U.S. seeks new limits on troops’ legal rights

Discussion in 'Off Topic' started by bruno, Feb 1, 2012.

  1. bruno

    bruno Retired Staff Member

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    http://www.armytimes.com/news/2012/...n-troops-legal-rights-feres-doctrine-013112w/

    Just in case you really were confused and thought that the Government cares about you. The Feres Doctrine may be long standing but it doesn't mean that it is right, ethical or even logical. It's one thing to protect caregivers making emergency decisions under the stress and time compression of combat medical care, but the doctrine has protected the Government for 60 years from assuming responsibility for negligence in almost any circumstance if committed on an active duty service member. Now they are asserting that same privilege for dependants as well:

     
  2. sprog

    sprog Member

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    Not that it's potentially all that much with regard to compensation (depends on individual circumstances), but a Veteran who was injured in service due to a medical error could file for service connection for the residuals of that error (which manifest as a chronic disability). That could range from a noncompensable award all the way to a 100% rating depending on how severe the impairment. It is with VA, so the person would need to have left active duty.

    Unfortunately, that is not available to dependents who are injured in such a manner.

    Not really related, but I just wanted to point out that VA does not get immunity from suit for medical negligence. The Federal Tort Claims Act is available, or if the Veteran would prefer, he can file a claim with his regional office under 38 USC 1151. In the latter instance, if the claim is a good one, any disability resultant from negligence in a VA procedure will essentially be treated as if it were service-connected. Thus, compensation benefits would be paid based on the level of disability (similar to service-connected conditions).
     
    Last edited: Feb 1, 2012
  3. bruno

    bruno Retired Staff Member

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    I don't think that what the VA does is really germane to the issue- most of the times when I have heard of the Feres Doctine being imposed it almost always involves a currently serving active duty service member. What makes this appalling is that now they are asserting the same right over your covered dependants. It's a travesty and while I normally despise ambulance chasing liability lawyers , there clearly are times when real negligence is involved, and a soldier or his family should not be prohibited from seeking recourse. This is bureaucrats covering their butts with the law.
     
  4. sprog

    sprog Member

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    It's absolutely germane to how you can be compensated for an injury sustained on active duty. That's the whole purpose of VA's compensation system. I was, however, just including the bit on medical negligence by VA providers for the sake of information.

    Hypothetically, let's say an Air Force doctor performs a surgery which renders the active duty member a parapalegic. It is because of negligence on the part of the surgeon. The individual will most likely be separated from the military at that point.

    That individual would file for service connection, and given the extent of disability, would probably be looking at a very high disability rating from VA (the higher the rating, the greater the monthly benefit). That, and he would be entitled to free medical care for the condition (and if not unemployable, he'd be eligible for vocational rehabilitation and/or education benefits). It also must be noted that the person didn't have medical expenses with the service department to begin with. Also to keep in mind, VA monetary benefits are tax-free.

    This isn't for dependents, as I've noted. If, unfortunately, the Veteran dies of the condition, the surviving spouse could file a claim for service connection for the cause of the Veteran's death (which is a monthly benefit available until the spouse dies or re-marries).

    For the servicemember (Veteran upon discharge), I actually think this is more generous than what a lot of people can hope for in the civilian legal system. Due to the pressures of so-called "tort reformers" in many states, legislatures have put statutory caps on punitive and compensatory damages that fall well below what most people think of when they think of a medical malpractice case. Not true in all jurisdictions, but it's there in many.

    If you get a chance, check out HBO's Hot Coffee. It's an excellent little film on the broader issue of "tort reform" ( a phrase, much like "judicial activism," that makes me cringe).
     
    Last edited: Feb 1, 2012
  5. pennak

    pennak Member

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    Bruno: I litigated in the Supreme Court the most recent case on the FERES doctrine (United States v. Stanley). The point is that you can't have service members being a party in suits the United States -- it has the potential for undermining military discipline and civilian court's are generally in a poor position to second-guess military decisions and personnel actions. This is a gloss the Court has placed on the substantive cause of action allowed under the Federal Tort Claims Act. Traditionally, while the service member can't be a party, and famly member's cannot sue for injuries that are derivative of the service member's injury, the family members can sue in their own names for torts committed directly against them that are not derivative, including medical malpractice. A former service member can likewise sue under the FTCA for a tort suffered after he left the service.
     

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