Military Medicine

December 15, 2019

Active duty military personnel near a small win on medical malpractice claims

The U.S. government is on the brink of giving active duty military personnel half a legal loaf when it comes to a fundamental constitutional right — their chance to seek justice in the civil courts if they suffer harms while receiving medical services in noncombat situations.

If the U.S. Senate approves, as expected, a House-passed measure, and it is signed by the president, as he has said he will, active military members soon may be able to make medical malpractice claims, as they couldn’t before. But the disputes won’t be decided in the civil justice system. Instead, they will stay under military control.

That’s far less than ideal. To understand why, and how this compromise got struck, it’s necessary to dive a little into federal law.

August 5, 2019

Defense bill may offer active service personnel a way to win back key rights

by Patrick A. Malone

Although members of Congress have fled the nation’s capital for their annual August recess, there’s guarded optimism that lawmakers may be open to reversing a seven-decades-old U.S. Supreme Court ruling that bars active duty military personnel from their constitutional right to pursue in the civil justice system claims that they have suffered harms while seeking medical services.

Advocates of this change saw cause for optimism that President Trump met briefly in July in North Carolina and encouraged Army Sgt. 1st Class Richard Stayskal, a terminally ill Green Beret who has become the focus of efforts to fixing the Federal Tort Claims Act (FTCA), Bloomberg news service reported. Jackie Speier, a California Democratic congresswoman, introduced a bill named after Stayskal and that would allow troops to file medical malpractice suits in federal court, because, as Bloomberg said:

“Stayskal went to Womack Army Medical Center at Fort Bragg in 2017 after feeling suffocated and coughing up blood, but the hospital misdiagnosed him with pneumonia during two visits, according to his congressional testimony before the House Armed Services Committee. By the time he saw a civilian doctor six months later, the lung tumor causing the problems had doubled in size. The tumor had showed up in X-rays done before he went to dive training, but nobody told Stayskal or diagnosed him.”

May 27, 2019

High court leaves it to Congress to restore service members’ basic rights

by Patrick A. Malone

The U.S. Supreme Court has left it up to Congress to decide if service members may pursue in the civil justice system claims that they have suffered harms while seeking medical services, a fundamental civil right now denied to military personnel.

Justices Clarence Thomas and Ruth Bader Ginsburg — who rarely agree on much — both wanted but were unsuccessful in getting their high court colleagues to revisit an inequitable, 69-year-old Supreme Court ruling involving the Federal Tort Claims Act. That act governs who can bring a claim for negligence at a military or other government health care facility.

Active duty military personnel cannot bring a medical negligence claim for care at a military facility. This is called the “Feres doctrine,” after the Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950). Under the Feres doctrine, members of the United States armed forces are barred from making a claim against the United States for personal injury or death arising “incident to service.” Military medical treatment received by a service member, while on active duty, has been held by the courts to be “incident to service,” and, thus not actionable, even if that treatment was for a purely elective procedure, and even if the procedure was performed negligently.

May 6, 2019

Bill takes aim at injustice for service personnel hurt by military medical care

by Patrick A. Malone

Members of Congress have taken steps aimed at allowing service members to pursue actions in the civil justice system when they suffer harms while seeking medical services, a fundamental civil right now denied to military personnel.

Members of the U.S. House Armed Services Committee heard powerful testimony from a Green Beret, an airman, and a judge advocate general about the need for a bill introduced by Rep. Jackie Speier (D.-Calif.) — a measure that has won bipartisan backing — to correct problems caused by a 69-year-old U.S. Supreme Court ruling in a case involving the Federal Tort Claims Act. That act governs who can bring a claim for negligence at a military or other government health care facility.

Active duty military personnel cannot bring a medical negligence claim for care at a military facility. This is called the “Feres doctrine,” after the U.S. Supreme Court decision, Feres v. United States, 340 U.S. 135 (1950). Under the Feres doctrine, members of the United States armed forces are barred from making a claim against the United States for personal injury or death arising “incident to service.” Military medical treatment received by a service member, while on active duty, has been held by the courts to be “incident to service,” and, thus not actionable, even if that treatment was for a purely elective procedure, and even if the procedure was performed negligently.

October 15, 2018

Will Supreme Court reconsider government’s immunity from medical malpractice suits by active-duty military?

by Patrick A. Malone

Although Uncle Sam makes a special vow to provide medical care for those who fight for this nation, he also enjoys special legal shields from lawsuits from them if anything goes wrong with medical services they’re provided. But recent news reports show how past and present service personnel not only suffer shabby medical care but also “grossly unfair” situations when pursuing malpractice claims — and why lawmakers and courts may need to step in to provide fairer remedies.

