Military veterans and families recently gained a legal victory by way of the little known Gonzalez Act.
In a move that surprised many, the Supreme Court recently ruled that the federal government does not have sovereign immunity from a veteran’s lawsuit against a U.S. Navy doctor for medical battery. The unanimous ruling is based on a provision in the Gonzalez Act (10 U.S.C. §1089) which states that the Federal Tort Claims Act’s (FTCA) intentional tort exception does not apply to medical malpractice cases. Military medical malpractice attorneys are calling it a victory for military families and veterans.
The ruling comes by way of a legal battle that began with a lawsuit filed in 2005 by Steven Levin, an armed forces veteran living in Guam, against the U.S. government and Navy physician Frank Bishop. Bishop had determined that Levin needed surgery for a cataract in his right eye. Though he had twice consented in writing, Levin opted out of the procedure orally on the day the surgery was scheduled, citing concerns about Bishop’s equipment. Despite Levin’s withdrawal of consent, Bishop performed the surgery anyway. Complications led to Levin developing a corneal edema, which required a corneal transplant, diminished his eyesight and caused extreme discomfort, among other side effects.
Levin sued the U.S. Government for medical malpractice and medical battery in federal district court in Guam. The government argued that Levin’s battery claim must be dismissed due to the FTCA explicitly granting the U.S. immunity against battery lawsuits. 28 U.S.C. §2680(h). The Guam District Court dismissed Levin’s case, but he eventually made it to the U.S. Supreme Court. The Court held that Levin’s battery claim could go forward because of the little-known Gonzalez act. While the FTCA (enacted in 1946) gave the government significant legal immunity, the Gonzalez Act (enacted in 1976) chipped away at the government’s FTCA legal shield. Levin’s case is an interesting example of how a seemingly routine case can catch the attention of the country’s highest court.
Lieutenant Elle Helmer at the Vietnam War Memorial, US Marine Corps, from THE INVISIBLE WAR, a Cinedigm/Docurama Films release.
The United States military is the most powerful and advanced military organization in the world. Yet, the women serving our country are more likely to be raped by a fellow soldier than killed by enemy fire. Now, a groundbreaking investigative documentary about the epidemic of rape within the U.S. Armed Forces has brought to light an ongoing internal battle.
The Oscar- nominated film, The Invisible War, chronicles the stories of multiple servicewomen who suffered unspeakable treatment at the hands of their brothers-in-arms, not only at the time of their physical or sexual assault, but again when those assaults were reported to superiors.
More than 500,000 servicewomen have been sexually assaulted, research shows. Yet, only eight percent of sexual assault cases are prosecuted in the military, and just two percent result in convictions. Chances of obtaining justice in the civil court system are even less likely. Civil lawsuits are typically barred by a rule called the Feres Doctrine. The doctrine arose out of a highly controversial 1950 Supreme Court ruling that the United States is not liable under the Federal Tort Claims Act for service members’ injuries sustained while on active duty and not on furlough, and resulting from the negligence of others in the armed forces.
Central among those featured in The Invisible War is U.S. Naval Academy graduate and Iraq veteran Lieutenant Ariana Klay, who reported in 2010 that she was being sexually harassed by her fellow Marines and raped by her superior officer and his civilian friend. Klay v Panetta, a civil lawsuit that Klay brought against the Pentagon for failing to protect her and other service members from sexual violence, was dismissed.
U.S. District Judge Amy Berman Jackson and other federal judges base such decisions on the premise that “the constitution vests the ultimate power to decide how the military should run itself in Congress.” Yet, it was in fact the judiciary that first devised the Feres Doctrine as a way to allow the military to shirk responsibility for acts of negligence. The ruling later allowed for barring uniformed personnel from bringing discrimination claims under Title VII of the Civil Rights Act – the act under which employers can be held liable for sexual harassment and assault.
While it’s difficult to bring a claim against the military, it is not impossible, say civil rights and military medical negligence attorneys with Jacksonville’s Spohrer & Dodd. If you are a service member seeking justice for your injuries or losses, contact an attorney specializing in this unique area of the law.
Completing government forms applicable to your FTCA case can greatly affect your chances for securing fair compensation. Always consult an attorney first.
When pursuing a Federal Tort Claims Act lawsuit, time is of the essence. That’s why experienced military medical malpractice attorneys strongly recommend you allow your legal counsel to complete all applicable forms.
There are important deadlines and pre-requisites that a claimant must follow in order to bring an FTCA lawsuit. For example, before filing a complaint in Federal District Court, the FTCA statute requires claimants to first file an Administrative Tort Claim against the Veteran’s Administration. That involves completing a government document called a Standard Form 95 (SF 95).
While the forms are easily accessible and the law allows a claimant to complete them personally, it’s advised that you instead allow your attorney to fill them out. A primary reason is that once you state an amount in damages on your SF 95, it is extremely difficult to ask for a higher amount at a later date.
Unfortunately, most claimants who complete the Form 95 themselves are often not aware of the various types of compensation and reimbursement available in the court system. On your SF 95, you also must provide a thorough and detailed account of all events and injuries applicable to your case. Without legal and/or medical knowledge, there are many key details that you may miss, negatively affecting your case.
