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During my military enlistment I had surgery by a civilian doctor,

with a civilian medical practice...
During my military enlistment I had surgery by a civilian doctor, with a civilian medical practice (not affiliated with the government at all). Long story short, the surgery did not help, in fact it hurt me more. Now I am being discharged from the military and I am wondering if I am able to sue that civilian doctor who performed the surgery?
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Answered in 48 minutes by:
8/26/2013
Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20,474
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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Hello,

Thank you for the information and your question. Can you please tell me what this surgery done at the request and expense of the military service or was this something you did on your own? How long ago was the surgery? What State did it occur in?
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Customer reply replied 4 years ago

Hi, My I was referred to the civilian doctor by the military, so I guess it was done at the request and it was paid for by Tricare. I had the surgery in Mississippi in April 2010, however I just discovered that this will now impact me for the rest of my life because I have been discharged. Also, I did not find out until aprox 2011 that the doctor did the incorrect surgery to my foot.


 


Thank you.

Hello again and thank you for your reply and the additional information. It is likely, but not certain, that you would not have an independent cause of action against the doctor for medical malpractice that you could sue for. The reason is an legal doctrine decided by the Supreme Court decades ago. It is called the Feres Doctrine and that essentially states that a servicemember may not sue the Government, and in most cases an agent acting on behalf of the Government, for a negligent act that occurred incident to their military service. As a result of this doctrine, the Federal Torts Claim Act was enacted.

Under the FTCA, a servicemember can file a claim for a negligent act and it is processed much like a workers' compensation or insurance claim is. It is fairly complicated to explain and ultimately you will need to sit down with a local attorney who has experience with FTCA to see if, not only would it apply in your case because of this civilian doctor paid by TRICARE, but also because of the time line. There is a 2 year statute of limitations from the negligent act. There are some circumstances though, that are usually litigated, where the 2 year period might start when the negligence could have been discovered for the first time. So, this is by no means straightforward either way in your case.

I am fairly certain that the courts in your jurisdiction would find that this procedure falls under the Feres Doctrine and therefore, the FTCA would be your only option. If, by some odd chance, they would find that Feres did not apply here, then if this procedure was done in Mississippi you would have a 3 year statute of limitations. Again though, the statute can be extended in certain circumstances and you must speak to a local personal injury (trial/litigation) attorney about this.

Finally, just so you know. If you do have an ongoing disability or medical issue from this, you will likely qualify for VA Disability Compensation and should apply for that as soon as you can after you are discharged. Of course, you can also receive medical care through the VA.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
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Hello again--I am befuddled and disappointed that you chose to rate my assistance to you as poor. Not only did I tell you specifically what the law was and how it would apply to your situation, but I also provided you with additional information to assist you that you did not ask. Obviously I am not the trier of fact. As I mentioned, only the trier of fact, after reviewing all of your medical records will be able to tell you if you are covered under the Feres Doctrine. My opinion is that you are, but I don't have access to your records and am not a mind reader. In the end, you must have an attorney and you must file a FTCA claim in a timely manner in order to preserve this issue. I can't change the law or what might happen, I can only inform you of what it is.
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Customer reply replied 4 years ago

Ma'am,


 


I fully understand that you do not have my medical records therefore cannot give me a full answer, however the answer you did give me, I found on Google in 30 seconds.


 


My concern is this, (and the reason I paid to ask this question) the Feres Doctorine specifically states that a military member cannot sue the government, a military doctor, or a civilian doctor working in a military facility.


 


Now I may have tunnel vision, only seeing the things that I want to see, however I have done extensive research and I cannot find anything that specifically says that a military member (or veteran) cannot sue a CIVILIAN doctor who does not work for the military...

With all due respect your reading of a brief summary online of what the Feres Doctrine does or doesn't apply to is not dispositive. As I tried to convey to you this is a very complex area of the law and I can guarantee that your 30 seconds on Google would never be sufficient to conclude that you are covered or not covered under Feres. If this were that clear cut there would not be pages and pages of Federal court cases since this was decided in 1950 debating whether a particular circumstance is covered. As I stated Feres has been applied to agents of the Government. That means non-military people working in some capacity at the control, behest or pay of the Government.

Even if you were not covered by Feres in this, as I mentioned, your SOL in Mississippi would have only been 3 years from the date of the surgery. That time has passed. However, as I also stated, if this was something where the negligence could not be discovered, then some courts will extend the SOL based on when the injury could have been discovered.
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I have done some more research on your behalf and found a 9th Circ. Appeals Court case, which cites to other Supreme Court cases which would support the notion that as long as this doctor was acting as an independent contractor, he was not under the "control" of the Government and therefore not covered by the FTCA and Feres. Again though, you have the uphill battle with the SOL in Mississippi under general tort law.

This is the case: https://bulk.resource.org/courts.gov/c/F3/5/5.F3d.1302.92-35029.html
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