5-6.
NONSERVICE-CONNECTED INJURIES COVERED
a. Nonservice Connected. Claims by veterans for conditions that are non-
service connected (not incident to service) are covered by the Federal Tort Claims Act.
b. Not Incident to Service. Members of the armed forces can recover if injury
is not incident to service. In Brooks vs. United States (US 1949), claims were made
against the US Government for injuries to one serviceman and death to another
occurring while the soldiers were on furlough, and not in any way incident to their
military service. At the time of the accident, the two soldiers were riding in their own
automobile while on leave and were struck by a US Army truck driven by a civilian
employee of the Army. The court honored this suit. Many times, however, it is not
always clear whether or not a military member was injured incident to service.
However, anytime a service member is injured on a military installation, he or she is
injured incident to service. When a service member is on active duty and injured
incident to service, the Government cannot be sued for negligence of its employees.
NONSERVICE-CONNECTED INJURY COVERED UNDER THE
FEDERAL TORT CLAIMS ACT
In Santana vs. United States (US C.A., 1st) (1950), an honorably discharged soldier
died as a result of treatment at a Veteran's Administration hospital. Since he was not in
the service at the time the negligence occurred (he had returned to private life as a
discharged veteran), the negligence was nonservice connected. Acceptance of his
claim under the Federal Tort Claims Act did not involve "subversion of military
discipline."
5-7.
DISPUTE RESOLUTION MECHANISMS
a. Screening Panels. A number of states have enacted laws requiring all
malpractice claims to be screened by a panel before a suit can be filed. The panels are
aimed at promoting a settlement of meritorious claims and an abandonment of frivolous
ones. A few courts have held screening panels to be an unconstitutional infringement of
rights of access to courts. For the most part, however, courts have upheld the required
use of screening panels since the plaintiffs still have the right to sue after the screening
process is completed.
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