Military Medical Malpractice: Seeking Recourse

By Walter F. Roche Jr.

The Los Angeles Times

Sunday 20 April 2008

Outrage over a recent spate of incidents spurs fresh efforts to overturn the Feres doctrine, a 1950 Supreme Court decision denying active-duty service members the right to sue over medical errors.

Minutes after routine surgery for acute appendicitis in October 2003, Staff Sgt. Dean Witt, 25, was being moved to a recovery room at a Northern California military hospital when he gasped and stopped breathing.

A student nurse assisting an understaffed anesthesia team tried to resuscitate Witt and failed. Inexplicably, Witt's gurney was wheeled into a pediatric area. Lifesaving devices sized for children, not a 175-pound adult, proved useless, according to an internal report on the incident.

Medical personnel at David Grant Medical Center at Travis Air Force Base screamed at each other. A double dose of a powerful stimulant was mistakenly administered. When a breathing tube was finally inserted, it was misdirected, uselessly pumping air into the patient's stomach. Errors compounded errors and delays multiplied.

By the time a breathing tube finally was inserted correctly, Witt had devastating brain damage. Three months later, he was removed from life support and died. Witt, who grew up in Oroville, Calif., left behind a wife and two children, including a 4-month-old son.

"This medical incident was due to an avoidable error," concluded an unpublished internal report, a copy of which was reviewed by The Times.

Despite questionable medical care criticized in the report, the bereaved family could not sue for malpractice because Witt was an active-duty airman. Under limits stemming from a Supreme Court ruling nearly 60 years old, military hospitals and their staffs are immune from malpractice claims - even for the most egregious lapses - if the victim is an enlisted member on active duty.

A series of court rulings since 1950 have upheld the original decision, known as Feres vs. United States, denying members of the military the right to sue for damages over medical errors or even deliberate wrongs.

Barbara Cragnotti of Medford, Ore., learned of the Feres case after her son Joseph suffered lung and neurological injuries from undiagnosed pneumonia while under a military doctor's care. Joseph Cragnotti was in the Navy and had nearly completed training for submarine duty when he was stricken.

Military medical personnel failed to provide antibiotics, and her son ended up having multiple surgeries. He lost part of a lung. His mother said his condition deteriorated further after doctors at the naval hospital in Bremerton, Wash., took the sailor off a needed drug, causing seizures and permanent neurological damage.

Joseph Cragnotti, now 28, has left the military but still needs treatment for his medical conditions.

His mother joined VERPA - Veterans Equal Rights Protection Advocacy - a nonprofit group determined "to expose and remedy" what it calls "the un-American Feres doctrine."

Barbara Cragnotti, now head of the organization, foresees more trouble as wounded troops from Iraq and Afghanistan strain a taxed military health system. "Congress is not going to act until the public forces them to," she said. The military medical establishment is "hiding behind the Feres doctrine."

Christine Lemp, whose husband, James, 35, died after receiving questionable medical care at Missouri's Ft. Leonard Wood, said accountability was lacking. "One of the most disturbing things is that these doctors can do anything and nothing happens," she said.

Army Capt. James Lemp was diagnosed with a stomach virus in 2003. Hours later, he was brain-dead from a stroke-like condition called vertebral artery dissection. Experts hired by his wife said that with proper treatment, he would have had a 90% chance of recovery.

Defending the Doctrine

Feres supporters say the doctrine is necessary to protect the military from costly, time-consuming trials that could compromise military discipline. Rep. Duncan Hunter (R-Alpine), a member of the House Armed Services Committee and a former fighter pilot, called Feres "a reasonable approach to ensuring that litigation does not interfere with the objectives and readiness of our nation's military."

For years, the Department of Justice and the Pentagon have joined forces to fend off legal and legislative challenges to Feres.

"Nobody wants some judge meddling in military matters," Paul Harris, then a deputy associate attorney general, told a Senate committee in 2002. "It would have dire implications."

Harris, now in private practice, said he stood by his position that "it would be unconscionable to subject the military to an adversarial civil trial process."

