How to file a Tort Claim and what to expect?

2021-02-12T00:12:44-05:00

I hurt myself in April of 2020. I was getting better and wanted to use an offpost Chiropractor. I was told I had to use the military Chiropractor at the hospital. So I got a referral to the Chiropractor from my PA. My wife and I go and he popped my back. This was December of 2020. I started feeling a slight pain down my right leg. I go to my next appointment a couple of weeks later and I complain about the pain. He pops me again and orders an MRI. Come to find out I have a herniated and bulging disks. And I was in even more pain. So I go back 1 more time to see results and I shouldn't have but he popped me again. A few hours later I pass out from pain at work and end up in the ER. and now I maybe facing a medical retirement because I'm not getting better and in an extreme amount of pain. I am not the first person that I have been told that the chiropractor hurt or made conditions worse.

Response by CAPT Kevin B. made Feb 12 at 2021 11:03 AM

2021-02-12T11:03:25-05:00

In general, the Government enjoys Sovereign Immunity, which precludes tort suits for things like malpractice. That said, the needle has moved ever so slightly over the past few years. Actually being successful is another thing. You won't get very far with damages because you're being compensated with a military retirement. Rather than just toss you, surgery to install a TOPS prosthetic with fairly quick rehab/recovery as compared to fusion should be looked at. It's vastly better than fusion as you retain range of motion. Since VA has sponsored that procedure for a Vet friend of mine, I'd presume it would be available, if warranted. The decision to keep or separate is a business one. If the process is continually aligned to push you out, then you see that decision was either made or people that matter got lazy and didn't care to lean to. The MIL side loves to flick their boogers over to VA. That is a hard cultural norm to overcome.

Response by SFC Casey O'Mally made Feb 12 at 2021 11:49 AM

2021-02-12T11:49:06-05:00

My understanding is that as CAPT Kevin B. referenced, the military is generally exempt from being sued under what is known as the Feres Doctrine. As he also said, the needle has recently been starting to move ever so slightly. But even with that movement, as far as I know, it has come in the form of family members suing, not service member (or veterans) suing on their own behalf. Things like widows/widowers suing for wrongful death of their spouse, etc. Even those seem to have a VERY low chance of success.

I am not saying this to discourage you, just to let you know what the landscape looks like. If you still want to go ahead, more power to you. However, as SGT Robert Johnson pointed out, this is very likely to be a costly endeavor. Only you can decide whether the large financial investment is worth the risk of losing, if you DO go forward, please go forward with eyes open.

Final word on this is that if you DO find a lawyer willing to take your case, if they give you any sort of assurance like this is a slam-dunk or an easy win or anything like that, RUN. Because of the Feres Doctrine, this will be a hard case to win, and involve a LOT of paperwork, fighting and time. Any lawyer who tries to sell you a different bill of goods is not honest enough for you to be working with.

Response by SGM Bill Frazer made Feb 12 at 2021 2:31 PM

2021-02-12T14:31:29-05:00

Damn hard to impossible to sue the Gov't. Ask a lawyer, but few have ever made a go.

Response by Lt Col Jim Coe made Feb 13 at 2021 2:45 PM

2021-02-13T14:45:19-05:00

It's extremely difficult to sue a military medical practitioner for malpractice. The Service covers them financially, i.e., they don't normally have malpractice insurance. You might find a civilian lawyer who would take your case, but be very careful not to get sucked into a scam. If the chiropractor was following standard treatment protocol for the symptoms with which you presented, then the chance of successfully pursuing a malpractice claim are low.

I recommend you take your complaint to the military medical facility "patient advocate." They might not have that exact job title, but most hospitals have a person designated to receive patient complaints, investigate them, and report to the hospital administrator (commander) and the patient. If you don't find a patient advocate, try the hospital IG.

Also, go back to the PA, or better yet the doctor for whom the PA works, and discuss your problem. They may be able to recommend an alternative course of treatment.