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rom the Los Angeles Times
Military medical malpractice: Seeking recourse
Outrage over a recent spate of incidents spurs fresh efforts to overturn the
Feres doctrine, a 1950 Supreme Court decision denying active-duty service
members the right to sue over medical errors.
Feres v. United States, 340 U.S. 135 (1950)
http://supreme.justia.com/us/340/135/
By Walter F. Roche Jr.
Los Angeles Times Staff Writer
April 20, 2008
Minutes after routine surgery for acute appendicitis in October 2003, Staff
Sgt. Dean Witt, 25, was being moved to a recovery room at a Northern
California military hospital when he gasped and stopped breathing.
A student nurse assisting an understaffed anesthesia team tried to
resuscitate Witt and failed. Inexplicably, Witt's gurney was wheeled into a
pediatric area. Lifesaving devices sized for children, not a 175-pound
adult, proved useless, according to an internal report on the incident.
Medical personnel at David Grant Medical Center at Travis Air Force Base
screamed at each other. A double dose of a powerful stimulant was mistakenly
administered. When a breathing tube was finally inserted, it was
misdirected, uselessly pumping air into the patient's stomach. Errors
compounded errors and delays multiplied.
By the time a breathing tube finally was inserted correctly, Witt had
devastating brain damage. Three months later, he was removed from life
support and died. Witt, who grew up in Oroville, Calif., left behind a wife
and two children, including a 4-month-old son.
"This medical incident was due to an avoidable error," concluded an
unpublished internal report, a copy of which was reviewed by The Times.
Despite questionable medical care criticized in the report, the bereaved
family could not sue for malpractice because Witt was an active-duty airman.
Under limits stemming from a Supreme Court ruling nearly 60 years old,
military hospitals and their staffs are immune from malpractice claims --
even for the most egregious lapses -- if the victim is an enlisted member on
active duty.
A series of court rulings since 1950 have upheld the original decision,
known as Feres vs. United States, denying members of the military the right
to sue for damages over medical errors or even deliberate wrongs.
Barbara Cragnotti of Medford, Ore., learned of the Feres case after her son
Joseph suffered lung and neurological injuries from undiagnosed pneumonia
while under a military doctor's care. Joseph Cragnotti was in the Navy and
had nearly completed training for submarine duty when he was stricken.
Military medical personnel failed to provide antibiotics, and her son ended
up having multiple surgeries. He lost part of a lung. His mother said his
condition deteriorated further after doctors at the naval hospital in
Bremerton, Wash., took the sailor off a needed drug, causing seizures and
permanent neurological damage.
Joseph Cragnotti, now 28, has left the military but still needs treatment
for his medical conditions.
His mother joined VERPA -- Veterans Equal Rights Protection Advocacy -- a
nonprofit group determined "to expose and remedy" what it calls "the
un-American Feres doctrine."
Barbara Cragnotti, now head of the organization, foresees more trouble as
wounded troops from Iraq and Afghanistan strain a taxed military health
system. "Congress is not going to act until the public forces them to," she
said. The military medical establishment is "hiding behind the Feres
doctrine."
Christine Lemp, whose husband, James, 35, died after receiving questionable
medical care at Missouri's Ft. Leonard Wood, said accountability was
lacking. "One of the most disturbing things is that these doctors can do
anything and nothing happens," she said.
Army Capt. James Lemp was diagnosed with a stomach virus in 2003. Hours
later, he was brain-dead from a stroke-like condition called vertebral
artery dissection. Experts hired by his wife said that with proper
treatment, he would have had a 90% chance of recovery.
Defending the doctrine
Feres supporters say the doctrine is necessary to protect the military from
costly, time-consuming trials that could compromise military discipline.
Rep. Duncan Hunter (R-Alpine), a member of the House Armed Services
Committee and a former fighter pilot, called Feres "a reasonable approach to
ensuring that litigation does not interfere with the objectives and
readiness of our nation's military."
For years, the Department of Justice and the Pentagon have joined forces to
fend off legal and legislative challenges to Feres.
"Nobody wants some judge meddling in military matters," Paul Harris, then a
deputy associate attorney general, told a Senate committee in 2002. "It
would have dire implications."
Harris, now in private practice, said he stood by his position that "it
would be unconscionable to subject the military to an adversarial civil
trial process."
But fresh attempts to repeal Feres are in the works, spurred in part by the
case of Marine Sgt. Carmelo Rodriguez. In January, a CBS News TV crew had
just arrived to interview him when Rodriguez -- holding the hand of his
7-year-old son -- died. Rodriguez, 29, an Iraq war veteran from New York,
had been ravaged by cancer that he and his family blamed on years of
misdiagnoses.
Military doctors had mistaken a deadly melanoma for a wart.
His case prompted Rep. Maurice D. Hinchey (D-N.Y.) to promise renewed
efforts to overturn Feres. Previous bills have passed easily in the House
but died in the Senate.
"No service member should ever become sick or die as the result of poor
military medical care," Hinchey said. "I believe our military has
outstanding doctors, but if those doctors fail our men and women in uniform,
then there must be some system of accountability."
Military is 'sole remedy'
One former military doctor told The Times that military medical staffs were
well aware that Feres shielded them from malpractice claims by active-duty
patients or their survivors.
The doctor, who spoke on the condition that he not be identified, served on
the medical staff at Travis Air Force Base. He said staff shortages were
chronic there and at other Air Force installations where he worked.
Under such circumstances, he said, "they'll take anyone."
James B. Smith, a New Jersey lawyer who served as a military trial judge
during a 30-year service career, said the theory behind Feres was that since
the military provided full medical care for members and lifelong veterans
benefits, there was little practical need for financial damages for
malpractice. "The military is already providing for you, and that's your
sole remedy," Smith said.
The 1950 Feres decision encompassed three separate cases. One involved a
soldier named Rudolph J. Feres who died in a fire caused by a faulty
barracks heating system. The others were the victims of medical malpractice.
One had sued after a towel nearly 3 feet long was discovered in his abdomen,
left there by military surgeons.
The court was interpreting the Federal Tort Claims Act, which gives citizens
a limited right to sue the government for wrongs resulting from the actions
of federal employees or agencies.
But the Supreme Court, in a unanimous opinion by Justice Robert H. Jackson,
reasoned that active-duty members of the military could seek other remedies
for such wrongs, including Veteran
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