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Is the Feres Doctrine fair?

The legal precedent that protects the U.S. military from medical malpractice suits is challenged

Staff Sgt. Dean Witt would likely still be alive and raising his two children if an Air Force hospital had not botched a routine appendectomy.

Medical staff at Travis Air Force Base in California committed mistake after mistake following Witt’s 2003 surgery — including pushing a breathing tube into his stomach and using resuscitation equipment designed for children — that left the blond-haired, blue-eyed airman in a persistent vegetative state until he was finally removed from life support three months later by his family.

“We saw Dean and he was wired to so many machines,” Carlos Lopez, Witt’s brother-in-law, said. “I couldn’t believe what I was looking at. How do you go from a super healthy 25-year-old man to somebody who is essentially lifeless?”

Now, Witt’s death is the latest tragic case of military medical malpractice that has worked its way to the doorstep of the Supreme Court in an attempt to upend the legal precedent known as the Feres Doctrine. For more than 60 years, the ruling has protected the U.S. government from being held liable when servicemembers are killed due to official negligence while on duty.

The court is set to decide this month whether it will hear arguments from the Witt family and the government on whether to strike down protections against such suits and award damage payments for Witt’s death.

However, despite the horrific details of the case, any chance of the law being reversed now appears dim. A similar case of a Marine who suffered brain damage due to malpractice was rejected by the court last year, and Congress has refused to pass any change to the Feres Doctrine in more than six decades.

Meanwhile, some experts argue that military health care workers are held accountable for malpractice despite the Feres Doctrine and that victims and their families receive significant compensation following such incidents.

Chaotic scene

Witt traveled to Travis Air Force Base in October 2003 to get base housing ready for his wife, daughter and newborn son who were still in Utah. They believed nothing had gone wrong during his emergency appendectomy at the base’s David Grant Medical Center.

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But the night of the surgery, they received a late call from an Air Force secretary in Texas, Lopez said. “It was some secretary who was told to get the paperwork going to medically retire Dean,” he said. “She said, ‘I don’t know if you were told but he (Witt) is not expected to live through the night.’ ”

The family said that call led to months of wrestling with the military to get the details of what happened to Witt at the hospital.

It was true that his surgery had no complications, according to the California medical records and Air Force briefing documents. But while he was still sedated and being wheeled to the post-surgery recovery unit, his throat had a spasm and he stopped breathing.

A series of critical mistakes made by an Air Force major, who was working as a nurse anesthetist in charge of a medical team of doctors and student nurses, resulted in oxygen being cut off from Witt’s brain for seven to 10 minutes, medical records show.

The anesthetist left Witt in the care of an inexperienced student nurse; did not call a “code blue” to notify the hospital’s recovery unit that Witt needed to be resuscitated; used resuscitation equipment intended for children; and mistakenly put a breathing tube into his stomach instead of his lungs, according to a complaint against the nurse filed by the state of California.

An Air Force investigation of the incident described it as an “extremely chaotic scene” where it was “uncertain who’s in charge,” according to service briefing documents obtained by Stars and Stripes.

For three months, Witt’s body deteriorated until he was gaunt and skeletal when life support was stopped. He died Jan. 9, 2004.

Long shot

The Air Force said Wednesday it could not comment on the details of Witt’s case or any specific punishments for hospital staff, saying it was barred from discussing it by federal privacy laws, but that “multiple medical investigations were immediately initiated” following the incident to prevent recurrence and improve safety.

The Air Force also provided Stars and Stripes a general description of staff and facility improvement measures taken in recent years at David Grant Medical Center, including “aggressive” teamwork training for staff and the addition of a simulated lab for surgical training that has improved team care “in every department.”

“Air Force officials at the highest levels have taken a strong and personal interest in these cases,” according to a written statement by the Air Force press desk. “That interest extends not only to the cause and extent of injuries … but also to the continued well-being of their families.”

The Witt family charges that the Air Force and hospital staff were secretive and insensitive during the ordeal and that the family was never told how the military reprimanded staff for the mistakes.

After filing a grievance with the Air Force and unsuccessfully lobbying Utah lawmakers, the family filed a lawsuit against the United States government in 2008 asking unspecified damages for Witt’s pain and suffering, medical bills, funeral expenses, loss of earning potential and death, according to a copy of the complaint.

“We are hoping that ultimately by exposing the government to these types of lawsuits the [military] health care system is going to get better,” Lopez said.

Witt family attorney Laurie Higginbotham said it is still a “long shot” that the case will reach the Supreme Court but the time is ripe for the court to revisit the issue.

“If they refuse to hear it, that’s it for this family and it is certainly not encouraging for servicemembers because it means the court is not going to reverse the Feres Doctrine,” Higginbotham said. “Congressional bills have been stalling out for years and [a legislative change] is not likely to happen anytime soon.”

