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Malpractice in the Military

Military WomanA significant number of California residents either serve in the U.S. military or know someone who does. As such, there are a lot of Californians who deal not only with civilian hospitals, but military hospitals as well. However, there are significant issues with many military hospitals, and the rules on what manner of compensation you can receive if you are the victim of malpractice in a military hospital are very different from the standard.

Federal Law Applies

There are three major laws that apply to any incidence of malpractice in the military health care system. Because the military is an arm of the United States government, the Federal Tort Claims Act covers any alleged malpractice in a military or VA hospital in the country. If your injury occurs overseas or on a base outside the country, the Military Claims Act governs.

In order to file a claim against a military hospital or doctor, you must first file an administrative claim. There is a six-month period in which the claim will be investigated. Afterwards, if it is denied, you may then file with the appropriate U.S. District Court within six months, or (if applicable) under the Military Claims Act within two years.

The Feres Doctrine and Vicarious Liability

The critical difference between suing a military doctor and suing a civilian doctor is that you cannot sue a military doctor individually if you are on active duty. A family member of yours may do so, if they are the one against whom malpractice has been committed, but if you are the victim and you are on active duty, you must bring suit against the government itself.

This is done for two reasons. First, you are directed to sue the government because the doctor is (at least technically) a government employee. In civilian hospitals, a very similar principle is applied when a patient sues the hospital, in addition to or instead of the doctor; this is referred to as respondeat superior or vicarious liability.

Second, being unable to sue the doctor him or herself has its basis in law, not just general suggestion. The Feres Doctrine stems from the case of Feres v. United States, which held that the executor for a soldier who had died as a result of a barracks fire could not bring suit against the federal government for negligence. The court extrapolated that not only was such a cause of action covered under federal immunity, but that the chain of command might be unjustly disrupted if senior officers were able to be held liable for alleged negligence every time a mission went wrong or operation failed to pan out in the predicted manner. People who join the armed forces, in theory, assume the risk of physical harm up to a certain point, and the events in Feres were ruled to fall within the limits of that amount of risk.

Seek Professional Help

Malpractice cases are some of the most complex and ambiguous in law, whether military or civilian. Having an experienced legal professional on your side can tip the balance in your favor. The skilled San Jose medical malpractice attorneys at the firm of Corsiglia, McMahon & Allard, L.L.P. are well versed in medical malpractice issues and are happy to help you get the compensation you deserve. Contact our office today to discuss your options. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Mateo, Alameda, Monterey and San Benito.

Client Reviews
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My experience with Attorney Brad Corsiglia during my recent medical malpractice case was nothing short of amazing given the very stressful circumstances. I was fortunate to find Brad highly recommended from a mutual contact and from the very beginning of the process, Brad was truly engaged and knowledgeable in understanding my case and providing input on what avenues were available to me. Michelle M.