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New Law Allowing Active-Duty Servicemembers to Recover for Medical Malpractice Still Not Implemented

For the last 70 years, active-duty service members injured by medical malpractice at military hospitals and clinics were completely prohibited from seeking compensation from the federal government for their injuries. That changed two years ago when the National Defense Authorization Act was amended to allow these medical malpractice claims to go forward. An administrative claims process was created for servicemembers that, while not giving them access to the courts and judicial due process, at least gave some remedy to injured servicemembers.

Since then, however, finalizing the system for service members to bring these claims has languished in the federal rulemaking process. The deadline to complete the process for how these claims would be handled by the Pentagon was in September 2020. That deadline was missed by six months when the proposed process was finally submitted in March 2021. Even now, two months later, and the process still awaits approval from the Office of Management and Budget.

More than 200 individual claims have been filed since the law changed and are now awaiting the federal government’s issuance of the final rule. The total compensation sought by these claims totals nearly $2 billion.

As the federal government nears the end of this administrative rulemaking process that has taken nearly two years to complete, the Pentagon expects to begin processing these new claims in June 2021, although this is more of an aspirational goal than a hard and fast deadline. What’s more, it remains to be seen once the finalized process is implemented whether the Defense Department will work up and resolve these claims in a reasonable and expeditious manner, or whether the new rule’s continued prohibition on access to the court system will keep these claims stuck in the federal bureaucracy and servicemembers without any real remedy for their injuries.


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