One of the benefits of working in the military environment is that the military physician does not have to be concerned with medical malpractice insurance, and is at no immediate personal risk for liability judgments in malpractice cases. Yet judgments against the physician are not without consequences.

This article addresses who can and cannot sue the government for medical malpractice, how such suits are conducted, and what a judgment means for the military physician.

The government ultimately decides who can and cannot file suit against it, as it has sovereign immunity and can, in theory, bar all suits. In the past, a person literally had to get an act of Congress to obtain permission to file suit against the United States government for damages in a tort claim.

This became quite burdensome and, after 30 years of debate, the Congress passed the Federal Torts Claims Act (FTCA) of 1946 that established a means for redress by those who were injured by the government. Overnight, this eliminated thousands of requests for private legislative relief arising out of government torts. Still, this remedy was not available to everyone.

It is commonly believed that military physicians cannot be sued. While it is true that active duty soldiers and sailors cannot sue the government, their dependents and retirees may. This distinction stems from the U.S. Supreme Court case Feres v. United States 340 U.S. 135 (1950), in which the court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty, and not on furlough, and resulting from the negligence of others in the armed forces.

The opinion is an extension of the English common-law concept of sovereign immunity. The Court reasoned that active duty service members have access to remedies such as disability pay, VA compensation, and medical care for as long as the disability exists. Family members and retirees do not enjoy these same benefits, so they need another means of redress to compensate them for their injuries. The adequacy of remedies for active duty members has been questioned, but challenges to the Feres doctrine have been unsuccessful to date.

The FTCA is different from other governmental claims acts. First, there is no cap on damages; so, many multimillion-dollar judgments have been obtained. Second, the FTCA provides both administrative and judicial remedies. What that means is that a claimant must first file a claim with the appropriate agency, for example the Department of the Army. That agency then has 6 months to complete its investigation and either offer to settle or deny the claim.