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

Scotus-300x167Although 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.

Daniel’s petition is part of his four-year quest for answers and justice in the death of his wife, Navy Lt. Rebekah “Moanie” Daniel. She was a healthy 33-year-old woman and a labor and delivery nurse herself. Shortly after delivery in her low-risk pregnancy, however, she bled to death at the Naval Hospital Bremerton in Washington State.

The Navy conducted no review of Moanie’s death, though later “a Navy autopsy concluded [she] died of ‘natural’ causes possibly linked to an amniotic fluid embolism, a rare, hard-to-prove complication of childbirth,” KHN reported.

Her husband, who is now raising their four-year-old daughter alone, disagrees with that diagnosis, saying Moanie died due to botched care that failed to stop her bleeding. He sued the Navy for medical malpractice, with court documents showing its “doctors failed to perform vital tests, to employ an obstetrical balloon — a standard device used to halt postpartum hemorrhage — and to start massive blood transfusions until too late.”

Courts have rejected the suit, saying, under the Feres doctrine, “active-duty members of the military cannot sue under the Federal Tort Claims Act for harm ‘incident to service,’ ” KHN reported.

Justices have supported Feres, citing the military’s capacities to deal on its own, separately from the civil justice system, to provide, “comprehensive relief for injuries or death of service members and their families.” The high court also has accepted arguments that barring lawsuits like Daniel’s help to preserve military discipline.

But Richard Custin, a clinical professor of business law and ethics at the University of San Diego, debunks these contentions, telling KHN that Uncle Sam’s legal protections here are: “just grossly unfair. Childbirth is not a military activity. It’s clearly not ‘incident to service.’”

It will be a long-shot for Daniel to get the high court to take up his petition, considering that justices get inundated with 7,000-8,000 similar such appeals and hear just 80 or so cases per term, KHN reported.

The Pentagon told the nonprofit, nonpartisan news service that it would not discuss the Feres doctrine in an interview, but:

A … spokeswoman said that overturning the rule would ‘destroy the premise’ of no-fault workers’ compensation available in the military and elsewhere. It would also ‘create an unsustainable inequity’ between military members allowed to sue and others, such as those injured in combat, who couldn’t. And, rather than improving military health care, overturning Feres would ‘compromise its effectiveness,’ the spokeswoman said, noting: ‘No medical system is perfect.’

Indeed, KHN reported that:

Military hospitals reported 545 so-called sentinel events — medical omissions or errors — from 2014 to 2017 … In 2014, Naval Hospital Bremerton reported at least one case of postpartum hemorrhage or hysterectomy. But such reports aren’t public, so Daniel doesn’t know whether his wife’s case was included in those records. A 2014 review of military health care found the rate of postpartum hemorrhage was consistently higher in military hospitals than the national average.

Readers might want to check our law firm’s website for more details on who can and cannot sue over malpractice events at military hospitals and clinics.  For example, Mr. Daniel’s case is blocked, for now, by the fact that his deceased wife was active-duty military at the time she gave birth. If she had been treated in the same hospital by the same doctors and suffered the same tragic outcome, but hadn’t been active duty, her widower’s case would not have been barred by Feres.  That doctrine only applies to injuries of active-duty personnel themselves.  It’s still unfair, but that’s an important distinction to know.

Meantime, in Los Angeles, KABC-TV has reported on the medical-legal nightmares confronting Brian Tally, a Marine veteran, husband, father of four, and, until a few years ago, a successful small business owner in Southern California. He has battled with Veterans Affairs over his treatment for extreme back pain, which he asserts doctors failed to diagnose and treat correctly not once but three times.

His case worsened so much that his wife insisted he seek medical services outside VA, where specialists found he suffered an aggressive staph infection that was eating away his spine. He and his non-VA doctors say delayed care resulted in “severe damage to [his] nerves [leading] to erectile dysfunction, urinary incontinence and bowel issues — along with herniated discs in his neck, causing constant pain.”

Tally, who speaks well of the VA, nonetheless, decided to sue the agency. Like Daniel, he fast found himself mired in legal complications related to the Federal Tort Claims Act. His case slogged through the bureaucracy, with VA lawyers, he said, encouraging him that prospects for appropriate remedies seemed favorable.

But he got hit with another twist: The VA sought to toss his case because, after eight months, the agency told him that the doctor central to his case wasn’t on staff but was an independent contractor. Under federal law, the agency asserted it could not be held liable for actions of such a non-staff member, and Tally needed to pursue claims against the doctor in the civil justice system.

He faced yet another legal mess there, though: Because the VA had taken so long to act on his case and to inform him of the doctor’s status, Tally could not file a civil claim because he had passed California deadlines to do so.

With the assistance of a Virginia-based medical malpractice attorney and Virginia’s attorney general, VA eventually offered him a small settlement — with the agency saying it was avoiding litigation and not conceding any wrong.

In my practice, I see not only the harms that patients suffer while seeking medical services but also the unique sorrow and frustration that past and present service personnel and their families encounter when they get mistreated at U.S. government health care facilities in this country, whether at a military hospital, base facility, clinic, a Veterans Administration facility, or a federally supported clinic. When they seek remedies, they need expert counsel in these cases, which can get complex, fast.

As a nation, we have committed to caring for those who sacrifice on behalf of the country, and no one also wants to see valuable federal resources tied up in legal nonsense. But, as KHN noted, the federal health system for the military and dependents is big, with the VA often providing good care. Mistakes occur, too. They can be devastating. They can’t be dealt if bureaucrats can shove them out of sight, especially when patients raise reasonable claims. Fairness demands that we give service personnel the same legal safeguards and options that civilians enjoy, maybe even more. That can’t always occur under the current system’s constraints. When a justice as conservative as the late Antonin Scalia denounces the Feres doctrine and finds issues in the federal tort claims system, the high court ought to at least review a musty precedent.

Patient Tally has decided not to just be unhappy or angry but to change the system, and folks may wish to look at his efforts to change decades-old law, so the VA must act faster to inform patients whether their caregivers are independent contractor. Such individuals may become more common in the system, as the VA struggles to deal with a dire shortage of doctors to provide with its patients’ needs.

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