Don’t lose your ability to be reimbursed for losses caused by the government. If you believe you have a valid claim against a federal agency or facility, contact an experienced military medical malpractice attorney before completing or signing any forms.
Think you’ve got a valid FTCA claim? You’ll need to move quickly.
Many military families inexplicably still believe that they’re essentially out of luck when it comes to securing compensation for injuries caused by the negligence of a U.S. government personnel member. Not necessarily so, say military medical malpractice attorneys with Jacksonville’s Spohrer & Dodd. The Federal Tort Claims Act (FTCA) of 1946 allows injured parties to file legal claims for compensation, but limitations do exist.
One limitation is the Feres doctrine, which bars military service members from collecting damages from the U.S. government for personal injuries sustained in active duty service, and prohibits their family members from filing wrongful death or loss of consortium claims when a service member is killed or injured in the performance of his or her duties. However, that bar does not extend to family members injured or killed by government workers, including physicians practicing at military or Veterans Administration (VA) hospitals and clinics. Injured family members can file claim, as can service members filing in loco parentis on their child’s or spouse’s behalf.
It’s important to understand that an FTCA claim is not a lawsuit, though a claim can lead to a lawsuit if it is not successfully resolved in the claimant’s favor. Also, time is major factor. Federal law requires that an FTCA claim be filed within two years of the date that the claimant knew or should have known that the injury existed and was caused by a government employee’s negligence or malpractice. While some state laws may affect your claim, state statutes of limitations do not apply.
If you believe that you or your dependents were injured or killed as a result of military medical malpractice or negligence, contact an attorney that specializes in this complex legal field immediately.
In securing compensation for a military medical negligence incident, claimants have two options: the Federal Tort Claims Act (FTCA) and the Military Claims Act (MCA). While vastly similar, the two differ in several key ways.
The FTCA provides legal recourse for non-active military personnel, and military dependents and retirees injured by the action of a federal government agency or employee acting within the scope of their employment. Under the FTC a civilian can recover against the government for negligence of a government or military employee, but the outcome of the trial is determined by a federal judge – not a jury. And, laws of the state where the alleged military medical negligence occurred may affect your case. Attorneys’ fees in an FTCA case are limited to 25%.
The Military Claims Act is an administrative procedure whereby anyone injured outside of the USA by a government employee may make a claim against that agency. However, if the claim is denied, there is no recourse to the court system as in a FTCA matter.
Both remedies have strictly enforced deadlines and rules which must be adhered to. If you believe you have a valid claim, it’s best to contact an experienced military medical negligence attorney. Multiple factors must be considered in choosing the appropriate case type and approach.
Active duty personnel are not permitted to file claims for injuries suffered incident to service. But there are exceptions and a military medical malpractice attorney may be able to help.
While military medical malpractice is a very real and very serious violation for which government healthcare providers can be sued, not everyone is permitted to file claims.
Generally speaking, most anyone who is injured or whose dependent is injured as a result of medical negligence by a provider working in a U.S. government healthcare facility can sue, including military dependents, military retirees and veterans. But there is one notable exception – Active duty personnel are not permitted to sue.
The ban goes back to a 1950 Supreme Court case dubbed Feres v. United States. The court’s decision effectively bars active duty service members, under the Federal Tort Claims Act, from suing or collecting damages from the government for personal injuries “incident to service,” meaning injuries suffered in the performance of their military duties. And receiving medical treatment at a government facility is considered incident to service. The Feres doctrine also bars families of service members from filing wrongful death or loss of consortium actions when a service member is killed or injured.
Feres v. U.S. actually combined three cases pending in the federal courts that time. In one, a soldier was killed in a barracks fire caused by a defective heating plant and a failure on the part of the military to maintain an adequate fire watch. In another, a U.S. Army surgeon was alleged to have left a 30″x18″ towel marked “Medical Department U.S. Army” inside a soldier who underwent an abdominal operation. And a third also alleged that negligent and unskillful medical treatment by Army surgeons caused the death of an active duty soldier.
The Supreme Court’s reasoning for it decision was that generous compensation systems to help injured military members already existed via various Veteran Administration benefits. Over the past 60 years, multiple attempts at urging the Supreme Court to change its decision or lobbying Congress to amend the law have been made, but to no avail. Still, this doesn’t necessarily mean that an active duty military member cannot get some compensation for military medical malpractice incidents. In some cases, the federal courts do allow recovery of derivative damages by an active duty service member from an injury to a spouse or child who has filed an FTCA suit. Exceptions also have been made in few cases wherein
the court found that civilians could have been harmed in the same manner under the same circumstances in which an active duty member’s injuries occurred.
If you believe you may be entitled to compensation for an injury despite FTCA and Feres doctrine restrictions, contact an experienced military medical malpractice attorney.
Many servicemen and servicewomen are hesitant to file military medical malpractice and VA claims, fearing a negative effect on benefits for family members and on their careers.
