Military Medical Malpractice and the Feres Doctrine

The Department of Defense (DOD) employs physicians and other medical personnel to administer health care to servicemembers, military retirees, and their family members. If these providers commit medical malpractice, they may cause injury or death. This In Focus discusses the standards and procedures governing medical malpractice claims that servicemembers and non-servicemembers may assert against the United States, as well as pertinent considerations for Congress.

Servicemembers' Malpractice Claims

Outside the military context, a victim of medical malpractice may potentially obtain recourse by suing the negligent provider or the provider's employer. However, a servicemember injured by a military health care provider's malpractice may encounter significant obstacles if he or she attempts to sue the United States. Although the Federal Tort Claims Act (FTCA) renders the United States amenable to certain tort lawsuits, the U.S. Supreme Court has interpreted the FTCA to preserve the government's immunity "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." According to the Court, "suits brought by service members against the Government for injuries incurred incident to service" would undesirably embroil "the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." The Supreme Court also reasoned that the government already implements a uniform system for compensating and providing services to servicemembers harmed in the course of their duties. In the Court's view, Congress would have adjusted the aforementioned benefits if it had intended that the FTCA "permit recovery for injuries incident to military service." This exception to 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 suing the United States for medical malpractice committed by military health care providers. (However, the Feres doctrine does not necessarily apply to medical malpractice lawsuits against independent contractors hired to provide health care to servicemembers.)

In December 2019, Congress enacted Section 731 of the National Defense Authorization Act for FY2020, (P.L. 116-92), which directed the creation of an administrative procedure by which the Defense Secretary may pay compensation for alleged medical malpractice committed by military health care providers. Subject to various prerequisites and limitations, 10 U.S.C. § 2733a authorizes the Secretary to "allow, settle, and pay a claim against the United States for personal injury or death incident to the service of a member of the uniformed services that was caused by the medical malpractice of a [DOD] health care provider." The regulations implementing this compensation scheme are promulgated under 32 C.F.R. Part 45. This compensation scheme does not, however, authorize servicemember lawsuits against the government to address medical malpractice by military health care providers.

Injured servicemembers or their families may potentially obtain compensation through other avenues as well. For instance, the Servicemembers' Group Life Insurance (SGLI), administered by the Department of Veterans Affairs (VA), "automatically insure[s] . . . any member of a uniformed service on active duty" up to $500,000 "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 $100,000 "death gratuity paid to or for the [servicemember's] survivor." An injured servicemember who is no longer fit for duty may also be eligible for a disability rating and accompanying compensation through the Integrated Disability Evaluation System. Injured servicemembers may be entitled to other benefits as well. For instance, servicemembers may continue to receive free health care while they remain in the military. VA may also continue to provide free or low-cost health care to former servicemembers after they are discharged from the military, as well as other benefits.

Non-Servicemembers' Malpractice Claims

Depending on the circumstances, non-servicemember victims of military medical malpractice (such as military retirees, spouses, and children of servicemembers) may sue the United States under the FTCA notwithstanding Feres. However, the FTCA's statute of limitations and administrative exhaustion requirement generally require the claimant to first file a claim with the responsible agency within two years of the date on which the claimant knows of the factual basis for his or her injury and its cause. Figure 1 illustrates the administrative process for settling a medical malpractice claim against the United States.

Under 28 U.S.C. § 2672, federal agencies have authority to settle certain claims for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment" and pay compensatory damages. Although there are no statutory caps on compensatory damages paid by or on behalf of DOD, the Attorney General or his or her designee must approve in writing settlements over $200,000.

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 eligible for compensation through term life insurance benefits upon death. For example, the VA-administered Family Servicemembers' Group Life Insurance (FSGLI) offers up to $100,000 of coverage for military spouses and up to $10,000 for military dependents. Military retirees enrolled in the Veterans Group Life Insurance (VGLI) may be eligible for up to $400,000 of coverage.

Considerations for Congress

Congress may consider addressing other factors that could contribute to medical malpractice incidents or affect the quality of care in the Military Health System (MHS).

DOD's Clinical Quality Management

The Defense Health Agency (DHA) administers all health care services delivered throughout the MHS. DHA uses an integrated framework of processes, called clinical quality management (CQM), to "objectively define, measure, assure, and improve the quality and safety of care received by beneficiaries." In a March 2022 House Armed Services Committee hearing, DHA reported "signs of continuous improvement in quality and safety measures," and that DOD has "clear policies and procedures in place when patient safety incidents occur." In August 2022, a Government Accountability Office (GAO) performance audit report found that DHA "did not always adhere" to its CQM procedures because of unclear policies and procedures. Congress could conduct further oversight activities (e.g., hearings, congressionally directed reports, site visits) of DHA's CQM program, future program and policy revisions, and military treatment facility adherence to prescribed CQM procedures.

Defensive Medicine Practices

DOD providers could use "tests and treatments that may be unnecessary" in order to avoid potential malpractice. Numerous medical professional societies refer to this practice as defensive medicine. Recent civilian health care 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 medicine practices in DOD and direct measures to improve health care quality, data transparency, and curb costs.