Pentagon Adjusts Malpractice Claims Rule to Benefit Service Members and Veterans
The Pentagon has revised its formula for calculating payments to U.S. service members for medical malpractice claims, a change that could result in higher payouts for affected troops and veterans.
Change in Malpractice Settlement Offsets
Currently, the Defense Department reduces medical malpractice settlements by the amount of Department of Defense (DoD) pay or Department of Veterans Affairs (VA) disability compensation a service member receives, a practice known as an offset. Under the new rule, which will be published on Friday, this offset will apply only to the estimated amount of a service member’s lost wages or future income, not to awards for other damages such as pain and suffering, disfigurement, or other harms.
Enhancing Compensation for Service Members
Pentagon officials noted that, under the previous rule, claimants with little or no economic damages could recover no money if their pay or disability compensation exceeded the total amount of potential and noneconomic damages. The new rule allows these service members to recover compensation for noneconomic damages fully.
“The amendments to the regulation will allow some service members to receive compensation for noneconomic damages that they would not have been able to receive under the current regulation,” DoD officials stated. “The amendments afford some service members additional compensation.”
Increase in Noneconomic Damages Cap
In October, the Pentagon increased the cap on noneconomic damages from $600,000 to $750,000. Economic damages, such as loss of wages due to malpractice, remain uncapped.
Impact of the New Rule on Claims
The Defense Department reported that offsets were applied to four claims decided in 2021 and 2022. In half of these cases, the economic damages exceeded the offsets, meaning the new rule would not have changed the payouts. However, in the remaining two cases, the new rule would have resulted in an additional $200,000 and $100,000, respectively.
Pentagon spokesman Maj. Gen. Pat Ryder confirmed that currently pending claims affected by the rule will be adjudicated once the rule is published.
Historical Context of Medical Malpractice Claims
Until 2021, service members could not file claims for medical malpractice or sue the Defense Department for injuries or illnesses incurred while on active duty. This restriction remains in place under the Feres Doctrine, established by a 1950 Supreme Court decision that protects the military and its officials from liability for combat-related injuries. However, family members may file claims and lawsuits in civil court under the Federal Tort Claims Act.
Legislation passed in 2019 allowed service members to file claims for injuries due to malpractice at military treatment facilities. The legislation was named after Army Master Sgt. Richard Stayskal, who was denied the claim he filed against Womack Army Medical Center at Fort Liberty (formerly Fort Bragg) after a suspicious lump was not followed up, leading to a terminal lung cancer diagnosis.
Legislative Efforts for Further Reform
Stayskal and his wife filed claims for $20 million for pain and suffering, but his subsequent appeal was also denied. His attorney, Natalie Khawam of Whistleblower Law Firm in Tampa, said Stayskal was informed that the Army had “breached the standard of care” but did not commit malpractice.
Currently, Stayskal has no recourse to appeal his ruling. Rep. Darrell Issa, R-Calif., introduced a bill last year to allow service members to take their medical malpractice claims to federal court. The bill has 27 sponsors but has not been considered by the House Judiciary Committee.
“People have the right to sue if they are victims of malpractice, except for service members. It’s time to stop treating them like second-class citizens. It’s got to stop,” Khawam said in an interview.
Frequently Asked Questions (FAQs)
What changes did the Pentagon make to the malpractice claims rule?
The new rule limits the offset to only the estimated amount of a service member’s lost wages or future income, allowing full compensation for noneconomic damages such as pain and suffering.
How does the new rule benefit service members and veterans?
It enables affected troops to recover compensation for noneconomic damages, which was previously limited if their pay or disability compensation exceeded the total amount of potential and noneconomic damages.
What is the new cap for noneconomic damages under the Pentagon’s rule?
The cap for noneconomic damages has been increased from $600,000 to $750,000.
Can service members file medical malpractice claims against the Defense Department?
Yes, following legislation passed in 2019, service members can file claims for injuries due to malpractice at military treatment facilities, but they cannot file lawsuits under the Feres Doctrine.
What is the status of the bill introduced by Rep. Darrell Issa?
The bill, which would allow service members to take medical malpractice claims to federal court, has 27 sponsors but has not yet been considered by the House Judiciary Committee.
