thedrifter
06-21-08, 08:00 AM
Law prevents troops’ malpractice lawsuits
Legislator pushing bill to overturn Feres Doctrine
By Leo Shane III, Stars and Stripes
Mideast edition, Friday, June 20, 2007
WASHINGTON — Military doctors identified potentially cancerous tumors on Sgt. Carmelo Rodriguez’s back in 1997, and again noted it during numerous physicals over the next eight years. But they never told him about it.
He died of skin cancer in January 2007.
His family said if Rodriguez received that kind of treatment from a civilian doctor, they’d have already won a civil suit against the hospital and forced the physicians out of practice.
"This was negligence," said his sister, Yvette Rodriguez. "It was clear malpractice, and his death could have been prevented."
But, under federal law, they can’t sue the Marine Corps or doctors involved. A Supreme Court decision known as the Feres Doctrine blocks any servicemember from suing for damages related to injuries, mistakes or negligence that occurs while they’re on active duty.
Rep. Maurice Hinchey, D-N.Y., wants to change that. Last month, he introduced new legislation that would permit medical malpractice claims against the military, specifically citing Rodriguez’s case.
"Joining the military should not mean that one has to give up his or her right to hold medical providers accountable," he said in a statement.
Hinchey’s attempt isn’t the first to overturn the legal roadblock. A pair of similar bills in Congress have failed in the last three legislative sessions, and legal experts note that multiple other legislative challenges since the court ruling in 1950 have all fallen short.
Rodriguez’s family said they hope to see it become law but not because of the potential cash reward that comes from such civil suits.
"We just want people to be held accountable," Yvette said. "My brother loved the Marine Corps. This isn’t about money. He wanted to make sure there was better training, better health care so this wouldn’t happen to others."
Case history
The Feres Doctrine stems from the 1947 death of Lt. Rudolph Feres, an active-duty soldier killed in a barracks fire at Camp Pine, N.Y. — now Fort Drum. His widow sued the Army for negligence, claiming the facility had a defective heating plant and substandard fire safety controls.
But the Supreme Court three years later ruled that under the law a servicemember performing military duties did not fall under the Federal Tort Claims Act, which allows certain civil lawsuits against the government or government employees.
"We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving," the ruling stated.
In the absence of a new law outlining from Congress exceptions, that principle has been upheld by the courts numerous times in the past 58 years.
In 1994 a Massachusetts guardsmen sued for civil damages after he was sodomized in a unit hazing incident, but the Supreme Court threw out the suit because it happened during a training week and was therefore covered as official federal duty.
In 2001 Marine recruit Justin Haase died after military doctors treated his bacterial meningitis with penicillin, despite his well-documented allergy to the drug. A U.S. District Court judge threw out his family’s civil suit, calling the decision unfair but clear under the law.
Barbara Cragnotti, president of Veterans Equal Rights Protection Advocacy, calls the doctrine a travesty for all servicemembers.
"People are dying because people in the military are making mistakes," she said. "If they could be held accountable, the abuses would stop. But they can’t."
Her own son, retired sailor Joseph, suffered lung and neurological problems stemming from what the family sees as medication mistakes by Navy doctors. Her group has been pushing to overturn or trim down the Feres Doctrine since 2000.
Command lawsuits?
But Paul Figley, former Torts Branch Deputy Director at the Department of Justice, said he thinks lawmakers have been reluctant to challenge the legal precedent because of the unique nature of the military.
"If a recruit is told by his drill sergeant to take a 40-mile hike … he can’t file a suit to challenge that," he said. "If a soldier loses his hand in combat, he can’t sue to challenge his commander’s decisions.
"But if you let a person who lost his hand because of military malpractice sue, you’re giving them a special, extra legal remedy that other (troops) don’t have. There already is a compensation system for such injuries. It’s not as much as you might get in a tort, but it is compensation."
Figley also noted that in most states employees generally can’t sue their bosses for on-the-job accidents. With active-duty servicemembers, many of their daily activities fall under that on-the-job status.
Still, National Institute of Military Justice President Eugene Fidell said he has been "very frustrated" with how the doctrine has been applied and expanded to more and more aspects of military life.
Servicemembers’ spouses treated at military hospitals can sue for malpractice, he notes, but active-duty troops suffering those same mistakes have no legal remedy.
Cragnotti said she’s pessimistic about the chances of Hinchey’s bill becoming law this year. The legislative calendar is shorter because of the fall elections, and support on the Senate side of Congress is still lacking.
"But this is going to get through someday," she said. "I think the public just needs to be made aware of what’s going on, and then we’ll be able to fix it."
