Military/Veteran Medical Malpractice Claims Are An Uphill Battle

December 06, 2012 (Press-News.org) Military/Veteran medical malpractice claims are an uphill battle

Some of the highest courts in the land -- the United States Supreme Court among them -- will soon be hearing cases involving the niche area of military malpractice claims. Military physicians usually enjoy "sovereign immunity" (essentially making them immune from many types of lawsuits) in their capacity as physicians working for the government.

These cases do not argue the validity of sovereign immunity, but instead question its applicability in even the most egregious military medical malpractice cases. The first case, - the one heading to the U.S. Supreme Court, for example - turns not on the fact that the doctor performed negligently (which, of course, the plaintiff is arguing), but that the doctor committed a battery by refusing to stop an elective cataract surgery after the patient rescinded his consent.

The scope of sovereign immunity

At first glance, the military medical malpractice case coming to the Supreme Court in their next session may seem like a straightforward medical negligence case, but it will actually involve an in-depth analysis of the breadth and scope of the sovereign immunity granted to government health care providers.

The case involves a veteran who was scheduled for surgery to remove a cataract and implant a replacement lens into his eye. The patient Steven Levin, said in a court filing that, prior to the surgery in a Guam military hospital, he rescinded his consent for the operation to proceed. According to Levin, the treating physician ignored his wishes to stop the surgery and proceeded anyway. There were complications from that surgery, and Levin was forced to undergo myriad additional treatments, culminating in a full corneal transplant the following year.

Levin eventually filed a complaint alleging both medical malpractice and battery on the part of the doctor who performed the initial surgery. The VA denied his claims for compensation in spite of the fact that Levin argued that his battery claim should not fall under the purview of sovereign immunity, and the 9th Circuit Court of Appeals agreed.

Since the 10th Circuit Court of Appeals had decided a similar case in favor of the complainant, Levin requested that the Supreme Court hear his case, and the nation's highest court agreed.

Another military malpractice matter making news

The case of veteran Michael Nash is certainly not one for the squeamish, and it involves a very "sensitive" malpractice issue. Michael Nash brought his federal court case after the VA denied his assertions of medical negligence. His claim arises from a medically necessary surgery on his penis, after which it was packed in ice for an extended time. Because of the overaggressive icing, he eventually developed frostbite on the area and has experienced loss of normal urinary function and sensation.

Like Levin, Nash initially sought benefits directly from the VA pursuant to the FTCA. In spite of the horrific nature of the harm suffered by Nash, the VA found that there had been no medical negligence or malpractice. Only after his claim was denied by the VA did Nash file suit in federal court. Given the red tape he went through, it may seem like Nash somehow erred in filing his claim for damages; unfortunately, that is not the case.

The Nash matter is illustrative of the number of hoops that injured veterans filing malpractice claims must jump through. There are several layers of administration and bureaucracy that must be followed exactly before claims will be decided. That is where a talented military law attorney comes in; having someone guide you through the claims process who is intimately familiar with the way the system works will not only make it less stressful for you, but can also increase your chances of a successful resolution.

Article provided by Webb & Beecher
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