Medical Malpractice: Virginia Active Duty Military Personnel Can’t Sue Government

Virginia active duty military personnel injured by medical negligence at a military hospital (for example, Portsmouth Naval Hospital) cannot sue the government. The law that prevents this type of lawsuit, no matter how negligent or even willfully reckless the conduct by the government in providing medical care, came from United States Supreme Court case Feres v. United States. The reasoning behind the Feres doctrine is that it protects the government from costly, time-consuming trials that could also damage military discipline.

Medical negligence committed by the government against a military dependent, however, can be pursued. Under the Federal Tort Claims Act (FTCA), a dependent of an active duty military member who is injured or dies as a result of medical negligence by military medical personnel can pursue a claim in negligence. The attorneys at Pierce & Thornton have successfully handled medical negligence cases against the Federal government and have experience in Federal court, which is where an FTCA case must be filed.

The steps for pursuing such a claim differ from an ordinary state court medical negligence case. A Standard Form 95 must be filed with the applicable branch of the government (for example, the Department of the Navy) within two years of the date of the negligence. Even if the victim of the medical negligence is a minor, this claim form must be filed within two years of the negligence.

Our attorneys will determine whether the government is the proper party to name in the potential lawsuit or whether the government was using a private contractor to render healthcare. Several matters need to be investigated to pursue a Federal tort claims case, so you should not delay in contacting us if you wish to investigate the case. For examples of Federal (and other) cases we have handled, visit Pierce & Thornton’s website.