Injured by Medical Malpractice, but Not Allowed to Sue: Part II

On behalf of Brown & Crouppen, P.C. posted in Medical Malpractice on Wednesday, June 22, 2011

In our previous post, we discussed the Feres Doctrine, a 61-year-old rule that prohibits active members of the armed forces who are injured by medical malpractice from suing the military medical staff responsible for the negligent care. The doctrine comes from a 1950 U.S. Supreme Court case, Feres v. United States, and has survived a number of attempts to restore servicemembers’ rights to seek compensation over the years.

In this post, we will share the stories of two military families whose lives have been affected by the Feres Doctrine, including one that has filed the most recent “long shot” challenge to the rule.

The first case is of a Marine corporal who was stationed in North Carolina in 2006 when he suffered an attack of appendicitis. He was rushed to the base hospital for surgery. During the operation, a student anesthesiologist removed his breathing tube too soon.

The corporal’s oxygen was cut off and he suffered profound brain damage. Today, he is blind and unable to walk, speak or completely use his left hand. Health insurance and military benefits are often not enough to keep him in physical therapy. He and his wife sued the hospital and the case reached the Supreme Court in 2010, but the Court declined to hear the case.

While the Marine’s injuries due to malpractice were horrific, those suffered by an Air Force sergeant in 2003 were even worse. The sergeant was a 25-year-old husband and father who had recently arrived at Travis Air Force Base in California to prepare on-base housing for his family. Like the Marine, he suddenly became ill and went to the base hospital, where he was taken into surgery for an appendectomy. The surgery itself was a success, but as he was taken to the recovery room, his throat closed and he stopped breathing.

Medical records indicated that what followed was an “extremely chaotic scene” where it was unclear who was in charge of resuscitating the sergeant. The surgical team made a series of mistakes, including putting a breathing tube in his stomach instead of his lungs and using equipment intended for children. The sergeant’s brain was deprived of oxygen for up to 10 minutes, leaving him in a vegetative state for three months. He died on January 9, 2004, leaving behind two young children and his wife.

The sergeant’s family has also filed a suit challenging the Feres Doctrine, but the family’s attorney is not optimistic the Supreme Court will hear it. He said that though the case is a “long shot” but that it was more likely the Court would revisit the issue than Congress, which is unlikely to pass a bill repealing the doctrine.

Source: Stars and Stripes, “Is the Feres Doctrine fair?” Travis J. Tritten, June 19, 2011

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