’s] survivor.” An injured servicemember
certain tort lawsuits, the U.S. Supreme Court has
who is no longer fit for duty may also be eligible for a
interpreted the FTCA to preserve the government’s
disability rating and accompanying compensation through
immunity “for injuries to servicemen where the injuries
the Integrated Disability Evaluation System. Injured
arise out of or are in the course of activity incident to
servicemembers may be entitled to other benefits as well.
service.” According to the Court, “suits brought by service
For instance, servicemembers may continue to receive free
members against the Government for injuries incurred
health care while they remain in the military. VA may also
incident to service” would undesirably embroil “the
continue to provide free or low-cost health care to former
judiciary in sensitive military affairs at the expense of
servicemembers after they are discharged from the military,
military discipline and effectiveness.” The Supreme Court
as well as other benefits.
also reasoned that the government already implements a
Non-Servicemembers’ Malpractice
uniform system for compensating and providing services to
Claims
servicemembers harmed in the course of their duties. In the
Court’s view, Congress would have adjusted the
Depending on the circumstances, non-servicemember
victims of military medical malpractice (such as military
aforementioned benefits if it had intended that the FTCA
“permit recovery for injuries incident to military service.”
retirees, spouses, and children of servicemembers) may sue

the United States under the FTCA notwithstanding Feres.
This exception to liability is known as the Feres doctrine,
However, the FTCA’s statute of limitations and
after the 1950 Supreme Court decision that first articulated
administrative exhaustion requirement generally require the
the rule. Many lower federal courts have concluded that
claimant to first file a claim with the responsible agency
Feres generally prohibits military servicemembers from
within two years of the date on which the claimant knows
suing the United States for medical malpractice committed
of the factual basis for his or her injury and its cause.
by military health care providers. (However, the Feres
Figure 1 illustrates the administrative process for settling a
doctrine does not necessarily apply to medical malpractice
medical malpractice claim against the United States.
lawsuits against 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
In December 2019, Congress enacted Section 731 of the
the negligent or wrongful act or omission of any employee
National Defense Authorization Act for FY2020, (P.L. 116-
of the agency while acting within the scope of his office or
92), which directed the creation of an administrative
employment” and pay compensatory damages. Although
procedure by which the Defense Secretary may pay
there are no statutory caps on compensatory damages paid
compensation for alleged medical malpractice committed
by or on behalf of DOD, the Attorney General or his or her
by military health care providers. Subject to various
designee must approve in writing settlements over
prerequisites and limitations, 10 U.S.C. § 2733a authorizes
the Secretary to “allow, settle, and pay a claim against the
$200,000.
United States for personal injury or death incident to the
service of a member of the uniformed services that was
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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.
If enrolled, certain non-servicemembers may also be
Relevant Statutes, Regulations, and Policies
eligible for compensation through term life insurance
benefits upon death. For example, the VA-administered
10 U.S.C. §§ 1071–1110b—Military Medical Care
Family Servicemembers’ Group Life Insurance (FSGLI)
10 U.S.C. §§ 1475–1491—Benefits for Deceased Personnel
offers up to $100,000 of coverage for military spouses and
10 U.S.C. § 2733a—Medical Malpractice Claims by Members of
up to $10,000 for military dependents. Military retirees
the Uniformed Services
enrolled in the Veterans Group Life Insurance (VGLI) may
be eligible for up to $400,000 of coverage.
28 U.S.C. §§ 1346(b)(1), 2401(b), 2671–80—Federal Tort
Claims Act
Considerations for Congress
28 C.F.R. Part 14—Administrative Claims Under the Federal
Congress may consider addressing other factors that could
Tort Claims Act
contribute to medical malpractice incidents or affect the
quality of care in the Military Health System (MHS).
32 C.F.R. Part 45—Medical Malpractice Claims by Members of
the Uniformed Services
DOD’s Clinical Quality Management
32 C.F.R. § 536.80—Payment of costs, settlements, and
The Defense Health Agency (DHA) administers all health
judgments related to certain medical malpractice claims
care services delivered throughout the MHS. DHA uses an
integrated framework of processes, called clinical quality
38 U.S.C. §§ 1965–1980a—Servicemembers’ Group Life
management (CQM), to “objectively define, measure,
Insurance
assure, and improve the quality and safety of care received
DHA Procedures Manual 6025.13, Clinical Quality Management
by beneficiaries.” In a March 2022 House Armed Services
in the Military Health System
Committee hearing, DHA reported “signs of continuous
improvement in quality and safety measures,” and that
CRS Products
DOD has “clear policies and procedures in place when
CRS In Focus IF10530, Defense Primer: Military Health System, by
patient safety incidents occur.” In August 2022, a
Bryce H. P. Mendez
Government Accountability Office (GAO) performance
CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal
audit report found that DHA “did not always adhere” to its
Overview, by Michael D. Contino and Andreas Kuersten
CQM procedures because of unclear policies and
procedures. Congress could conduct further oversight
CRS Legal Sidebar LSB10305, The Feres Doctrine: Congress, the
activities (e.g., hearings, congressionally directed reports,
Courts, and Military Servicemember Lawsuits Against the United
site visits) of DHA’s CQM program, future program and
States, by Andreas Kuersten
policy revisions, and military treatment facility adherence

to prescribed CQM procedures.
Other Resources

Defensive Medicine Practices
Feres v. United States, 340 U.S. 135 (1950)

DOD providers could use “tests and treatments that may be
United States v. Johnson, 481 U.S. 681 (1987)

unnecessary” in order to avoid potential malpractice.
GAO, Military Health Care: Improved Procedures and Monitoring
Numerous medical professional societies refer to this
Needed to Ensure Provider Qualifications and Competence, GAO-
practice as defensive medicine. Recent civilian health care
22-104668, August 2022
delivery studies have associated the use of defensive

medicine practices with increased health care costs, reduced

quality of care, and reduced patient satisfaction. Congress
could direct further study on the prevalence of defensive
Bryce H. P. Mendez, Analyst in Defense Health Care
medicine practices in DOD and direct measures to improve
Policy
health care quality, data transparency, and curb costs.
Andreas Kuersten, Legislative Attorney
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Military Medical Malpractice and the Feres Doctrine

IF11102

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