The culmination of a pregnancy is a time of great excitement for the entire family. But sometimes things can go wrong during childbirth despite an uneventful pregnancy. One type of birth injury is hypoxic ischemic encephalopathy (HIE). Sometimes, HIE is the result of negligence by the obstetrician who delivers the baby. If this error occurs at any civilian hospital, the victim’s family can file a lawsuit for medical malpractice and claim compensation. But an active member of the services may be denied compensation for medical negligence at a military hospital due to an archaic law. Here are some facts about HIE birth injuries and medical malpractice at military medical facilities.

What is HIE?

HIE is a type of brain damage that occurs when a baby’s brain does not get enough blood and oxygen during childbirth. The condition is also known as neonatal encephalopathy, perinatal or birth asphyxia, and oxygen deprivation at birth. It is estimated that HIE affects 20 out of 1000 full-term infants and as many as 6 out of 10 preterm babies. HIE is the leading cause of infant mortality in the United States and can lead to severe physical and mental impairments in babies that survive.

Several medical and environmental conditions, such as preeclampsia, prolonged labor, and maternal drug and alcohol abuse, can cause HIE. However, when HIE is the result of negligence by a hospital or physician, it is an avoidable birth injury and becomes the subject of a medical malpractice lawsuit.

Is malpractice at a military hospital different from negligence at a civilian healthcare facility?

Yes, medical malpractice at a military hospital is tried in front of a federal court judge and not a jury in a regular civilian court. This is because Veterans Administration (VA) hospitals, federally-funded clinics, and other military healthcare facilities fall under the jurisdiction of the federal government. In other words, if anyone files a lawsuit against a military hospital, they are filing a claim against the government.

What prevents an active member of the services from receiving compensation when a military doctor’s negligence causes HIE?

The Federal Tort Claims Act (FTCA) and an archaic law called the Feres Doctrine. Although the doctrine has received much criticism because it is unfair to active service members, it continues to remain in force. This law basically states that active military personnel cannot sue for negligence or poor quality healthcare at military medical facilities because these are considered injuries in the line of duty. Victims are thus barred from seeking compensation for errors that occur at military hospitals. The complications and injustice of the law are illustrated by this case of a civilian father and military mother whose baby suffered birth injuries at a Colorado army hospital.

How to file a malpractice claim for HIE against a military doctor and/or hospital?

The statute of limitations for FTCA claims is two years from the date of injury (but can be longer in some cases, due to military service, for example). The parents of the child who suffered a birth injury at a military hospital are required to fill out a form and state the maximum compensation they are seeking. It is critical to understand the enormity and entirety of the financial burden an HIE injury will place on the family and make a claim accordingly. The military hospital then has six months to either:

  • Pay the compensation in full as claimed by the family
  • Settle for less than the claimed amount
  • Reject the claim outright or not respond in the six-month timeframe (parents can then file a lawsuit in a federal court)

It is unfortunate that people who dedicate their life to the country are treated so unfairly. But for now, the Feres Doctrine stands and can prevent victims from getting compensation for medical malpractice at military hospitals.