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Legal Review: 2020 National Defense Authorization Act Gives Service Members Hope for Medical Malpractice Relief

The first National Defense Authorization Act was passed in 1961, beginning a series of federal laws detailing the expenditures of the United States Department of Defense and the annual budget. The purposes of the National Defense Authorization Act include establishing funding levels, determining the agencies responsible for defense, and setting the policies for which money will be allocated and spent.

President Donald Trump signed the 2020 National Defense Authorization Act into law on December 20, 2019 after the United States Senate passed it by a vote of 86 to 8. One of the many provisions of the 2020 National Defense Authorization Act allocates 400 million dollars to the Department of Defense to investigate and pay out military medical malpractice claims. Prior to this Act, service members were barred from holding the government accountable for negligent military medical care by what is known as the Feres Doctrine, named after the 1950’s United States Supreme Court case involving injured service member Feres.

In Feres v. United States, 340 U.S. 135 (1950), the United States Supreme Court held that service members injured during or arising out of service were ineligible to seek relief under the Federal Tort Claims Act. The Federal Tort Claims Act provides exceptions to sovereign immunity regarding the United States, allowing the government to be liable for the tortious acts of its employees in certain circumstances. The Feres Doctrine prevented service members from bringing lawsuits against the government for medical malpractice.

Although the 2020 National Defense Authorization Act is a huge victory for service members wanting to pursue medical malpractice relief, the Act does not eliminate the bar put in place by the Feres Doctrine. Instead, the Act creates a process by which service members could seek review of their medical malpractice claims by the Secretary of Defense.

The malpractice claims eligible for review include non-combat injuries and deaths. A claim can be made by the injured service members or by their family members. A two-year limit is placed on all claims after 2020, however, those claims have a three-year lookback period, dating back to 2017. Any injuries or deaths prior to 2017 are ineligible. The Act authorizes monetary relief up to $100,000 by the Department of Defense judges and upwards of $100,000 by the Department of Treasury.

The limitations placed on filing claims and recovering damage are not the only limits to the Act’s medical malpractice provision. Eligible claims are for non-combat injuries only, are processed by administrative adjudication, as opposed to being filed and heard in federal court, and there is no recourse in federal court for denied claims.

As attorney Darryl B. Kogan of Kogan & DiSalvo, P.A. explains, “Even with the medical malpractice provision’s limitations, the 2020 National Defense Authorization Act puts a large dent in the Feres Doctrine and opens a roadway for relief that many believe is long overdue.” Sgt. 1st Class Richard Stayskal visited Washington, D.C. to witness the Senate’s final vote on whether to pass the 2020 National Defense Authorization Act, a process he first initiated. Back in 2017, Stayskal’s lung cancer was misdiagnosed by doctors at Womack Army Medical Center as pneumonia. Bringing his story to the public eye just over a year ago, Stayskal lives to see federal law changed for people in situations similar to his own. The sergeant’s call for action came to fruition at the close of the vote

Early critics of the National Defense Authorization Act included Senator Lindsay Graham who ultimately voted in favor of the Act’s passage. Early on, Graham expressed hesitation with opening the door to medical malpractice relief for service members. Initially sponsored by United States House Representative Jackie Speier, who is chair of the House Armed Services subcommittee on personnel, Stayskal applauded the bipartisan efforts. Bringing his story to the forefront, Stayskal also credits national attention to a 12-month series of investigations broadcasted by Fox 46 into the lives of service members in similar situations.

With the enactment of the 2020 National Defense Authorization Act, Stayskal and the nation witnessed bipartisan efforts go far; ultimately, relief that has been barred since the 1950’s can now be pursued by non-combat injured service members and their families dealing with medical malpractice claims.

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