Active-Duty Military Malpractice After the 2020 NDAA: What Changed

Last Updated: June 26, 2026

For decades, active-duty servicemembers who were harmed by military medical malpractice had no meaningful legal remedy. The Feres doctrine — a 1950 Supreme Court decision — completely barred active-duty personnel from suing the federal government for injuries incident to service, including medical malpractice at military hospitals. The National Defense Authorization Act for Fiscal Year 2020 (2020 NDAA) changed that — but only partially. This guide explains exactly what changed, what remains blocked, and how the new 10 U.S.C. § 2733a pathway works.

The Pre-NDAA Problem: Feres Blocked Everything

To understand what the 2020 NDAA accomplished, you need to understand what it replaced.

In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that the Federal Tort Claims Act (FTCA) — the law that otherwise waives the government's sovereign immunity and allows tort suits — does not apply to servicemembers for injuries that are "incident to service." The Court created this exception without any explicit statutory text requiring it. For active-duty malpractice victims, Feres was an absolute wall.

Under the pre-2020 regime:

• An active-duty soldier botched in surgery at Walter Reed had no FTCA remedy
• An airman misdiagnosed at a military treatment facility could not sue in federal court
• A sailor harmed by a military OB-GYN during childbirth was completely barred

The only options were military disability benefits — which compensate for disability, not for negligence — and the occasional congressional bill of relief. Neither was adequate. For over 70 years, servicemembers bore the cost of military medical negligence with no accountability mechanism.

What the 2020 NDAA Created: 10 U.S.C. § 2733a

Section 731 of the National Defense Authorization Act for Fiscal Year 2020 added 10 U.S.C. § 2733a to federal law. This provision creates, for the first time, an administrative claims process within the Department of Defense specifically for active-duty malpractice claims.

The new law applies to personal injury or death caused by:

• Medical, dental, or veterinary care provided at a military medical facility
• Healthcare provided by a military healthcare provider in the course of their official duties

This is a significant departure from the pre-2020 era. It means a soldier who receives negligent surgical care at a military hospital now has a legal mechanism — within the DoD — to seek compensation.

How the § 2733a Process Works

The 10 U.S.C. § 2733a process is administrative, not judicial. Here is how it works step by step:

Step 1: File Your Claim With the Correct Military Branch

Active-duty servicemembers file their malpractice claim with the Secretary of the applicable military department — Army, Navy (which includes Marines), or Air Force (which includes Space Force). The claim must be in writing and include:

• The nature and circumstances of the injury
• Medical documentation
• A claim for a specific dollar amount (a "sum certain")

Step 2: Independent Expert Review

Unlike standard administrative claims, § 2733a requires independent expert review of active-duty malpractice claims. The reviewing official must assess whether the care provided fell below the applicable standard of care. This expert review is a gatekeeper — it filters claims without medical merit before any compensation decision is made.

Step 3: The Secretary Acts Within One Year

The Secretary of the relevant military department must act on the claim within one year of filing. This is a firmer timeline than the standard FTCA administrative review, where agencies technically have six months but claims often languish longer. The Secretary may:

• Deny the claim
• Offer a settlement
• Award compensation based on the DoD's valuation of the claim

Step 4: No Federal Court Appeal

Here is the critical limitation: there is no federal court right under § 2733a. If the Secretary denies your claim or offers inadequate compensation, you cannot appeal to a federal court jury. The administrative decision is the end of the road under this provision.

How § 2733a Claims Are Paid: The $100,000 Threshold

A common misconception is that § 2733a caps recovery at $100,000. It does not. The $100,000 figure is a payment-routing threshold, not a ceiling on damages:

• Claims valued at $100,000 or less are paid directly by the Department of Defense — the relevant military department settles and pays them.
• Meritorious claims valued above $100,000 are handled differently: under the statute, the DoD pays the first $100,000 and refers the remaining amount to the U.S. Treasury for payment under 31 U.S.C. § 1304 (the Judgment Fund). A catastrophic claim can therefore be valued — and paid — well above $100,000.

What actually constrains a § 2733a recovery is not a flat dollar cap but the DoD's own valuation regulations (32 C.F.R. Part 45), which govern how each category of damages is calculated administratively. This is a meaningfully different — and generally less favorable — process than litigating damages before a federal judge under the FTCA, the pathway available to discharged veterans. For comparison, the Archuleta Law Firm has recovered over $145 million for FTCA clients across 600+ cases, with an average client settlement of $241,641.

What § 2733a Does NOT Provide

Understanding the limits of the 2020 NDAA reform is just as important as understanding what it provides. Congress made a policy choice to fix only part of the problem.

§ 2733a does NOT provide:

• Access to a federal court jury trial — the process is entirely administrative within the DoD
• Punitive damages — compensation is limited to actual damages, as under the FTCA
• A right to litigate damages in court — § 2733a damages are valued administratively under DoD regulations (32 C.F.R. Part 45), not by a federal judge; claims above $100,000 are paid in part through the U.S. Treasury rather than awarded at trial
• A change to the Feres doctrine itself — the Supreme Court's ruling in Feres v. United States remains intact; active-duty servicemembers still cannot bring traditional FTCA suits in federal court
• Coverage for injuries not caused by healthcare — non-medical injuries on active duty are still largely barred by Feres

The bottom line: § 2733a is a partial fix. It gives active-duty servicemembers a limited administrative remedy where none existed before, but it does not put them on equal footing with civilians or discharged veterans who can pursue the full FTCA process.

