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Suing the United States Military
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If you are injured at work, the next step is usually to consult a lawyer and determine whether to bring a workers’ compensation claim against your employer. However, if you are injured while serving in the United States military, the situation is very different. The United States has protections in place that make it difficult to bring a lawsuit against the government or military for your injuries. These same protections apply to wrongful death or loss of consortium suits brought by the family of an active duty service member who is killed or injured.
The first protection is called sovereign immunity. Under this immunity, the U.S. (including the federal government and all military branches) cannot be sued in court unless it agrees to the lawsuit or voluntarily waives immunity. This protection prevents service members or their families from bringing lawsuits against the U.S. for injuries or death that occur during regular military activity.
Another protection is the Feres Doctrine. This rule prevents lawsuits against the U.S. when injuries or death occur because of negligence by the military, its doctors or its service members – so long as the injuries or death occur during active duty. So, even if an active duty service member is injured solely because of the mistake of other service members, a lawsuit is not possible. For instance, if an active duty service member died during a fire caused by a fellow active duty service member, no suit would be permitted against the U.S. in this case. Also, if an active duty service member is injured or killed because of a mistake by a military doctor, no suit is allowed against the U.S. or against the doctor.
Between sovereign immunity and the Feres Doctrine, it is very difficult to bring a claim against the U.S. for personal injuries or wrongful death during active duty military service. However, under the Federal Tort Claims Act the U.S. has waived its immunity in certain cases. Some cases are allowed if injury or death occurs due to negligence by a federal employee, when the employee is performing work that is not specifically governmental. A lawyer can help you determine whether a lawsuit is possible based on your situation. Below are a few general categories of cases that are often allowed because of the Federal Tort Claims Act or for other reasons:
Reserves, Inactive. If you are no longer on active duty (and sometimes when you are on furlough) and are hurt by the negligence of a federal employee, for instance by a doctor at a Veterans Administration (VA) hospital, you can generally bring a suit under the Federal Tort Claims Act. However, you must bring the lawsuit within two years of the date you knew, or should have known, about the negligence (this is the “Statute of Limitations”). In addition, you must file the proper Standard Form 95 in writing, including the dollar amount you are seeking for your injury (known as the “sum certain”). If you do not meet these requirements, you have not given proper “notice” to the government and your case will be dismissed.
Military Family Members. Family members of active duty service members are not under the same restrictions as active duty service members. If the wife of a service member is injured because of a visit to the military base doctor, a malpractice case is possible. In this same situation, the active duty spouse is generally allowed to bringing a case for loss of consortium or wrongful death, if applicable, based on the injury to the non-military family member.
Military Contractors. You can usually sue for negligence, even during active duty, if injury or death is due to negligence by a military contractor. This is true because the suit is against a private business or individual, not against the U.S. government. For example, if a service member jumps out of plane and her parachute fails to open because of a mistake in the design. The service member’s family could sue the parachute manufacturer.
Because of the difficulty bringing a lawsuit against the military, it is important to speak with an attorney who has expert knowledge of federal laws to determine when a case is possible. You should consult a lawyer with a long history of federal law experience and a successful track record with similar cases. For help finding a lawyer with this background, please call us at (312) 346-5320 or (800) 517-1614 or fill out our contact us form and we will contact you. Your inquiry will be kept confidential.