[author: Mike Mintz]
A large number of combat troops have been returning home from their overseas missions, and many are seeking treatment at military and VA hospitals for injuries and conditions they’ve suffered as a result of their combat experience. Meanwhile, the federal government is engaged in a strategy of preventing them or their families from suing military and VA hospitals when cases of medical malpractice arise.
Last year, the U.S. Supreme Court refused to hear an appeal in the case of Witt v. United States. Dean Patrick Witt was an Air Force staff sergeant who was undergoing a routine appendectomy at a military hospital at Travis Air Force Base in California when he stopped breathing while being wheeled out of the operating room. A student nurse tried to resuscitate him but failed. Sgt. Witt was then wheeled into a pediatrics ward but the life saving equipment there was for infants and not for a grown man. When a tube was finally placed down Sgt. Witt’s throat to aid his breathing, it was put in incorrectly and pumped air into his stomach rather than his lungs. By the time the tube was correctly inserted, Sgt. Witt was brain dead. He was taken off life support three months later, leaving behind a wife and two young children.
Although there was no question that malpractice was committed, the suit filed by his widow was dismissed. The refusal of the U.S. Supreme Court to review that dismissal has raised alarm among the families of veterans.
The basis of the denial of soldiers’ and sailors’ medical malpractice claims is something called the Feres Doctrine, which says that the government is not liable for injuries to servicemen if the injuries arise out of, or are suffered in the course of, activities incident to service. The doctrine comes from the 1950 U.S. Supreme Court case of Feres v. United States, and has been extended to include reservists as well as active duty personnel.
Government attorneys are using the Feres Doctrine to contest other medical malpractice claims currently pending. This could be a cost saving measure on the part of the government, given the number of patients and the percentage of treatments that can result in malpractice. There are reports that the exposure of the government to such claims would be over $100 million per year.
According to New Mexico attorney Patrick Casey, “The application of the Feres Doctrine to medical malpractice claims attacks the families and children of veterans who otherwise would have been able to seek compensation for medical malpractice against the treating physicians and hospitals except for the fact that their spouse, mother or father, or son or daughter was in the military.” Mr. Casey says that doctors and nurses are only human and can make mistakes. However, he says that “the application of the Feres Doctrine to medical malpractice claims will perpetuate a lack of oversight over doctors and nurses at military and VA hospitals and thereby harm the quality of medical care.”
In the event that a veteran or family member of a veteran thinks they have a medical malpractice claim against the government, VA or military hospital, Mr. Casey recommends that they first contact an experienced medical malpractice attorney who will file a Special Form 95 (SF-95), which puts the government on notice of the malpractice claim and stays the two year statute of limitations. The government then has 6 months to respond by either settling or denying the claim. The claimant cannot file a law suit until either a denial comes from the government or the 6 months expires with no response. Mr. Casey says that should the government deny the claim or not respond to the claim, then the claimant should file suit in federal court.