The Feres Doctrine: Still in Force

It is important to be clear about what the 2020 NDAA did not do. It did not overrule Feres v. United States. The Supreme Court's decision remains the law. Active-duty servicemembers still cannot file a traditional FTCA lawsuit in federal court for injuries incident to service.

What Congress did was carve out a parallel administrative track — a DoD-internal mechanism — that works alongside (and around) Feres. This matters because:

1. The legal bar on federal court suits for active-duty claims was not removed
2. The § 2733a remedy exists entirely within the executive branch
3. Any future congressional action to further reform Feres would be separate legislation

For ongoing legislative context, see our guide on Feres doctrine reform.

Active-Duty vs. Veteran: Two Different Pathways

One of the most important distinctions in military malpractice law is the difference between an active-duty claim and a veteran's claim. The pathway — and the potential recovery — is very different.

Active-Duty Servicemember (Currently Serving)

• Law: 10 U.S.C. § 2733a
• Where filed: DoD administrative claim (Army, Navy, Air Force Secretary)
• Court access: None — administrative only
• Damages: Valued administratively under DoD regulations (32 C.F.R. Part 45); amounts above $100,000 paid in part via the U.S. Treasury
• Expert review: Required by statute
• Punitive damages: Not available

Discharged Veteran Receiving VA Care

• Law: Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680
• Where filed: Administrative claim with the VA, then federal district court if denied
• Court access: Full federal court access after denial or 6-month inaction
• Cap: No fixed statutory cap (actual damages)
• Expert review: Required to build case; not a statutory prerequisite
• Punitive damages: Not available under FTCA
• Attorney fees: Capped at 25% of judgment or 20% of administrative settlement (28 U.S.C. § 2678)

The key takeaway: once a servicemember is honorably discharged and receives care through the VA, they move off the § 2733a track entirely and onto the full FTCA track. The Feres doctrine does not apply to veterans receiving civilian-equivalent VA care. This is an important legal transition that many separated servicemembers do not realize has occurred.

Practical Steps If You Are Active-Duty and Were Harmed

If you are currently on active duty and believe you received negligent medical care at a military treatment facility:

1. Document everything immediately. Obtain copies of all medical records, treatment notes, imaging studies, and operative reports. Military records can be difficult to obtain later.

2. Be aware of time limits. The § 2733a regulations require timely filing. Do not assume you have unlimited time.

3. Understand the independent expert review requirement. Your claim will be evaluated by a medical expert. Having your own medical expert review the care before filing strengthens your position significantly.

4. Consult an attorney who knows both § 2733a and the FTCA. The two systems interact. An attorney experienced in federal military malpractice law can evaluate whether your claim is best pursued under § 2733a now or whether to preserve other options as your military status changes.

5. Consider your discharge timeline. If you are approaching separation from active duty, your pathway may shift from § 2733a to the full FTCA once you are discharged and begin receiving VA care.

Why the Administrative-Only Structure Matters

The most consequential limitation of § 2733a is not a dollar figure — it is that the entire process stays inside the Department of Defense. Consider the catastrophic injuries that arise in military malpractice cases:

• Surgical errors causing permanent paralysis
• Misdiagnosed cancers that become terminal
• Birth injuries affecting children for life
• Anesthesia errors causing brain damage
• Wrongful death of a young servicemember

A discharged veteran with an injury like these can take the government to federal court under the full FTCA, present expert testimony on damages to a judge, and obtain an uncapped judgment for the actual value of the harm. An active-duty servicemember under § 2733a cannot. Their claim is valued by the DoD under its own regulations (32 C.F.R. Part 45) and resolved administratively — with no judge, no jury, and no appeal to a court — even though, for the largest claims, the portion above $100,000 is paid by the U.S. Treasury.

This structural difference — administrative valuation versus a day in court — is why advocacy groups and military families have continued to push for further reform even after the 2020 NDAA. The law was a meaningful step, but it stops well short of the full tort rights that veterans and civilians have under the FTCA.

Learn More About the FTCA Process

If you are a discharged veteran or are approaching separation and have questions about the full FTCA process, the following resources explain the pathway in detail:

• FTCA Claim Process: Step by Step
• Standard Form 95: How to File Your FTCA Claim
• FTCA Statute of Limitations: The 2-Year Deadline
• Does the Feres Doctrine Apply to Veterans?

Related Articles

• The Feres Doctrine Explained →
• Does the Feres Doctrine Apply to Veterans? →
• Feres Doctrine Reform in 2025 →
• FTCA Statute of Limitations →
• Veterans Medical Malpractice & the FTCA →

The information provided on this website does not, and is not intended to, constitute legal advice. All information, content, and materials available on this site are for general informational purposes only. Readers should contact their attorney to obtain advice concerning any particular legal matter. No reader of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel licensed in the relevant jurisdiction.

The author, EJ Archuleta, J.D., is a 13-year federal practice lawyer. He is licensed to practice law in the courts of the State of Texas, is a member of the State Bar of Texas, and is admitted to the United States District Court for the Western District of Texas. He has helped hundreds of military service members, veterans, and their families receive compensation for injuries and wrongful death caused by the Department of Veterans Affairs and military treatment facilities.