We’ve learned a lot in recent years about how the impact of medical mistakes and malpractice can be somewhat less devastating when the parties who commit them cop to the bad outcome. But like so many other medical providers,the U.S. military, apparently, has decided such acknowledgment is not its mission.
In a story called “Service Members Are Left in the Dark on Health Errors,” the New York Times illuminated how 1.3 million active-duty service members are particularly vulnerable to the ravages of medical error because they are ” virtually powerless to hold accountable the health care system that treats them.”
When members of the service are ill or injured, unless they get specific approval, they must get care through the military system, even if they believe that care is substandard or dangerous. They’re doubly jeopardized because if that military care causes harm or death, they and their survivors have no legal right to challenge it or file malpractice suits.
“Only 18 months ago, “The Times reported, “did the Pentagon explicitly allow them to file complaints about their treatment, although some had done so earlier. But even then they are barred from learning the results of any inquiry. Under federal law, investigations at military hospitals and clinics are confidential, in part to keep the findings from the roughly 2 million civilian patients they treat per year – spouses and children of service members, retirees and others – who can and do file malpractice claims.”
Nowhere is this loss of rights more poignant than in the story of soldier T.J. Moore, a 19-year-old undergoing basic training. After a gentle 1.5-mile run, Moore collapsed and was rushed to a hospital. He died, and his squadron leader, Lt. Col. Chad Gallagher cried when he told his mother, Anita Holmes, ‘I didn’t do enough to protect T. J.’ ”
She’s still wondering what he meant.
Experts who reviewed Moore’s medical records found a serious medical error at the Air Force base clinic: Moore had been allowed to make the run even though doctors had stopped him from training a few days earlier when he failed the same test. It turns out he had a genetic condition that can result in sudden death during physical exertion.
Not that the Air Force said anything – its report to Holmes, after months of inquiries, was that the military had followed proper protocol, that no mistakes were made and nobody was at fault.
“I raised T. J. as a single mother on little income for 19 years, and kept him safe,” Holmes told The Times. “They had him for nine days and sent him home to me in a box.” She said the report was “garbage.”
Her story is not unusual.
The Times interviewed active-duty patients, relatives and military workers who disclosed that it was next to impossible to get anything but limp letters of condolence or denials of substandard care from the military, never mind anything close to useful information. Sometimes, harmed patients and families got nothing but silence.
“There is just no transparency,” a retired military intelligence officer told The Times. “You can’t sue. You have no insight into the process. As active duty, we just don’t have much recourse.”
The newspaper learned that until 2009, practitioners known to have provided poor care to active-duty patients usually were not reported to a national database that tracks problem medical workers, only to an internal database. Today, such clinicians, typically doctors, usually are reported only if the service member is disabled or dies. That’s a higher standard than in cases involving civilians.
Where’s the accountability in this system of 54 hospitals and hundreds of clinics that, as the paper has reported, often fails to conduct safety investigations that the Defense Department mandates when patients suffer serious harm or die?
Dr. Jonathan Woodson, the Pentagon’s top health official, told The Times that despite the federal confidentiality, the military requires its medical staff and facilities to be open and accountable to all patients.
Then why does the military culture continue to make it so hard for service members to complain? And why, when they do, are their concerns ignored?
A big part of the problem is the 1950s-era immunity established by a Supreme Court decision called Feres, which the Court based on the idea that allowing military members to sue for malpractice or other negligently caused injuries could be bad for military morale. Congress could reverse the doctrine easily but has never done so, partly out of the misguided hostility to legal accountability that some members of Congress bear toward all types of lawsuits by injured people.
So until Congress acts, there is no legal accountability for any service member injured at a military hospital, no matter how egregious the fault or how bad the harm.
Before she retired, the intelligence officer had seen an Air Force physician assistant three times for breast pain and other symptoms she feared might be cancer. Not only were her fears dismissed as irrational, she said, she was threatened with a note in her file that could have damaged her career if she continued to seek treatment.
Nine months later, she was allowed to switch her care to a Navy hospital doctor who discovered Stage 2 invasive breast cancer. Her persistence, she was told, had saved her life, after a double mastectomy and chemotherapy.
After she recovered, she filed a complaint against the physician assistant in an effort to protect other patients. The chief of medical services denied that she had been mistreated. The physician assistant was promoted.
Even a lieutenant colonel whose job involved assessing military hospitals fell victim to the military’s shocking lack of compassion, responsibility and legal redress. He nearly died from a surgical infection that required three additional operations and months of follow-up care. He asked whether the mandatory safety investigation had been conducted, but no one from the hospital staff responded.
He retired for medical reasons in 2013. “I had no faith whatsoever in what I was doing anymore,” he told The Times.
The federal confidentiality law is supposed to encourage medical workers to speak up about mistakes without fear of provoking malpractice suits that are the right of civilians harmed by medical error. The evidence speaks to the misguided nature of that approach.
We’ve written about the cleansing effect of admission and apology, and The Times recalled how, in 2001, the University of Michigan Health System decided that officials would inform patients and apologize on discovering a serious preventable error or lapse in care.
“Administrators say physicians and nurses have grown more open about mistakes – not less – even though, unlike their counterparts in military hospitals, they can be individually sued for malpractice,” the paper said. “The hospital has followed its disclosures by negotiating compensation, resulting in lower malpractice costs.”
It’s time not only for the military to step up to its medical responsibility, but to facilitate the legal rights of the people whose very jobs protect them for everyone else.