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.

If the claimant declines a settlement offer, is denied relief, or more than 6 months have elapsed since filing, the claim can be filed as a lawsuit in federal district court. The case is then heard by a judge. There is no right to a jury trial in FTCA cases, as normally provided at common law and embodied in the Seventh Amendment. Again, the government makes its own rules when deciding who can sue it and under what circumstances.

These types of cases have been particularly attractive to some plaintiff attorneys, many of whom specialize in suing military and Veterans Administration hospitals. The reason is that the only thing they need to do is to fill out a simple form (the SF-95), in some states file an affidavit saying they found an expert who will testify on their behalf (although no findings need be filed), and to ask for a specific dollar amount.

Now, the judgment can never exceed this amount. Therefore—not wanting to limit possible damages—most claim requests far exceed actual damages. The attorney then gets a free copy of all medical records, and a whole process is thrown into action. The government gathers its experts and reports, does a thorough investigation, and then makes damages recommendations or denies the claim.

If a claim is settled, the attorney takes one-third of the award, with very little work or time invested. Unlike suits against private hospitals, which can cost upwards of $100,000 out of pocket to the plaintiff attorney, there is almost nothing to lose here. One can see the incentive to file these suits.

If there is some sort of damage or injury, it is generally the policy of the government to try to make things right. Therefore, there is a tendency to settle unless there is clearly no negligence.

For cases involving the military, once there is a settlement or judgment, a list of the health care providers is forwarded to a central committee that decides independently if there was negligence on the part of each individual health care provider. If negligence is found by the committee and there is a settlement or judgment for any amount, then the name of that physician will be entered into the National Practitioner Data Bank. This could have implications for credentialing and future job prospects in the private sector.

For this reason, if you are named in a lawsuit and there is a monetary award given, it behooves you to respond to inquiries by your command and to defend yourself. While there may not be any short-term consequences, entry into the Data Bank could have effects reaching far into the future.

The process of entry into the Data Bank is much different for the military physicians. Look for a future article on the National Practitioner Data Bank for information on how such entries are made and what effects they have for other health care providers.

Ms. Stankus is a medical student at the University of Washington and is a former medical malpractice defense attorney.