Ellie
Legislator pushing bill to overturn Feres Doctrine
By Leo Shane III, Stars and Stripes
Mideast edition, Friday, June 20, 2007
WASHINGTON — Military doctors identified potentially cancerous tumors on Sgt. Carmelo Rodriguez’s back in 1997, and again noted it during numerous physicals over the next eight years. But they never told him about it.
He died of skin cancer in January 2007.
His family said if Rodriguez received that kind of treatment from a civilian doctor, they’d have already won a civil suit against the hospital and forced the physicians out of practice.
"This was negligence," said his sister, Yvette Rodriguez. "It was clear malpractice, and his death could have been prevented."
But, under federal law, they can’t sue the Marine Corps or doctors involved. A Supreme Court decision known as the Feres Doctrine blocks any servicemember from suing for damages related to injuries, mistakes or negligence that occurs while they’re on active duty.
Rep. Maurice Hinchey, D-N.Y., wants to change that. Last month, he introduced new legislation that would permit medical malpractice claims against the military, specifically citing Rodriguez’s case.
"Joining the military should not mean that one has to give up his or her right to hold medical providers accountable," he said in a statement.
Hinchey’s attempt isn’t the first to overturn the legal roadblock. A pair of similar bills in Congress have failed in the last three legislative sessions, and legal experts note that multiple other legislative challenges since the court ruling in 1950 have all fallen short.
Rodriguez’s family said they hope to see it become law but not because of the potential cash reward that comes from such civil suits.
"We just want people to be held accountable," Yvette said. "My brother loved the Marine Corps. This isn’t about money. He wanted to make sure there was better training, better health care so this wouldn’t happen to others."
Case history
The Feres Doctrine stems from the 1947 death of Lt. Rudolph Feres, an active-duty soldier killed in a barracks fire at Camp Pine, N.Y. — now Fort Drum. His widow sued the Army for negligence, claiming the facility had a defective heating plant and substandard fire safety controls.
But the Supreme Court three years later ruled that under the law a servicemember performing military duties did not fall under the Federal Tort Claims Act, which allows certain civil lawsuits against the government or government employees.
"We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving," the ruling stated.
In the absence of a new law outlining from Congress exceptions, that principle has been upheld by the courts numerous times in the past 58 years.
In 1994 a Massachusetts guardsmen sued for civil damages after he was sodomized in a unit hazing incident, but the Supreme Court threw out the suit because it happened during a training week and was therefore covered as official federal duty.
In 2001 Marine recruit Justin Haase died after military doctors treated his bacterial meningitis with penicillin, despite his well-documented allergy to the drug. A U.S. District Court judge threw out his family’s civil suit, calling the decision unfair but clear under the law.
Barbara Cragnotti, president of Veterans Equal Rights Protection Advocacy, calls the doctrine a travesty for all servicemembers.
"People are dying because people in the military are making mistakes," she said. "If they could be held accountable, the abuses would stop. But they can’t."
Her own son, retired sailor Joseph, suffered lung and neurological problems stemming from what the family sees as medication mistakes by Navy doctors. Her group has been pushing to overturn or trim down the Feres Doctrine since 2000.
Command lawsuits?
But Paul Figley, former Torts Branch Deputy Director at the Department of Justice, said he thinks lawmakers have been reluctant to challenge the legal precedent because of the unique nature of the military.
"If a recruit is told by his drill sergeant to take a 40-mile hike … he can’t file a suit to challenge that," he said. "If a soldier loses his hand in combat, he can’t sue to challenge his commander’s decisions.
"But if you let a person who lost his hand because of military malpractice sue, you’re giving them a special, extra legal remedy that other (troops) don’t have. There already is a compensation system for such injuries. It’s not as much as you might get in a tort, but it is compensation."
Figley also noted that in most states employees generally can’t sue their bosses for on-the-job accidents. With active-duty servicemembers, many of their daily activities fall under that on-the-job status.
Still, National Institute of Military Justice President Eugene Fidell said he has been "very frustrated" with how the doctrine has been applied and expanded to more and more aspects of military life.
Servicemembers’ spouses treated at military hospitals can sue for malpractice, he notes, but active-duty troops suffering those same mistakes have no legal remedy.
Cragnotti said she’s pessimistic about the chances of Hinchey’s bill becoming law this year. The legislative calendar is shorter because of the fall elections, and support on the Senate side of Congress is still lacking.
"But this is going to get through someday," she said. "I think the public just needs to be made aware of what’s going on, and then we’ll be able to fix it."
Ellie