Kaiser Health News (KHN) and the ABC-TV news affiliate in Los Angeles both deserve credit for spotlighting tough cases involving service personnel and medical malpractice, particularly the Federal Tort Claims Act and the Feres doctrine, a 68-year-old Supreme Court case that bars active-duty military members from suing the federal government for their own injuries.

Walter Daniel, a former Coast Guard officer, has petitioned the Supreme Court to “amend the 1950 [Feres] ruling, creating an exception that would allow service members to sue for medical malpractice the same way civilians can,” KHN reported, noting this would affect patients in a military health system “with 54 hospitals and 377 medical clinics, serv[ing] about 9.4 million beneficiaries, including nearly 1.4 million active-duty members.”

August 12, 2018

Say what? Mar-a-Lago trio acting as ‘shadow rulers’ of Trump’s VA

by Patrick A. Malone

So, see, Ike, Marc, and Bruce may be pretty swell guys. They’ve done well in business: Ike in comic books and entertainment, Marc in the law and consulting on white collar crime, and Bruce as a medical concierge who gets affluent patients in to see big name doctors.

But this odd trio —Ike Perlmutter, Bruce Moskowitz and Marc Sherman — never served in the U.S. military. They’re certainly not veterans. Perlmutter and Sherman have zero experience in health care. And Moskowitz, while a doctor, is a respected primary care practitioner — not someone known for his direct experience in running big, complex operations.

They also, however, happen to be FOT — Friends of (President) Trump. They pay him to belong to his Mar-a-Lago country club. And, apparently at his request and with the assistance of powerful partisans and the acquiescence of sheepish bureaucrats, Perlmutter, Moskowitz, and Sherman have become “shadow rulers” of the U.S. Department of Veterans Affairs.

June 8, 2018

Is there a doctor aboard? While flying this summer, you may hope so

by Patrick A. Malone

With tens of millions hopping on jets to get to summer vacation destinations, it’s worth noting that medical emergencies aloft aren’t as rare as many travelers might imagine — and it may be beneficial if a doctor happens to be aboard when the need arises.

The nation’s top doctor, U.S. Surgeon General Jerome Adams, of course, may have spotlighted sky-high medical care, when he answered flight attendants’ emergency page to all those aboard a Delta flight from Fort Lauderdale to Atlanta. Details are a bit sketchy. But a passenger on the early May trip apparently passed out, and worried crew needed medical assistance and an evaluation of potential next steps.

Adams said he was pleased to step up and assist the crew as the flight, which was on the tarmac, returned to the airport gate, where a crew member took the ailing passenger off for care, while the Delta plane resumed its planned trip.

March 15, 2018

Veterans deserve better than more scandals at VA hospitals in DC, nationwide

by Patrick A. Malone

More than 100,000 patients in the area surrounding the nation’s capital rely on a flagship hospital for what should be blue-chip care. They deserve better than the continuing scandal that envelops not only the VA Medical Center in Washington, D.C., but also its parent Department of Veterans Affairs.

Investigators have excoriated the VA and its leader for failing to address problems in the agency’s medical facilities nationwide but especially in Washington, because officials, as USA Today reported, “had been informed of the issues repeatedly since 2013.”

The news organization added that investigators concluded “a culture of complacency and a sense of futility pervaded [VA] offices at multiple levels,” such that, “In interviews, leaders frequently abrogated individual responsibility and deflected blame to others. Despite the many warnings and ongoing indicators of serious problems, leaders failed to engage in meaningful interventions of effective remediation.”

February 25, 2018

To treat gun violence as a health crisis, start with existing myth-busting data

by Patrick A. Malone

When partisans refuse to deal with deadly gun violence as a public health crisis and to support and fund rigorous research to guide law-making, it’s unsurprising that extreme and outlandish notions rush to occupy a noxious space in public discussions — a condition one think tank has labeled “truth decay.”

Let’s not stoop, though, to useless bickering about our respective “thoughts” on guns, but rather stick to facts and credible evidence to figure how the nation can better prevent mass shootings.

Exhibit A: A South Florida radiologist’s essay on the lethal results of wounds inflicted by high-powered battlefield weapons like the AR-15 used in the recent mass shooting at a Florida high school.

February 21, 2018

FDA approves a blood test to diagnose severity of traumatic brain injury

by Patrick A. Malone

Federal officials offer a glimmer of hope in caring for head injuries, especially the sharp, repeated, and often damaging blows that afflict athletes and which millions worldwide are witnessing, yes, as part of the Winter Olympic Games.

The federal Food and Drug Administration has announced that it has approved a long-awaited blood test that can help doctors determine the severity of traumatic brain injuries. This test will provide a cheaper, easier, more convenient, and likely faster way to handle the rising health bane of concussions, rather than relying on computed tomography or CT scans using big machines and a form of X-rays.

As the New York Times reported: