thedrifter
03-26-09, 07:23 AM
Marine’s Family Asks for Right to Sue Government for Medical Malpractice
Posted Wednesday, March 25, 2009 :: Staff infoZine
By Alex Hering - Marine Sgt. Carmelo Rodriguez fought in Iraq but lost his life fighting a different war.
Washington, D.C. - infoZine - Scripps Howard Foundation Wire - Cancer that went undiagnosed for nearly nine years killed the 29-year-old Rodriguez, of Ellenville, N.Y., said his sister, who testified about her family's story Tuesday before the House Judiciary Subcommittee on Commercial and Administrative Law.
"Carmelo wanted his story to be heard, even if his life couldn't be saved. He wanted to ensure that what happened to him would not happen to another service member," Ivette Rodriguez said.
With help from Rep. Maurice Hinchey, D-N.Y., Rodriguez is asking for a law to reverse a 59-year-old Supreme Court decision and give her family and other members of the military the ability to sue the government for medical malpractice.
When Sgt. Rodriguez enlisted in the Marines in 1997, he underwent a medical examination that revealed melanoma on his left buttock. The doctor failed to tell Rodriguez or refer him to a specialist, according to his sister, who was joined by her husband, two children and other family members at the hearing. Her brother's young son did not attend.
After nine years and two military medical evaluations of what the military doctors told Sgt. Rodriguez was a wart, he went to a civilian doctor. It was then Rodriguez - an actor, athlete and artist - was diagnosed with stage 3 malignant melanoma.
Ivette Rodriguez said that - after three surgeries, radiation and chemotherapy - the cancer that originated as a "blotch," spread to the rest of her brother's body. He died Nov. 16, 2007, weighing less than 80 pounds, leaving behind his 7-year-old son.
Under current law, the Rodriguez family can't hold the military doctors accountable for their actions, including one 2006 visit in which the "birthmark" was bleeding and producing puss.
The 1950 U.S. Supreme Court ruling Rodriguez wants overturned, Feres vs. United States, prohibits service members like Sgt. Rodriguez from holding the military accountable for medical malpractice.
Before his death, the family asked Hinchey for help.
Hinchey introduced the Carmelo Rodriguez Military Medical Accountability Act of 2009 to reverse the ruling and give families and service members the ability to hold the military accountable for "negligent" medical care.
"In the opinion of the subcommittee, how could it be possible that, of all Americans, members of the military and their families are left no recourse in the face of such medical negligence?" Hinchey asked the committee.
He said that, because of the shortfall of doctors, nurses and other health care staff, it is the military's responsibility to have doctors who are trained in non-combat injuries, such as skin cancer. Hinchey referred to 10 military families who shared in the same fruitless battle as the Rodriguez family.
"Christine Lemp, whose husband, James, died after receiving questionable medical care for a stomach virus in Missouri, deserves to know why there's no recourse to holding the military accountable," he said.
Family members who receive medical care from the military but are not service members may sue under the Federal Tort Claims Act.
President of the National Institute of Military Justice Eugene R. Fidelle said the Feres doctrine has prevented countless victims of medical malpractice from suing the government. He has advised many of them.
"Not infrequently, these seem potentially meritorious - and not infrequently the facts are disturbing," he said. "Yet I must advise these callers that they are wasting their time because of the decision by the Supreme Court."
Stephen A. Saltzburg, a member of the House of Delegates of the American Bar Association, said the ABA proposed a "modest amendment" in 1987 to allow service members to sue for malpractice in non-combat related injuries.
That was the same year the Supreme Court upheld the Feres doctrine in a case involving a Coast Guard helicopter pilot whose widow blamed the Federal Aviation Administration for his fatal crash.
Saltzburg said the four justices who dissented in that case - Antonin Scalia, William Brennan, Thurgood Marshall and John Paul Stevens - said that, of the rationales for the doctrine, "none had merit."
"The four dissenters argued the Feres was a ‘clearly a wrong decision,' and noted the ‘unfairness and the irrationality that the decision had bred,'" Saltzburg said.
Near the end of the hearing, Ivette Rodriguez reminded the committee that the person who misdiagnosed her brother continues to work.
"I hear a lot of suing and guilt and blame," Rodriguez said. "That's not why my family is here. We are here for the military to be accountable. Every day, my brother is not here with us."
Rep. Steve King, R-Iowa, asked what she wanted.
