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Supreme Court Fails to Review Doctrine That Protects Military Hospitals From Malpractice Suits

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When I read about cases like those of Staff Sgt. Dean Witt, it seems hard to justify a doctrine that places strict limits on the ability of active-duty military personnel to sue military doctors for the medical malpractice that has injured them.

Witt was left in a “persistent vegetative state after an Air Force hospital botched what should have been a routine appendectomy,” Stars and Stripes reported. Stars and Stripes reported that medical staff at Travis Air Force Base in California made multiple mistakes after Witt’s 2003 surgery, including putting a breathing tube into his stomach and the use of resuscitation equipment designed for children, according to California medical records and Air Force briefing documents.

His case raised hopes that the Feres Doctrine, which protects the federal government from being held liable for injuries to or wrongful deaths of on-duty military personnel due negligence to, would finally be overturned.

On June 27, 2011, however, the U.S. Supreme Court refused to hear Witt’s military medical malpractice case. That lack of action appears to strengthen the 61-year-old legal precedent and could even prevent future legal challenges.

Although, as American Medical News recently reported, reversal of the Feres Doctrine would leave the government facing “hundreds of millions of dollars — if not billions — worth of medical liability claims,” the Supreme Court decision is a bitter blow to medical malpractice victims.

The Feres Doctrine stemmed from the death of Lt. Rudolph Feres, an active-duty soldier killed in a barracks fire at Camp Pine, New York (NY) in 1947. His widow sued the Army for negligence, claiming there was a defective heating plant and substandard fire safety controls at the base.

Three years later the Supreme Court ruled that under the law a service member performing military duties did not fall under legislation that permits civil lawsuits against the government or government employees. That ruling effectively bars active service personnel from suing for medical malpractice if the mistake has been made by a military hospital.

Our experienced Virginia (VA) medical malpractice attorneys have frequently argued the Feres Doctrine makes no sense. Recently my colleague Rick Shapiro argued the Feres Doctrine is archaic and the military should be held accountable for medical malpractice in the same way as everybody else. He handled a medical malpractice case involving a woman whose husband was in active service. She underwent obesity-reducing gastric bypass surgery in December 1996 by a surgeon in at Portsmouth Naval Hospital in Portsmouth, VA, and endured terrible after effects because of the improper stapling of the gastric pouch

We effectively argued the case by illustrating the damage done to the woman’s body and the lifelong effects of these mistakes. The judge ruled in our favor and the victim was awarded $550,000.

It makes little sense that had this woman’s husband been a victim of medical malpractice, the Feres Doctrine would have prevented him seeking legal redress if the mistake had been at a military facility. The military should be held accountable when medical malpractice occurs. If the Supreme Court isn’t going to act on this issue, Congress should take action.

DM

About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.

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  1. Jeffrey Ziegler says:
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    Be aware that it also protects the US military from legal malpractice.

    While I was on active duty with the US Army, I was threatened by a US Army lawyer named Captain Matthew Fitzgerald to do something which was contrary to the US Army legal regulations (which I did not know at the time but he did). Fitzgerald’s motive was to tout this as his first accomplishment on his annual performance report of which I later got a copy. This threat resulted in my losing over $50,000 of my personal funds.

    When I asked the top lawyer (now Lieutenant General Dana Chipman) for assistance, the first thing they did was appoint Fitzgerald’s previous boss and a very obvious friend to “investigate.” Since there was no wrongdoing found as a result of this faux investigation but specifics were protected by the Privacy Act , I filed the same complaint with Fitzgerald’s Oregon State Bar which is NOT PROTECTED under privacy laws. Evidence showed that Fitzgerald lied no less than 10 times to his Oregon State Bar.

    It was all thrown out of federal court due to Feres although I had a slam-dunk case with all evidence in my favor. Just to add insult to my financial injury, Fitzgerald got promoted to Major.

    Feres was NEVER designed 50 years ago to protect against corruption, misdeeds, and cover-ups by US Army lawyers. Today it protects against everything.