(b) is on a military installation; or
(c)
is in a military aircraft; or
(d)
is in a military medical/dental facility.
(5) Derivative suits by dependents. If the soldier cannot sue, how about the
spouse? A spouse or dependent child can sue for injuries that THEY sustain; that is,
the spouse/child is the victim. They cannot, however, sue for derivative injuries, which
are those that they sustain as a result of the injury to the soldier. In other words, the
spouse or children cannot sue for derivative injuries, which are those they sustain as a
result of injury to the soldier. So, the wife/husband could sue for their own injury, but
could not bring a suit for wrongful death or loss of consortium as a result of the injury to
the soldier. Suppose a military helicopter veers off-course and crashes into a set of
Government quarters on Ft. Sam Houston. The soldier who lives there is injured, as are
his spouse and children. Can any of them bring suit under the FTCA? The soldier
cannot. He was injured "incident to service," so the Feres bar prohibits his suit. The
spouse and children can bring suit for their own injuries, but not for injuries sustained by
the soldier. Suppose they were all asleep at the time of the crash, and the soldier
wasn't on duty? The answer is that it doesn't matter. "Incident to service" includes
mishaps occurring on-post.
(6) Soldiers cannot sue. Why not let soldiers sue the military under the
FTCA? The reason is because courts do not want to have soldiers sue their superiors
every time they are ordered into harm's way or otherwise told to do anything. Courts do
not want to get involved with having to police everything a commander tells his soldiers
to do; such a situation would destroy military discipline and make it impossible for
commanders to effectively give orders to their subordinates. Imagine a commander
who orders his soldiers to something that they perceive as unwise and dangerous. The
military couldn't function with orders routinely questioned and subject to lawsuits and the
review of our courts.
(7)
The process for seeking recovery under The The Federal Tort Claims
Act.
(a) The injured party must first file an administrative claim within 2
years of the time he knew or should have known of the injury. The time period is
normally tolled, or interrupted, during a period when the patient would not reasonably
have known, for example, of an object having been left in his body.
(b) The government has 6 months to review and either pay or denies
the claim. If the government does nothing, the plaintiff can proceed to court as though
the claim had been denied.
(c) The injured party can sue in US District Court if: (1) No settlement
within 6 months; or (2) formal denial. Note that the lawsuit must then be filed within 6
MD0033
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