A question raised by this report, but not answered, is whether this veteran’s family was entitled to file a medical malpractice wrongful death claim against the government? The answer is, “It depends.”

First, it depends on whether denying appropriate mental health care to a patient with diagnosed PTSD is in fact negligent. Second, it depends on whether the family can establish that the failure to provide care was a direct and proximate cause of the veteran’s suicide. Finally, it depends on the state where the negligent care, or lack thereof, occurred.

Let me address the questions posed in reverse order. Under the Federal Tort Claims Act, the claimant must apply the law of the state where the negligent conduct occurred. Some states do not allow damage recovery for suicide. They consider suicide to be a form of contributory negligence or self-inflicted wound.

If the state law includes suicide in its wrongful death statute, then the family will have to prove by expert testimony that the veteran’s death was directly caused by the negligent provision, or negligent failure to provide, adequate mental health care which would have avoided this outcome. This is often difficult to do but will turn on the facts of each case.

Finally, the family will have to prove that the mental health care provided breached the standard of care. This is always a challenge in mental health cases. Unlike medical cases, where the treatment regimen is often quite clear once a diagnosis is made, psychiatric cases are far more complicated. Proving that the doctors treating the patient were negligent is never easy because treating such patients is never easy. As a consequence, claimants are well advised to consult with an experienced attorney before filing such claims under the FTCA. In the appropriate circumstance such cases can result in substantial recoveries for the family which suffers such a devastating loss.

Twenty years ago Congressman Barney Frank of Massachusetts introduced a bill in Congress to amend the FTCA to allow active duty service members to sue for medical malpractice injuries occurring in “fixed military medical facilities.” Hearings were held and the House of Representatives passed the bill overwhelmingly. Unfortunately, the bill died in the Senate after intense lobbying against it by both the Justice Department and the Defense Department. Given the outcome of the recent elections, that result might change if the bill were to again come up for consideration.

When this bill was last considered, the Senate was controlled by the Republicans. The bill never got out of the Senate Armed Services Committee because Senator Strom Thurman, the Republican committee chairman, refused to bring it up for consideration. Even if it had been reported out of committee, it is unlikely it would have been passed by the Republican controlled Senate. It certainly would have been vetoed by President George H. W Bush. With a Democratic majority in both the House and Senate and a Democratic President, things might be different this time around. In addition, today there seems to be more empathy for soldiers injured as a result of medical malpractice. All these factors could result in the first change to the FTCA in over forty years.

If Congress were to allow soldiers to sue for medical malpractice, there certainly would be limitations applied to that right. First, soldiers would not be allowed to file claims for care received outside a “fixed medical facility” nor would claims be allowed for soldiers in a deployed status. There would also be a requirement that any military of VA disability benefits received as a result of a medical malpractice injury be offset against any FTCA recovery. These are all reasonable limitations that were included in the original legislation and would surely be included in any new bill. On balance, however, amending to the FTCA to allow soldiers to file such claims would be a fair extension of the law, and one which would be welcomed by all service members and their families.

Testimony by former KBR employees substantiated the gross conduct of that company in performing its responsibilities under contracts with the Army Corps of Engineers. These incidents raise the interesting legal question of whether Halliburton KBR can be held legally liable for the death and injury of active duty soldiers resulting from its negligence.

It is well established that active duty soldiers cannot sue the government for injuries or death sustained incident to their service. That prohibition, however, does not apply to independent contractors working for the government such at Halliburton KBR. Such contractors are bound by the same rules as all non-governmental entities and must exercise reasonable conduct in the performance of its duties to those who foreseeable could be injured by their negligence.

Bottom line—while the United States cannot be sued by an injured soldier, an independent contractor such as Halliburton KBR can. Such an action would have to be filed in Texas federal court where Halliburton KBR has its corporate headquarters. The biggest obstacle to bringing such an action is the need to do so in a timely manner before the statute of limitations runs.

An action against Halliburton KBR can be pursued even if the soldier or his family has already received government benefits arising out of his/her injury or death. Of particular note is that government benefits do not compensate a soldier or a soldier’s family for such injuries as pain, suffering, and loss of society. No such limitation exits regarding a claim against an independent contractor.

If you or a loved one has been seriously injured as a result of electrical hazards in Iraq, you are encouraged to contact our military medical malpractice law firm for a free consultation.

If you or a member of your family is diagnosed with cancer and you believe your military/VA doctors were negligent, please contact our firm, the Military Medical Malpractice Legal Network. We can assess your treatment and determine whether you were the victim of substandard care and whether that negligent care resulted in damages for which you are entitled to compensation. It is important that you consult an attorney shortly after your diagnosis so as not to allow the statute of limitations to run out. Timely attorney consultation will also insure that all necessary records are secured before they are lost, misplaced, or altered.

Our firm filed a claim against the Navy under the Federal Tort Claims Act. Upon receipt of the medical records we determined that civilian doctors had treated this lady at the Navy clinic. We therefore filed a law suit against the doctors and the civilian company that employed them. When the six month FTCA administrative claims period had run, we joined the United States to our suit. This was all very tricky since California law provides a one year statute of limitation to bring a medical malpractice suit while the FTCA allows two years. Had we missed the California statute of limitations, the sailor and his family would have been barred from suing the civilian doctors.

As things turned out, the Navy blamed the civilians for not properly treating this patient and the civilians blamed the Navy. Both of them, of course, blamed the patient who was dead. After over a year of discovery, both the United States and the civilian company settled with the family.

This case demonstrates how important it is to pursue a claim in a timely manner and to secure the services of a firm which has the experience and resources to take on both the government and a large corporation simultaneously.

The major difference between these statutes is that under the MCA the claimant has no right to sue the United States in court. It may be unfair, but it is the law.

The Doctrine of Sovereign Immunity is a vestige of the common law which the United States adopted when it was created. That doctrine states that a citizen cannot sue the government without the government’s permission. Prior to 1946, no citizen could sue the United States government for any injury caused by a government employee. In that year, however, Congress passed the FTCA which provided for the partial waiver of its sovereign immunity. It did not include claims arising overseas. To fill in this gap, Congress passed the Military Claims Act which has its own special rules – one of which is that no claim can be filed in a federal district court.

Please view the Military Medical Malpractice Legal Network website for more information about how to file a medical malpractice claim.