U.S. Supreme Court May Reconsider Military Medical Malpractice Ban

May 22, 2011

When patients entrust their health to physicians, surgeons and other health care professionals, they deserve to know the risks and expect a health care provider's best efforts to maximize the chance of a positive outcome. The fact is, many occurrences of surgical error, misdiagnosis, medication error or birth injury are preventable, and medical malpractice attorneys strive to help clients and surviving family members obtain justice when they suspect that standards were not followed.

A patient's right to damages for the harm caused by medical errors is an established part of personal injury law in South Carolina and elsewhere throughout the U.S. But many Americans will be surprised to learn that the military personnel who serve our country at home and abroad are generally denied this basic right to justice. A legal principle called the Feres Doctrine, based on a 1950 U.S. Supreme Court ruling, makes all injuries caused by medical mistakes at military hospitals equal with combat wounds and thus immune from legal consequences.

A case proceeding through the federal court system could finally change this unfair doctrine. The case involves the wrongful death of Air Force Staff Sgt. Dean Patrick Witt, who suffered irreversible brain damage at a California Air Force base due to a deadly error during a routine appendectomy in 2003. A nurse anesthetist mistakenly inserted a breathing tube into Witt's esophagus rather than his trachea during intubation, and his brain was deprived of sufficient oxygen for seven to ten minutes. Witt's family decided to withdraw life support several months later due to the permanent brain injury he had suffered.

Filing a Medical Malpractice Claim for a Member of the Military

As the representative of Dean Witt's estate, his wife filed for administrative relief in 2005 with the United States Air Force, which denied her medical negligence claim three years later. She then filed a Federal Tort Claims Act (FTCA) lawsuit against the federal government in the United States District Court for the Eastern District of California. Ms. Witt's claim alleged that the nurse anesthetist's gross medical negligence caused her husband's death.

The U.S. filed a motion to dismiss for lack of subject matter jurisdiction, basing its opposition to the claim on Feres v. United States, 340 U.S. 135 (1950), which held that the federal government may not be sued "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." The District Court noted that the incident of medical malpractice was "so egregious and the liability of the Defendant seems so clear" and found that application of the Feres Doctrine seemed "particularly unfair" and "wrongheaded," but it reluctantly dismissed her case in 2009.

On appeal to the Ninth Circuit United States Court of Appeals, Ms. Witt contested the lower court's application of the Feres Doctrine based on the facts and also argued that it was unconstitutional. Her essential arguments were that:

- Excluding active duty service members from the FTCA violates the equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution; and

- The Feres Doctrine violates the constitutional separation of powers by creating a judicial override of Congressional intent, which states only a narrow exception to the FTCA for claims arising out of combatant activities.

Acknowledging the tragic circumstances that befell Dean Witt, the U.S. Court of Appeals affirmed the lower court's dismissal of the claim based on Feres without addressing the constitutional issues. Although Mr. Witt was on leave and not scheduled to report for another two weeks and therefore had no official military duties when he suffered acute appendicitis, other cases cited by the court focus the legal analysis on whether the treatment was received in a military hospital.

Ms. Witt pursued her final legal option earlier this year when she filed a petition for certiorari with the U.S. Supreme Court. This is the process by which our country's highest court decides whether or not it will review a particular case. Her appeal is being touted as a rallying point for veterans groups and military families.

Some legal commentators see an indicator of a Supreme Court victory from a 1987 about military hospital immunity. Justice Antonin Scalia made his views clear in dissent, writing that "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received." The Supreme Court recently requested more information regarding the case and will soon issue a decision about whether to review the larger issues argued by the plaintiff.

A Medical Malpractice Lawyer Can Explain Your Legal Rights

As this case demonstrates, medical malpractice litigation can move very slowly through the civil justice system, and potential plaintiffs should consider the experience of the law firm they choose. In addition to remaining up-to-date on all emerging legal issues, a trial-tested med mal attorney understands the importance of working with medical experts, compiling all relevant medical records and making a detailed assessment of a client's prospects for recovery from an injury or illness caused by medical error.

Article provided by Christian & Davis, LLC
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