In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury under any circumstances while the plaintiff was in military service (active or otherwise). This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.
The debate over whether the Feres Doctrine should be abandoned has raged ever since. In fact, last May, two Justices of the Supreme Court suggested it was time to get rid of it. See here. Soon after that, the New York Times published an Op-Ed piece urging Congress to eliminate the doctrine. See here.
Maybe in response to these events, later in the year Congress debated inserting a provision into the annual defense authorization bill to offer payouts to victims of military medical malpractice. The provision did not alter the Feres doctrine, but it creates a system to provide limited recovery to some victims of military medical malpractice.
Last week, the Senate voted, 86-8, to pass the National Defense Authorization Act including $400 Million for the Defense Department to investigate and pay out military medical malpractice claims internally, bypassing the Feres Doctrine.
This sounds great, but the details of the provision severely limit its possible benefits. Most importantly, claims would be limited to under $100,000, and legal fees are capped at 20%. Unfortunately for the victims, these limits will make it difficult for them to find lawyers to on the representation. Medical malpractice cases are typically very expensive to litigate and being able to recover only $20,000 will make the cases not viable financially.
According to the bill, the Secretary of Defense can create regulations that allow them to pay more, but those regulations haven’t been written.
The New York Personal Injury Law Blog has a good short comment on the bill here.