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Let America’s service members file medical malpractice claims | Editorial

The new defense budget finally enables them to file medical malpractice claims.
Left tot Right: US Army Reserves Captain Jessica Purcell, 37, St. Petersburg, spends time with her 10-month-old son Jameson, and her attorney Natalie Khawam on Jan. 21, She has breast cancer and has filed a medical malpractice claim. Photo by SCOTT KEELER/Times [SCOTT KEELER  |  TAMPA BAY TIMES]
Left tot Right: US Army Reserves Captain Jessica Purcell, 37, St. Petersburg, spends time with her 10-month-old son Jameson, and her attorney Natalie Khawam on Jan. 21, She has breast cancer and has filed a medical malpractice claim. Photo by SCOTT KEELER/Times [SCOTT KEELER | TAMPA BAY TIMES]
Published Feb. 14

America’s men and women in uniform sacrifice enough, and they should not be abandoned when they are harmed due to someone else’s negligence. That’s why a provision in this year’s defense budget authorizing service members to file medical malpractice claims is so in keeping with American values and the ideals of a professional military.

The Tampa Bay Times’ Ileana Najarro put a human face to the policy change with her profile of Jessica Purcell, a captain in the Army Reserve who was pregnant with her first child when she noticed a swollen lymph node under her arm in 2017. Health care providers at a MacDill Air Force Base clinic told Purcell it was likely an infection or condition related to her pregnancy. Despite their later assurances the issue was resolved, Purcell sought the care of a doctor off-base, who diagnosed the underarm mass as Stage 2 breast cancer. Purcell was 35, pregnant again - and she had no right to sue for malpractice.

That’s the legacy of a 1950 Supreme Court ruling known as the Feres doctrine, which prohibits service members from suing the federal government under the Federal Tort Claims Act for any injury sustained while on active duty that was “incident to service." That broad exclusion was never defined, though over the past 70 years it has been cited in response to a range of claims, from medical negligence to workplace violence. Efforts to overturn the ruling through the courts and Congress have failed, with some claiming that allowing litigation would be too expensive or undermine military discipline.

But thanks in part to Tampa lawyer Natalie Khawam, the effect of the doctrine was substantially curbed in the FY 2020 National Defense Authorization Act, which created an administrative process to hear medical malpractice claims. The new rights are fairly restrictive; claims are limited to personal injury or death stemming from malpractice by a Defense Department health provider, and they must be filed within a narrow time frame. The Defense Department will oversee the claims process, and claimants cannot appeal their cases in federal court. Still, this is a meaningful step, and by its own actions the Pentagon will demonstrate whether these rights need stronger congressional or court protection.

Purcell, 37, who lives in St. Petersburg, splits her treatment between Tampa’s Moffitt Cancer Center and the Dana-Farber Cancer Institute in Boston. She’s on medical leave from work at U.S. Central Command and U.S. Special Operations Command at MacDill and expects to remain in treatment for life.

Congress has made a change that will promote accountability in the military. Just as service members are responsible for their actions in uniform, health care providers must also perform to the standards of a modern military. Service members naturally assume risks in volunteering for national duty. But they have a right to expect competence in their ranks, and to hold those responsible who act with negligence. Congress should monitor this long-overdue reform and make sure it goes far enough.

Editorials are the institutional voice of the Tampa Bay Times. The members of the Editorial Board are Times Chairman and CEO Paul Tash, Editor of Editorials Tim Nickens, and editorial writers Elizabeth Djinis, John Hill and Jim Verhulst. Follow @TBTimes_Opinion on Twitter for more opinion news.

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