For decades, a service member injured by military medical care had almost no path to compensation, and that has only partly changed. The reason is a long-standing legal barrier, and the recent, limited fix to it is the key thing a military attorney explains. The short version: you generally still cannot sue, but you may now be able to file an administrative claim.
The barrier: the Feres doctrine
The obstacle is the Feres doctrine, from the Supreme Court’s 1950 decision in Feres v. United States. It generally bars service members from suing the United States in tort for injuries that arise from active-duty service, and lower courts have applied it to bar military medical-malpractice lawsuits. So the courthouse door, for a lawsuit, has long been effectively closed to service members on this issue.
That barrier still stands. Understanding that a traditional malpractice lawsuit is generally not available is the necessary starting point.
The fix: the Stayskal Act and an administrative claim
The change came through legislation, not the courts. The SFC Richard Stayskal Military Medical Accountability Act, enacted in the FY2020 National Defense Authorization Act and codified at 10 U.S.C. § 2733a, created an administrative claims process, not a lawsuit, by which service members can seek compensation from the Defense Department for medical malpractice by military health-care providers.
The mechanics matter:
- It is an administrative claim filed with the Defense Department, not a suit in court.
- The Defense Secretary determines payment up to $100,000, and claims exceeding that amount are forwarded to the Treasury for payment based on a calculation of damages.
So the remedy exists, but it runs through an administrative channel with its own rules, rather than the civil-litigation system.
Where the attorney fits
A military attorney’s role is to set expectations accurately, no traditional lawsuit under Feres, but a possible Stayskal administrative claim, and to help a member understand and navigate that claims process, including the documentation a damages calculation requires. For pursuing the claim itself, members often also consult attorneys experienced with the Stayskal process.
Take a service member harmed by a misdiagnosis at a military hospital: a lawsuit is barred by the Feres doctrine, but under the Stayskal Act that member may file an administrative claim with the Defense Department instead.
The throughline is candor about a two-part reality: the Feres doctrine still blocks the lawsuit, while the Stayskal Act opened a separate administrative door. Knowing which path is actually available, and that it is a claim rather than a suit, is the most important thing a service member can take from the analysis.
Frequently Asked Questions
Can a service member sue the military for medical malpractice?
Generally no. The Feres doctrine bars such lawsuits for service-related injuries, though an administrative claims process now exists as an alternative.
What is the Stayskal Act?
A law enacted in the FY2020 NDAA that created an administrative process for service members to seek compensation from the Defense Department for military medical malpractice, rather than a lawsuit.
How much can be paid on a military medical-malpractice claim?
The Defense Secretary determines payment up to $100,000, with larger claims forwarded to the Treasury for payment based on a damages calculation.
This article is general information about military medical-malpractice claims. It is not legal advice and does not create an attorney-client relationship. The law in this area is specific and can change. Service members should consult their legal assistance office and an attorney experienced with these claims.
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