The Right to a Day in Court for U.S. Servicemembers

The Right to a Day in Court for U.S. Servicemembers

  As personal injury attorneys in Virginia, the focus of our practice is to assist families in seeking compensation for injuries caused by the actions, or inactions, of another party. Of particular importance are those cases that result from preventable medical diagnostic mistakes, unnecessary surgical errors, and complications of wrongly prescribed medication. The laws in Virginia relating to claims stemming from medical negligence or malpractice are both complicated and restrictive. But, for the most part, Virginia’s laws provide for fair compensation for those who have been harmed by a medical professional who fails to follow acceptable standards of care or one who is simply careless or incompetent. That is not necessarily the case, however, for members of the United States Armed Forces, who frequently find themselves foreclosed from recovering compensation for compelling cases of medical malpractice.

Consider These Compelling Cases

  • Carmelo Rodriguez underwent a comprehensive medical examination. A finding of melanoma was documented in his medical record, but never revealed to him, and no follow-up care was recommended. Six years later, a medical professional found and noted a strange looking mark on Carmelo’s body during a pre-surgery physical for a foot problem, but again, did not follow up. Later, when Carmelo became concerned about a spot on his buttocks, he visited a doctor who told him it was a wart and recommended he wait and see. Carmelo Rodriguez later died of melanoma. He was 29 years old.
  • Rebekah Moani Daniel died four hours after giving birth to a healthy daughter. When she began to hemorrhage, medical professionals administered drugs but they could not stop the bleeding. A balloon device could have stopped the bleeding and hemorrhaging, but it was ordered too late. A blood transfusion also came too late, almost 90 minutes beyond the standard of care time frame.
  • Twenty-five-year-old Dean Patrick Witt entered a hospital for a routine appendectomy. A nurse anesthetist inserted a breathing tube in the wrong place, depriving his brain of oxygen. Witt died once his family removed him from life support three months later.
  • During labor and delivery, Heather Ortiz was given a medication that her medical record clearly stated she was allergic to. A severe allergic caused a drop in blood pressure, and the infant suffered brain damage.
  • Colton Read checked into the hospital for gallbladder surgery. During the procedure, his aorta was accidentally nicked, and the resulting blood loss required that both of his legs be amputated.
Although in each case the evidence is powerful, all of the victims of medical malpractice above were members of the Armed Forces. That means that Airman Colton Read, Air Force Capt. Heather Ortiz, Air Force Staff Sgt. Dean Patrick Witt, Navy Lt. Rebekah Daniel, and Marine Sgt. Carmelo‘s cases are overshadowed by a 69-year-old Supreme Court decision, known as The Feres Doctrine, preventing suits against the government by active-duty members of the Armed Services. This decision also barred soldiers from filing suit for injuries not related to combat. Their compelling individual stories (as reported in various news publications), although years old, remain the center of a number of bipartisan efforts to break through the stronghold of Feres—to no avail.

Feres Remains

Over the years, the Supreme Court has declined more than once to hear cases that might challenge Feres. In 2011, despite the horrific outcome of Dean Witt’s substandard medical care, the Supreme Court declined to hear the case. The Feres doctrine has been a subject of contention within the Supreme Court itself. In his dissent to a recent decision, Justice Clarence Thomas wrote that the refusal of the high court to hear a case addressing the Feres Doctrine will have “unfortunate repercussions.” Attempted lawsuits throughout the years have all failed. In 2015, in response to litigation brought on by Captain Ortiz, the 10th Circuit Court of Appeals in Denver ruled in favor of the government. Judge Timothy Tymkovich, one of the three presiding on the panel, wrote: “To be sure, the facts here exemplify the overbreadth (and unfairness) of the doctrine, but Feres is not ours to overrule.”

Outrage Leads to Congressional Support

In 2008 Congressman Maurice Hinchey (D-NY) proposed a bill named the Carmelo Rodriguez Military Medical Malpractice and Injustice Act to address the Feres Doctrine’s judicial ruling. HR 1478 was introduced in the 111th Congress (January 6, 2009, to December 22, 2010), failed to be enacted, and was suspended.

Survivors Continue to Fight

A suit brought by Rebekah Daniel’s husband in 2015 failed in the lower courts, and subsequently, The Supreme Court declined to hear arguments that could challenge Feres. In a statement to Newsweek Daniels said, “Our case and our fight is over—but it continues for other servicemembers.” And so right he was. The SFC Richard Stayskal Military Medical Accountability bill was introduced on April 19, 2019, by Democratic Representative Jackie Speier of California. Seargent First Class Richard Stayskal has metastatic disease in his neck, lymphatic system, spleen, liver, spine, and hips stemming from military physicians failure to diagnose lung cancer. “When our servicemembers suffer from medical malpractice — when doctors fail to perform or woefully misread tests—when nurses botch routine procedures—when clinicians ignore and disregard pain — servicemembers deserve their day in court,” said U.S. Rep. Jackie Speir (D-Calif.). In March 2017, while training in Florida at the Special Forces’ Underwater Operations School, Richard Stayskal was having health problems. Symptoms of shortness of breath, wheezing, numbness and blurry vision were diagnosed as asthma and pneumonia by several doctors, including a physician in the same hospital where he had a pre-dive training physical examination just a few months before. When he began coughing up blood, he saw a civilian pulmonologist who found a large tumor in his lungs. It was determined that a three-centimeter nodule was visible on his January 2017 pre-dive CT scan. Additionally, it was discovered that military doctors also noticed it in May, recommended follow-up, but never told Richard Stayskal. Between rounds of chemotherapy for stage IV cancer Richard Stayskal is a fervent lobbyist in Congress, seeking the exact same rights for service men and women that every other American already has. The right to hold medical professionals accountable for their actions. Recently he spoke before the House Armed Services Committee to tell his story of struggle. (See part of his testimony here.) The bill has bipartisan support, and although it has taken our legislators decades to get us where we are today, it is beginning to look like The Feres Doctrine may be on shaky ground.

Let’s Solve This Serious Problem

Medical malpractice is a serious problem that can harm entire families for a lifetime. Serving our nation in the military shouldn’t create a bar to appropriate compensation for damages.

William B. Kilduff


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