Active military barred from malpractice suits

The Baltimore Sun

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 inserted, it was misdirected, uselessly pumping air into Witt's stomach. Errors compounded errors, and delays multiplied.

By the time a breathing tube was finally inserted correctly, Witt had suffered devastating brain damage. Three months later, he was removed from life support and died. Witt left behind a wife and two young children.

"This medical incident was due to an avoidable error," concluded a previously unpublished internal report, a copy of which was reviewed by the Los Angeles Times.

Despite the report's harsh criticism of Witt's medical care, the bereaved family could not sue for malpractice because Witt was an active-duty airman. Under limits stemming from an obscure Supreme Court ruling nearly 60 years old, military hospitals and their staffs are immune from malpractice claims if the victim is an enlisted man or woman on active duty.

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

Feres defenders say the doctrine is necessary to protect the military from costly, time-consuming trials that could compromise military discipline. Rep. Duncan Hunter, a Republican from California, 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.

But fresh attempts to reverse Feres are in the works, spurred in part by the death in January of Marine Sgt. Carmelo Rodriguez.

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 mistook a deadly melanoma for a wart.

His case prompted Rep. Maurice D. Hinchey, a New York Democrat, to promise renewed efforts to overturn Feres. Previous bills have passed 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."

The 1950 Feres decision encompassed three 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 sued after a towel nearly 3 feet long was found in his abdomen, left there by military surgeons.

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 Supreme Court came within a single vote of overturning Feres in 1987. Justice Antonin Scalia, one of four dissenting justices, wrote that Feres deserved "the widespread, almost universal criticism it has received." He lambasted Congress for "doing little, if anything," to correct the "unjust and irrational" results of the doctrine.

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.

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, which had an 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."

Travis officials said the hospital could increase its anesthesia unit only if the Pentagon provided additional personnel.

Despite the long legal odds, Witt's widow, Alexis, is determined to challenge Feres in court. Earlier 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.

Walter F. Roche Jr. writes for the Los Angeles Times.

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