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 suffered while the plaintiff is 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. The debate over whether the Feres Doctrine should be abandoned has raged ever since. For all the stories I have published over the years on the Feres Doctrine, go here.)
There have been many attempts to eliminate or at least to change the effect of the Feres doctrine over the years, and Justice Clarence Thomas recently expressed his support for change. But all attempts had failed, Until now.
Thus I am happy to report that the Defense Department has published a new rule governing how uniformed service members or their representatives can file claims against the military for medical malpractice. This new rule states that (subject to some exceptions)
"A substantiated claim under $100,000 will be paid directly to the member or his/her estate by the [Department of Defense (DoD)]. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues."
However, it must be noted that the rule does not allow for judicial review of adjudicated claims, and that, therefore, their settlement will be "final and conclusive."
So, it while it is a good thing that plaintiffs will have the chance to recover for their injuries, the remedy provided is still short of the recognition of a possible judicially resolved tort claim.