Military Medical Malpractice: Seeking Recourse
By Walter F. Roche Jr. The Los Angeles Times
Sunday 20 April 2008
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.
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unpublished internal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
Veterans Administration benefits. "The compensation system, which normally
requires no
litigation, is not negligible," Jackson wrote.
The Supreme Court came within a single vote of overturning Feres in
1987. Justice Antonin
Scalia wrote in the dissenting opinion for the four-member minority:
"Feres was wrongly decided
and heartily deserves the 'widespread, almost universal criticism' it has
received."
Among the curious aspects of Feres is that it bars malpractice suits
by active-duty
military personnel but not by their spouses or other family members, who
also are entitled to
treatment at military hospitals.
"It doesn't make any sense," said Washington-based lawyer Eugene
Fidell. "If a doctor
malpractices on a dependent on one day, the family can sue. But if he
commits the same
malpractice the next day on a GI, they can't."
An investigative panel convened by the Air Force shortly after Witt's
surgery concluded in
its still-unreleased report that "due to assignments, deployments and
recent ill health," the
anesthesia unit at the Travis Air Force Base hospital was badly
understaffed.
"There is insufficient manning to support operational tempo and the
teaching mission of the
hospital," the report said. It found that the authorized complement of
seven anesthesiologists
was down to four available for duty.
"This medical incident was due to an avoidable error," the report
said. "The practice of
anesthesia at a medical center should not rely on the minimum standard."
In response, Travis officials said the hospital could increase its
anesthesia unit only if
the Pentagon provided additional personnel. Base officials declined to
comment on any aspect of
the Witt case, citing privacy restrictions.
Legal Challenge
Despite the long legal odds, Witt's widow, Alexis, is determined to
challenge Feres in
court. This month she was formally notified that her administrative claim
against the Air Force
had been declined, an expected rejection that exhausted all options but
litigation.
"As a family," said her sister Carmen Voegeli, a Marine veteran, "we
have a right to know
what happened. How dare the military use these men and take away their
rights."
One haunting coincidence that could be a factor in the Witt family's
challenge of Feres
involves a nurse anesthetist who helped treat the airman. After Witt's
death, her license was
revoked by the state of California for "negligence and/or incompetence."
The same anesthetist had been on duty a year earlier when 22-year-old
Texas airman
Christopher White died after routine surgery on his shoulder. As in the
Witt case, post-surgery
care of White was criticized by the state nursing board.
White's family did not try to take legal action. If it had, that
might have brought
attention sooner to problems in the anesthesia unit.
His father, Harris White, said lawyers had advised him that he could
not sue because of the
Feres doctrine.
http://www.truthout.org/docs_2006/042008C.shtml
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Finally, the campaigns of 1793 and 1794 set Clausewitz on the path of
recognizing war as a
political phenomenon. Wars, as everyone knew, were fought for a purpose
that was political,
or at least always had political consequences. Not as readily apparent
was the implication
that followed. If war was meant to achieve a political purpose, everything
that entered into
war — social and economic preparation, strategic planning, the conduct of
operations, the
use of violence on all levels — should be determined by this purpose, or
at least accord
with it. Even though soldiers had to acquire special expertise, and
function in what in some
respects was a separate world, it would be a denial of reality to allow
them to carry on
their bloody work undisturbed until an armistice brought their political
employer back into
the equation. Just as war and its institutions reflected their social
environment, so every
aspect of fighting should be suffused by its political impulse, whether
this impulse was
intense or moderate. The appropriate relationship between politics and war
occupied
Clausewitz throughout his life, but even his earliest manuscripts and
letters show his
awareness of their interaction.
The ease with which this link — always acknowledged in the abstract —
can be forgotten in
specific cases, and Clausewitz’s insistence that it must never be
overlooked, are
illustrated by his polite rejection toward the end of his life of a
strategic problem set by
the chief of the Prussian General Staff, in which every military detail of
the opposing
sides was spelled out, but no mention made of their political purpose. To
a friend who had
sent him the problem for comment, Clausewitz replied that it was not
possible to draft a
sensible plan of operations without indicating the political condition of
the states
involved, and their relationship to each other: ‘War is not an independent
phenomenon, but
the continuation of politics by different means. Consequently, the main
lines of every major
strategic plan are largely political in nature, and their political
character increases the
more the plan applies to the entire campaign and to the whole state. A war
plan results
directly from the political conditions of the two warring states, as well
as from their
relations to third powers. A plan of campaign results from the war plan,
and frequently - if
there is only one theater of operations - may even be identical with it.
