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Military medical errors, malpractice immune to redress
Boston Globe
By Walter F. Roche Jr.
Los Angeles Times / April 20, 2008

LOS ANGELES - Minutes after routine surgery for acute appendicitis in October 2003, Staff Sergeant 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 case.

Medical personnel at David Grant Medical Center at Travis Air Force Base screamed at one another. A double dose of a powerful stimulant was mistakenly administered. When a breathing tube was finally inserted, it was misdirected. By the time a breathing tube finally was inserted correctly, Witt had devastating brain damage. Three months later, he was removed from life support and died. Witt, who grew up in Oroville, Calif., left behind a wife and two children, including a 4-month-old son.

"This medical incident was due to an avoidable error," concluded a previously unpublished internal report, a copy of which was reviewed by the Los Angeles Times.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 - even for the most egregious lapses - 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. Representative Duncan Hunter of California, a Republican 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 repeal Feres are in the works, spurred in part by the January death of Marine Sergeant Carmelo Rodriguez. A CBS television news crew arrived to interview Rodriguez just moments before he died, holding the hand of his 7-year-old son.

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 Representative Maurice D. Hinchey, a New York Democrat, to promise renewed efforts to overturn Feres. Previous bills have passed easily in the House but died in the Senate.

© Copyright 2008 Globe Newspaper Company.

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