Pentagon Inches Toward Handling $2 Billion in Malpractice Claims

The Defense Department’s general counsel has instructed U.S. military services to be ready by June to process medical malpractice claims that have languished for more than a year.

Congress in December 2019 eased the seven-decade ban on troops or their families seeking compensation for injury or death at the hand of military hospitals. Since then, troops have filed $2.16 billion in medical malpractice claims under a law (Public Law 116-92) that required a system of compensation for victims. The total represents 227 cases that have yet to be adjudicated.

The Pentagon on March 12 submitted a federal interim final rule to the White House’s Office of Management and Budget laying out how it would handle claims—a delay of almost six months from September, when it had initially promised to do so. OMB has 90 days to finalize the rule but can also act faster.

Photographer: Brendan Smialowski/AFP via Getty Images

A White House motorcade arrives at Walter Reed National Military Medical Center in October 2020, in Bethesda, Md.

Pentagon General Counsel

Rep. Jackie Speier(D-Calif.), the chair of the House Armed Services’ personnel subcommittee and the driving engine behind the claims legislation, on Thursday spoke with the Pentagon’s general counsel, Beth George, according to an aide to the lawmaker who asked not to be named in order to speak freely about the meeting.

Speier has been pressing the Pentagon for months over the issue of the claims, and sent a letter urging updates on progress. According to the aide, she found out on Thursday that the rule was finished at the end of last year, but the Pentagon’s counsel hasn’t gotten an explanation on why the rule never made its way to the Office of Management and Budget for interagency review during the Trump administration.

Pentagon Slows $900 Million Malpractice Claims as Congress Fumes

The general counsel has now told the military services to be ready to handle the claims as soon as the rule is issued, and has asked OMB to expedite it as much as possible, the aide said. Speier also plans to urge OMB to move quickly, the aide added.

Claims by Military Service

The Army, the military’s largest branch, reported $845 million in malpractice claims. The Air Force reported $530 million, while the Navy and Marine Corps reported a combined total of $781 million, according to data obtained by Bloomberg Government.

Troops have been barred from suing the military in federal civilian court for malpractice under what is called the Feres Doctrine, a Supreme Court legal precedent set in 1950. The 2019 law, passed as part of the fiscal 2020 defense authorization bill, still doesn’t allow them to sue.

But Congress, over the Pentagon’s objections, did set up a system of compensation with the military that requires service members to file an administrative claim with the branches. The Pentagon maintained that the military’s generous system of benefits was adequate.

Pentagon Has $2 Billion in Medical Malpractice Claims

Payouts

The law says the department will pay compensation of up to $100,000 per case, and refer higher amounts to the U.S. Treasury for payment. The Congressional Budget Office estimated the cost of the legislation at $660 million over a decade.

Lawmakers were inspired by cases such as Richard Stayskal, an Army Green Beret soldier who had his lung cancer repeatedly misdiagnosed, and Rebekah Daniel, a Navy lieutenant who bled to death during childbirth in 2014 at a base in Washington state.

“It is certainly a little insulting that it is taking so long,” Stayskal said in a January interview. “I am trying to make sure my family is taken care of and everything is set in the right place, and the kids get a chance to get a car when they are older.”

With assistance from Travis J. Tritten

To contact the reporter on this story: Roxana Tiron in Washington at rtiron@bgov.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Heather Rothman at hrothman@bgov.com