But fresh attempts to repeal Feres are in the works, spurred in part by the case of Marine Sgt. Carmelo Rodriguez. In January, a CBS News TV crew had just arrived to interview him when Rodriguez - holding the hand of his 7-year-old son - died. Rodriguez, 29, an Iraq war veteran from New York, had been ravaged by cancer that he and his family blamed on years of misdiagnoses.

Military doctors had mistaken a deadly melanoma for a wart.

His case prompted Rep. Maurice D. Hinchey (D-N.Y.) to promise renewed efforts to overturn Feres. Previous bills have passed easily in the House but died in the Senate.

"No service member should ever become sick or die as the result of poor military medical care," Hinchey said. "I believe our military has outstanding doctors, but if those doctors fail our men and women in uniform, then there must be some system of accountability."

Military Is "Sole Remedy"

One former military doctor told The Times that military medical staffs were well aware that Feres shielded them from malpractice claims by active-duty patients or their survivors.

The doctor, who spoke on the condition that he not be identified, served on the medical staff at Travis Air Force Base. He said staff shortages were chronic there and at other Air Force installations where he worked.

Under such circumstances, he said, "they'll take anyone."

James B. Smith, a New Jersey lawyer who served as a military trial judge during a 30-year service career, said the theory behind Feres was that since the military provided full medical care for members and lifelong veterans benefits, there was little practical need for financial damages for malpractice. "The military is already providing for you, and that's your sole remedy," Smith said.

The 1950 Feres decision encompassed three separate cases. One involved a soldier named Rudolph J. Feres who died in a fire caused by a faulty barracks heating system. The others were the victims of medical malpractice. One had sued after a towel nearly 3 feet long was discovered in his abdomen, left there by military surgeons.

The court was interpreting the Federal Tort Claims Act, which gives citizens a limited right to sue the government for wrongs resulting from the actions of federal employees or agencies.

But the Supreme Court, in a unanimous opinion by Justice Robert H. Jackson, reasoned that active-duty members of the military could seek other remedies for such wrongs, including Veterans Administration benefits. "The compensation system, which normally requires no litigation, is not negligible," Jackson wrote.

The Supreme Court came within a single vote of overturning Feres in 1987. Justice Antonin Scalia wrote in the dissenting opinion for the four-member minority: "Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received."

Among the curious aspects of Feres is that it bars malpractice suits by active-duty military personnel but not by their spouses or other family members, who also are entitled to treatment at military hospitals.

"It doesn't make any sense," said Washington-based lawyer Eugene Fidell. "If a doctor malpractices on a dependent on one day, the family can sue. But if he commits the same malpractice the next day on a GI, they can't."

An investigative panel convened by the Air Force shortly after Witt's surgery concluded in its still-unreleased report that "due to assignments, deployments and recent ill health," the anesthesia unit at the Travis Air Force Base hospital was badly understaffed.

"There is insufficient manning to support operational tempo and the teaching mission of the hospital," the report said. It found that the authorized complement of seven anesthesiologists was down to four available for duty.

"This medical incident was due to an avoidable error," the report said. "The practice of anesthesia at a medical center should not rely on the minimum standard."

In response, Travis officials said the hospital could increase its anesthesia unit only if the Pentagon provided additional personnel. Base officials declined to comment on any aspect of the Witt case, citing privacy restrictions.

Legal Challenge

Despite the long legal odds, Witt's widow, Alexis, is determined to challenge Feres in court. This month she was formally notified that her administrative claim against the Air Force had been declined, an expected rejection that exhausted all options but litigation.

"As a family," said her sister Carmen Voegeli, a Marine veteran, "we have a right to know what happened. How dare the military use these men and take away their rights."

One haunting coincidence that could be a factor in the Witt family's challenge of Feres involves a nurse anesthetist who helped treat the airman. After Witt's death, her license was revoked by the state of California for "negligence and/or incompetence."

The same anesthetist had been on duty a year earlier when 22-year-old Texas airman Christopher White died after routine surgery on his shoulder. As in the Witt case, post-surgery care of White was criticized by the state nursing board.

White's family did not try to take legal action. If it had, that might have brought attention sooner to problems in the anesthesia unit.

His father, Harris White, said lawyers had advised him that he could not sue because of the Feres doctrine.

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