March 5, 2017


The 32nd Battalion – Help Is On It’s Way

I recently viewed a disturbing evening news program that reported the significant increase in suicides experienced by soldiers returning from combat duty in Iraq. One of the soldiers featured in the report had experienced symptoms of PTSD while on active duty which continued after his discharge. His attempts to receive treatment at the VA were unsuccessful. Eventually, his disease overwhelmed him and he committed suicide leaving behind a wife and three minor children. The report noted that after a great deal of effort his family was awarded VA benefits.

A question raised by this report, but not answered, is whether this veteran’s family was entitled to file a medical malpractice wrongful death claim against the government? The answer is, “It depends.”

First, it depends on whether denying appropriate mental health care to a patient with diagnosed PTSD is in fact negligent. Second, it depends on whether the family can establish that the failure to provide care was a direct and proximate cause of the veteran’s suicide. Finally, it depends on the state where the negligent care, or lack thereof, occurred.

Let me address the questions posed in reverse order. Under the Federal Tort Claims Act, the claimant must apply the law of the state where the negligent conduct occurred. Some states do not allow damage recovery for suicide. They consider suicide to be a form of contributory negligence or self-inflicted wound.

If the state law includes suicide in its wrongful death statute, then the family will have to prove by expert testimony that the veteran’s death was directly caused by the negligent provision, or negligent failure to provide, adequate mental health care which would have avoided this outcome. This is often difficult to do but will turn on the facts of each case.

Finally, the family will have to prove that the mental health care provided breached the standard of care. This is always a challenge in mental health cases. Unlike medical cases, where the treatment regimen is often quite clear once a diagnosis is made, psychiatric cases are far more complicated. Proving that the doctors treating the patient were negligent is never easy because treating such patients is never easy. As a consequence, claimants are well advised to consult with an experienced attorney before filing such claims under the FTCA. In the appropriate circumstance such cases can result in substantial recoveries for the family which suffers such a devastating loss.

What effect , if any, will the recent election have on the Federal Tort Claims Act? No one can say for certain; however, there is an outside chance the FTCA could be amended to allow active duty members to sue for medical malpractice. Let me explain. The only thing that prevents active duty members from suing the government for injuries sustained incident to military service is the Feres Doctrine which was enunciated by the Supreme Court in the Case of Feres v. United States. Because the FTCA is a statute created by Congress, it can be amended by Congress. If that were to occur, the Supreme Court would be bound by the amendment.

Twenty years ago Congressman Barney Frank of Massachusetts introduced a bill in Congress to amend the FTCA to allow active duty service members to sue for medical malpractice injuries occurring in “fixed military medical facilities.” Hearings were held and the House of Representatives passed the bill overwhelmingly. Unfortunately, the bill died in the Senate after intense lobbying against it by both the Justice Department and the Defense Department. Given the outcome of the recent elections, that result might change if the bill were to again come up for consideration.

When this bill was last considered, the Senate was controlled by the Republicans. The bill never got out of the Senate Armed Services Committee because Senator Strom Thurman, the Republican committee chairman, refused to bring it up for consideration. Even if it had been reported out of committee, it is unlikely it would have been passed by the Republican controlled Senate. It certainly would have been vetoed by President George H. W Bush. With a Democratic majority in both the House and Senate and a Democratic President, things might be different this time around. In addition, today there seems to be more empathy for soldiers injured as a result of medical malpractice. All these factors could result in the first change to the FTCA in over forty years.

If Congress were to allow soldiers to sue for medical malpractice, there certainly would be limitations applied to that right. First, soldiers would not be allowed to file claims for care received outside a “fixed medical facility” nor would claims be allowed for soldiers in a deployed status. There would also be a requirement that any military of VA disability benefits received as a result of a medical malpractice injury be offset against any FTCA recovery. These are all reasonable limitations that were included in the original legislation and would surely be included in any new bill. On balance, however, amending to the FTCA to allow soldiers to file such claims would be a fair extension of the law, and one which would be welcomed by all service members and their families.