But the political
element even enters the separate components of a campaign; rarely will it
be without
influence on such major episodes of warfare as a battle, etc. According to
this point of
view, there can be no question of a purely military evaluation of a great
strategic issue,
nor of a purely military scheme to solve it.’
Everyman’s Library, 1993 ISBN: 0679420436 On war /by Clausewitz, Carl
von, 1780-1831.
Knopf, 1993. From the introduction by Peter Paret, Pg7
_____________________________________________________________________
The U-2 is a jet-powered reconnaissance aircraft specially designed to fly
at high altitudes
(i.e., above 70,000 ft [21 km]). It was used during the late 1950s to
overfly the Soviet
Union, China, the Middle East, and Cuba; flights over the Soviet Union,
the primary mission
for which the plane was designed, ended in 1960 when a U-2 flown by CIA
pilot Gary Powers
was shot down over the Soviet Union. This event was a major political
embarrassment for the U.S.
http://www.espionageinfo.com/Te-Uk/U-2-Spy-Plane.html
Soviet Prime Minister Khrushchev's reaction to the overflights which
were discovered
just before a summit conference in Paris with President Eisenhower: "It
was as though the
Americans had deliberately tried to place a time bomb under the meeting" .
. ."How could
they count on us to give them a helping hand if we allowed ourselves to be
spat upon without
so much as a murmur of protest?" The only solution was to demand a formal
public apology
from Eisenhower and a guarantee that no more overflights would take place
. . .
But the apology Khrushchev was looking for would not come. Despite
having trespassed
on the Soviet Union for the past four years with scores of flights by both
U-2's and heavy
bombers, the old general still could not say the words, it was just not in
him. . . A time
bomb had exploded, prematurely ending the summit conference. . .
Back in Washington, the mood was glum. The Senate Foreign Relations
Committee was
leaning toward holding a closed door investigation into the U-2 incident .
. . In public,
Eisenhower maintained a brave face. He "heartily approved" of the
congressional probe and
would 'of course fully cooperate,' he quickly told anyone who asked. But
in private he was
very troubled. For weeks he had tried to head off the investigation. His
major concern was
that his own personal involvement in the overflights would surface,
especially the May Day
disaster. Equally, he was very worried that details of the dangerous
bomber overflights
would leak out. The massed overflight may in fact, have been one of the
most dangerous
actions ever approved by a president.
pg. 51-55 ~Body of Secrets; Anatomy of the Ultra Secret National Security
Agency
James Bamford
----------------------------------------------------------------------
"Let me give you a word of the philosophy of reform. The whole history of
the progress of
human liberty shows that all concessions yet made to her august claims,
have been born of
earnest struggle. The conflict has been exciting, agitating,
all-absorbing, and for the time
being, putting all other tumults to silence. It must do this or it does
nothing. If there is
no struggle there is no progress. Those who profess to favor freedom and
yet depreciate
agitation, are men who want crops without plowing up the ground, they want
rain without
thunder and lightening. They want the ocean without the awful roar of its
many waters."
"This struggle may be a moral one, or it may be a physical one, and it may
be both moral and
physical, but it must be a struggle. Power concedes nothing without a
demand. It never did and
it never will. Find out just what any people will quietly submit to and
you have found out the
exact measure of injustice and wrong which will be imposed upon them, and
these will continue
till they are resisted with either words or blows, or with both. The
limits of tyrants are
prescribed by the endurance of those whom they oppress. In the light of
these ideas, Negroes
will be hunted at the North, and held and flogged at the South so long as
they submit to those
devilish outrages, and make no resistance, either moral or physical. Men
may not get all they
pay for in this world; but they must certainly pay for all they get. If we
ever get free from
the oppressions and wrongs heaped upon us, we must pay for their removal.
We must do this by
labor, by suffering, by sacrifice, and if needs be, by our lives and the
lives of others."
http://www.buildingequality.us/Quotes/Frederick_Douglass.htm
Frederick Douglass, 1857
- - - - - -> More political discussion continues at
http://www.politicsusaweb.com/
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