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12-09-2011 | Article

Key to improving military malpractice outcomes lies in access to compensation

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MedWire News: US researchers suggest that the way to improve the US military's approach to compensation for medical malpractice while on active duty is to improve the levels, types, and accessibility of disability benefits, rather than to change the current legal process.

Under the current system, service personnel injured during active duty, unlike civilians, cannot sue their healthcare providers for medical injuries resulting from malpractice, explain Sandeep Mangalmurti (University of Chicago Medical Center, Illinois) and colleagues.

Instead, since military service members receive medical care as a benefit incident to their service, this, plus the disability benefit that is available to permanently and severely disabled members, is their entitlement.

However, a review of the rationale of this rule shows that although the "Feres doctrine" is "controversial in that it introduces a seemingly indefensible inequity between civilians and active-duty service members... eliminating the rule would replace one injustice with another," writes the research team in the New England Journal of Medicine.

Mangalmurti and co-authors note that several characteristics set military disability benefits apart from compensation available through civil courts. For example, although medical expenses and lost income are covered by the scheme, other components of tort damages, such as noneconomic ("pain and suffering", quality of life) losses, are not.

The US Supreme Court has stated that the reasoning behind the upholding of the Feres doctrine is that allowing military personnel to enter into tort claims would interject state law in to a "distinctly federal" relationship between the armed forces and its members, it may promote "double recovery" in light of military healthcare and disability benefits, and it could jeopardize military discipline.

However, because the recovery available from the military in compensation "does not approach" that available in the tort system, this argument is weak, say Mangalmurti et al.

Furthermore, few medical malpractice claims would implicate strategic military decisions in a way that may threaten the smooth-functioning of operations, they add.

Repealing the law would not solve the matter, however, remark the authors. They believe that the overhead costs involved in the tort system, coupled with the necessities of hiring an attorney, of proving that medical negligence caused the injury, and the difficulties of actually succeeding in reclaiming damages, is unlikely to result in improved compensation for most service members.

Instead, Mangalmurti and colleagues suggest that reform should involve "improving the military's current, administrative approach" and that "strengthening the military benefits scheme would better assist victims of malpractice and facilitate quality improvement within the military health system."

They accept that some concerns were addressed in the 2008 Wounded Warrior Act that promised to address some of the systematic delays in processing disability benefit requests, however, they stress that the Act does not ensure that compensation captures the "full impact" of disability.

"A unified process of interagency claims should be implemented," concludes the team, adding this would "enable service members to enjoy many of the benefits that the tort system provides, without its burdens."

By Sarah Guy