You may have learned while in the military that under the so-called 'Feres Doctrine',you couldn't sue the Government for injuries or harm negligently caused while you were on active duty. Nor could your family sue the Government for your death if caused by damages.
Among the latest to learn that hard lesson was the family of Marine Lance Cpl. Ezequiel Freire, who got out of Afghanistan alive, but who died as a result of a toxic cocktail of powerful narcotics and sedatives received as he was awaiting chemotherapy treatment for cancer stateside. "We trusted them, and they killed him," said Federico Freire, the dead man’s older brother and a fellow Marine. "It just sickens me."
However, one of the reasons the Supreme Court ruled the way it did in Feres v. United States, 340 U.S. 135 (1950), was because the Court recognized that a veteran injured while on active duty would likely be compensated by the VA.
Likewise, the veteran's survivors (widow, children, etc.) should be adequately compensated by the VA.
That's the bad news.
The good news, however, is that if you were injured by the VA while being treated for your active duty injuries or illnesses, it may be compensable by the VA under a what's known as a Section 1151 administrative claim. If granted, an1151 claim can result in a new or increased service-connected rating.
What many veterans and their Accredited Services Officers (ASOs) don't know is that, unlike law suits barred by the Feres Doctrine for active duty injuries, a veteran injured by the VA can also file a Federal Tort Claims Act (FTCA) medical malpractice suit in Federal court.
Moreover, evidence developed to support an FTCA claim can help support your Section 1151 claim.
On the other, evidence from a poorly developed Section 1151 claim can be used by the Government to help defeat your FTCA claim.
Because these two remedies for a VA-inflicted injury are so complexly intertwined, most legal experts recommend that before you have your ASO proceed with a Section 1151 claim, that you at least discuss your claim with an attorney who is familiar with the Federal Tort Claims Act.