"Just correcting it," she said. "That's what he wanted. He wanted this."
Ellie
Posted Wednesday, March 25, 2009 :: Staff infoZine
By Alex Hering - Marine Sgt. Carmelo Rodriguez fought in Iraq but lost his life fighting a different war.
Washington, D.C. - infoZine - Scripps Howard Foundation Wire - Cancer that went undiagnosed for nearly nine years killed the 29-year-old Rodriguez, of Ellenville, N.Y., said his sister, who testified about her family's story Tuesday before the House Judiciary Subcommittee on Commercial and Administrative Law.
"Carmelo wanted his story to be heard, even if his life couldn't be saved. He wanted to ensure that what happened to him would not happen to another service member," Ivette Rodriguez said.
With help from Rep. Maurice Hinchey, D-N.Y., Rodriguez is asking for a law to reverse a 59-year-old Supreme Court decision and give her family and other members of the military the ability to sue the government for medical malpractice.
When Sgt. Rodriguez enlisted in the Marines in 1997, he underwent a medical examination that revealed melanoma on his left buttock. The doctor failed to tell Rodriguez or refer him to a specialist, according to his sister, who was joined by her husband, two children and other family members at the hearing. Her brother's young son did not attend.
After nine years and two military medical evaluations of what the military doctors told Sgt. Rodriguez was a wart, he went to a civilian doctor. It was then Rodriguez - an actor, athlete and artist - was diagnosed with stage 3 malignant melanoma.
Ivette Rodriguez said that - after three surgeries, radiation and chemotherapy - the cancer that originated as a "blotch," spread to the rest of her brother's body. He died Nov. 16, 2007, weighing less than 80 pounds, leaving behind his 7-year-old son.
Under current law, the Rodriguez family can't hold the military doctors accountable for their actions, including one 2006 visit in which the "birthmark" was bleeding and producing puss.
The 1950 U.S. Supreme Court ruling Rodriguez wants overturned, Feres vs. United States, prohibits service members like Sgt. Rodriguez from holding the military accountable for medical malpractice.
Before his death, the family asked Hinchey for help.
Hinchey introduced the Carmelo Rodriguez Military Medical Accountability Act of 2009 to reverse the ruling and give families and service members the ability to hold the military accountable for "negligent" medical care.
"In the opinion of the subcommittee, how could it be possible that, of all Americans, members of the military and their families are left no recourse in the face of such medical negligence?" Hinchey asked the committee.
He said that, because of the shortfall of doctors, nurses and other health care staff, it is the military's responsibility to have doctors who are trained in non-combat injuries, such as skin cancer. Hinchey referred to 10 military families who shared in the same fruitless battle as the Rodriguez family.
"Christine Lemp, whose husband, James, died after receiving questionable medical care for a stomach virus in Missouri, deserves to know why there's no recourse to holding the military accountable," he said.
Family members who receive medical care from the military but are not service members may sue under the Federal Tort Claims Act.
President of the National Institute of Military Justice Eugene R. Fidelle said the Feres doctrine has prevented countless victims of medical malpractice from suing the government. He has advised many of them.
"Not infrequently, these seem potentially meritorious - and not infrequently the facts are disturbing," he said. "Yet I must advise these callers that they are wasting their time because of the decision by the Supreme Court."
Stephen A. Saltzburg, a member of the House of Delegates of the American Bar Association, said the ABA proposed a "modest amendment" in 1987 to allow service members to sue for malpractice in non-combat related injuries.
That was the same year the Supreme Court upheld the Feres doctrine in a case involving a Coast Guard helicopter pilot whose widow blamed the Federal Aviation Administration for his fatal crash.
Saltzburg said the four justices who dissented in that case - Antonin Scalia, William Brennan, Thurgood Marshall and John Paul Stevens - said that, of the rationales for the doctrine, "none had merit."
"The four dissenters argued the Feres was a ‘clearly a wrong decision,' and noted the ‘unfairness and the irrationality that the decision had bred,'" Saltzburg said.
Near the end of the hearing, Ivette Rodriguez reminded the committee that the person who misdiagnosed her brother continues to work.
"I hear a lot of suing and guilt and blame," Rodriguez said. "That's not why my family is here. We are here for the military to be accountable. Every day, my brother is not here with us."
Rep. Steve King, R-Iowa, asked what she wanted.
"Just correcting it," she said. "That's what he wanted. He wanted this."
Ellie