House committee moves to allow suits for military medical malpractice

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Congress moved Wednesday toward allowing soldiers to sue military medical personnel for medical malpractice, except in cases related to combat.

The House Judiciary Committee approved the “Carmelo Rodriguez Military Medical Accountability Act of 2009” by a vote of 14-12. The bill, sponsored by New York Democratic Rep. Maurice Hinchey, is named after Marine Corps Sgt. Carmelo Rodriguez III, who was Hinchey’s constituent before he died in 2007. A Senate version of the bill is sponsored by New York Democratic Senator Charles Schumer.

At Rodriguez’s entrance medical exam when he joined the Marines in 1997, military doctors identified a blotch on his buttocks as melanoma, but never told him of the diagnosis, nor treated him or recommended treatment, according to his medical report. The cancer spread over the next eight years. Rodriguez had it re-examined in Iraq in 2005 and was told it was just a wart and that he could wait until he returned to the U.S. for treatment. Over the next 18 months, Rodriguez disintegrated to less than 80 pounds. Minutes after meeting a CBS News crew, Rodriguez died holding the hand of his seven-year-old son.

Hinchey’s legislation would overturn a controversial 1950 Supreme Court ruling that bars service members from making claims against or suing the military for injuries suffered “incident to service.” The Court’s interpretation of a 1946 law, known as the Federal Tort Claims Act, which originally only exempted combat-related injuries, broadened the exemption. The exemption for service members is known as the Feres Doctrine, after the 1950 case. It was narrowly reaffirmed in a 5-4 Supreme Court ruling in 1987, though current Justices John Paul Stevens and Antonin Scalia dissented. Scalia wrote, in the dissent, “Feres was wrongly decided, and heartily deserves the ‘widespread, almost universal criticism’ it has received.”

Opponents of the legislation say it would drive up the costs of military health care and could create disparities between those claiming malpractice while fighting in a foreign land and those claiming malpractice who are serving stateside, and thus able to access courts.

“This could demean injuries suffered in combat by providing the soldier injured on the battlefield with administrative compensation while the soldier injured in a military hospital could seek a multi-million dollar damage award in Federal court,” said Arizona Republican Rep. Trent Franks in a hearing in March on the bill.

Supporters say it would improve health care by reducing risky behavior and that the disparity in access to courts between civilians and the armed services is a bigger problem.

In February, a federal judge in California “reluctantly” ruled against Alexis Witt, the wife of the late Air Force Staff Sgt. Dean Witt, because he was bound by Feres, according to the judge’s five-page ruling. While recovering following surgery at David Grant Medical Center at Travis Air Force Base near Sacramento, Calif., Dean Witt stopped breathing and student nurses fumbled in efforts to unblock his airway, according to Witt’s lawsuit. The lack of oxygen caused severe brain damage that left him in a permanent vegetative state. He died after being removed from life support in 2004.

The allegations in the Witt case “are so egregious and the liability of the Defendant seems so clear that this Court did give serious consideration to Plaintiff’s argument that this Court should allow this claim in spite of Feres,” wrote District Judge John A. Mendez. Alexis Witt has taken the case to the Ninth Circuit Court of Appeals.

Barbara Cragnotti, president of Veterans Equal Rights Protection Advocacy, a group that advocates overturning Feres, said she was hopes Hinchey’s legislation is a step closer to achieving its aim of enhancing accountability in military medicine.

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