It’s a common question among servicemen and servicewomen torn between wanting fair compensation for injuries or losses and protecting their careers and families: “Will filing a military medical malpractice claim negatively affect my career or my family’s access to government healthcare?”
The answer is a resounding “no,” say military medical malpractice attorneys with Jacksonville’s Spohrer & Dodd. And if an attempt at either is made, the law is squarely on a serviceperson’s side.
Federal law provides that military dependents have a right to government healthcare, and the Federal Tort Claims Act provides legal recourse for those injured by the action of a federal government employee or agency – including military surgeons, physicians, nurses and other medical personnel. That right to medical care for military dependent s cannot be denied. Plus, in the unlikely event that an overt or suspected retaliatory action were taken against a serviceperson for filing an FTCA claim, legal recourse is possible under both military regulations and federal law.
Military veterans receiving Veterans Affairs benefits also may sue for military medical malpractice under the FTCA without fear of losing benefits. However, certain rules and limitations are in play. For instance, before filing an FTCA claim against the VA, the injured party or the family of a deceased veteran must file a standard Form 95 with a stated amount in damages. Time limits for filing forms and claims exist as well.
Laws affecting military medical malpractice cases by families of active service personnel and veterans can be complex and time-sensitive. So, it’s critical to consult an attorney who specializes in this field before filing any forms or claims.
Mistakes can happen in any healthcare facility, whether private, public, civilian or military. Medical malpractice, occurring when a medical professional or other personnel, in the performance of their duties, commits negligence that causes serious injury or death, is just as likely to happen in a military or Veteran’s Administration hospital as in a civilian facility.
Physician Error: Examples include failing to properly diagnose an illness in time for effective treatment, negligently prescribing the wrong medication or treatment protocols, and failing to ascertain all other drugs that a patient may be taking to avoid harmful drug interactions.
Surgical Error: Surgical medical malpractice cases have involved surgeons operating on the wrong body part, taking the wrong organ, performing the wrong surgical procedure or leaving a foreign object such as a surgical tool or sponge inside the patient. Negligent mistakes can happen both during and after the surgery, including administering the wrong medication or the wrong dosage.
Birth Injuries: Failing to recognize and quickly act upon signs of fetal distress can cause serious injuries with lifelong consequences including brain damage or cerebral palsy. In the worst cases, mistakes can cause the death of the infant or mother.
Cancer Misdiagnosis: Medical malpractice by way of misdiagnoses is particularly worrisome when a patient has cancer. Laboratory errors and physicians’ lack of experience or attention can lead to improper diagnosis, causing delays in treatment and allowing cancerous cells spread. The longer the delay, the lower the patient’s chance of recovery.
Don’t think that legal recourse in military medical practice cases is impossible just because those at fault are employed by the government. You are just as entitled to fair compensation as any civilian. But military medical malpractice cases are complex and subject to an entirely different set of rules. Make sure the attorney you choose is highly experienced in this specialty practice.
Medical negligence cases are tough in any situation. But when it comes to medical negligence perpetrated by military caregivers, plaintiffs face a whole different set of issues than in the civilian world.
Military medical negligence claims are directed at the federal government and governed under the Federal Tort Claims Act, or FTCA. It’s a complex act that provides legal recourse for those injured by the action of a federal government employee or agency. Under the FTCA, non-active military personnel and military dependents and retirees can sue for damages suffered as a result of medical negligence.
The FTCA was passed following a 1945 aircraft accident in which a B-25 Mitchell bomber in thick fog crashed into the north side of New York’s Empire State Building. The crash caused fires in two buildings, severely injured an elevator operator and killed fourteen people including the pilot, two passengers and 11 people in the affected buildings. Eight months later, the U.S. government offered money to families of the victims. While some accepted, others initiated a lawsuit that resulted in the passing of the Federal Tort Claims Act of 1946, which had been pending in Congress for more than two decades. For the first time ever, American citizens were afforded the right to sue the federal government, and the statute was made retroactive to 1945, allowing victims of the plane crash to seek recovery.
While similar in many ways to civilian medical negligence law, the FTCA has limitations. For instance, plaintiffs cannot be awarded punitive damages and the FTCA exempts claims based upon the performance or failure to perform discretionary functions or duties, as well as a number intentional torts. Plus, while federal courts have jurisdiction over military medical negligence claims, they also apply the law of the state where the negligence occurred. So, both federal and state law may be used to impose limitations on liability in such cases. Trials are decided by Federal judges-not juries.
Effectively presenting a claim for military medical negligence, lawyers in Jacksonville say, requires a highly specialized knowledge and skill set. If you are an eligible party who has suffered such an injury, make sure you hire legal counsel with a proven track record in trying FTCA cases.
In securing compensation for a military medical negligence incident, claimants have two options: the Federal Tort Claims Act (FTCA) and the Military Claims Act (MCA). While vastly similar, the two differ in several key ways.
Mistakes can happen in any healthcare facility, whether private, public, civilian or military. Medical malpractice, occurring when a medical professional or other personnel, in the performance of their duties, commits negligence that causes serious injury or death, is just as likely to happen in a military or Veteran’s Administration hospital as in a civilian facility.