Numerous chances

Inaction by Congress is a key argument for the U.S. defense.

The U.S. solicitor general’s office, which is representing the government in the Witt case, argued to the Supreme Court in May that the Feres Doctrine should not be overturned by the courts because it is backed by decades of legal decisions but that Congress has the power to change it anytime.

“Congress has rejected numerous bills that would have overruled Feres or made it inapplicable to medical malpractice cases,” according to the solicitor’s filed response.

Furthermore, U.S. attorneys said, “Only confusion and instability would occur if the court overruled a ‘well established’ precedent like Feres.”

In the original Feres v. United States lawsuit in 1950, the Supreme Court decided against the families of three active-duty servicemembers who were seeking damages from the government after dying in separate incidents while on duty — one had a 30-inch-long, U.S. Army towel left in his abdomen following surgery. The court upheld that position in 1987 in another case involving a Coast Guard pilot who died while on duty.

The Feres Doctrine does not prohibit servicemembers or their families from suing over injuries to spouses or dependents caused by the military or government. The spouse of a now-retired airman was recently awarded a $7.5 million settlement after suffering malpractice at the base clinic at Andersen Air Base on Guam.

The courts have continued to uphold the original ruling and so far, there has been no legislation passed to change the Feres Doctrine, which might indicate the public does not support changes, said Mike Navarre, a member of the advisors board for the National Institute of Military Justice and a former Navy judge advocate.

“If you use Congress as a barometer as to the sentiments of the American people, Congress has had 60 years to deal with the Feres Doctrine … and Congress has not dealt with it,” he said.

Opposition in the House

The 2008 death of Marine Sgt. Carmelo Rodriguez triggered recent legislation and hearings in the U.S. House of Representatives.

Rodriguez was diagnosed with skin cancer when he joined the Marine Corps in 1997 but was never notified or treated, according to reports of his death. After suffering with complications during service in Iraq, he returned home and was diagnosed too late to be cured.

A severely emaciated Rodriguez died in front of a television news crew who had come to interview him about military medical malpractice.

“There is no good reason why victims of malpractice at military medical facilities should be denied the same basic set of rights guaranteed to all Americans,” Rep. Maurice Hinchey, D-N.Y., who sponsored the 2009 bill for the Rodriguez family, said in an email to Stars and Stripes.

Hinchey’s bill would have amended the Feres Doctrine to permit the courts to rule in favor of servicemembers and military families who sue over malpractice.

But the bill never made it to a floor vote in the House and the issue continues to faces stiff odds because Republicans, who now hold the majority there, oppose it, according to Hinchey.

“It is unlikely that the current Congress would move this bill forward, but I’m going to continue working to build support around the measure in the event that the [Supreme Court] does not reverse its wrong-headed decision in Feres,” he said.

Ensuring fairness

Meanwhile, the tragic medical malpractice cases have garnered public sympathy, said retired Maj. Gen. John Altenburg, a Washington, D.C., attorney who served as deputy judge advocate general of the U.S. Army and as an adviser to former President George W. Bush.

“The Feres Doctrine, whenever it comes under attack, it is because of a particularly horrific set of facts,” but changes are unlikely to improve military health care, as the Witt family hopes, or mean fairer compensation for victims, Altenburg said.

Military caregivers who violate medical standards are already punished administratively or criminally under the current system.

“I know doctors we have prosecuted for negligent homicide, doctors who were prosecuted by the military,” he said.

In 2004, the Air Force barred the nurse anesthetist in the Witt case from practicing medicine in military hospitals and the state of California suspended her anesthetist license and revoked her nurse license for three years in 2007, documents published by the California Board of Registered Nurses show.

“There is the accountability that these people are seeking,” Altenburg said.

The military system of benefits also offers compensation benefits to victims of malpractice and their surviving families, he said.

Witt’s family received $350,000 from military life insurance and death benefits, the same amount they would have received if he had died of other causes while on active duty. His wife gets a monthly payment of $1,154 and his children will receive $286 per month until they are 18, as well as college tuition assistance, according to court documents.

“We’ve tried to ensure uniformity through the Feres Doctrine,” he said. “If the Congress believes the dollar amounts are too low … they can increase the gratuity, they can increase the death benefit, or they can increase the monthly amount that goes to widows and children.”

Holding out hope

Aimee Zmysly said more money would help her husband, Cpl. Yuriy Zmysly, recover from injuries caused by military medical malpractice.

The former Marine has health insurance and received benefits from his military service, but Zmysly said she has to fight with insurance providers to keep him in physical therapy programs. She was hoping a civil settlement from a military medical malpractice lawsuit she filed against the U.S. government could help fund years of top-quality care.

In 2006, while serving on active duty, her husband was rushed into a military hospital at Cherry Point, N.C., for emergency surgery to remove his appendix. During the procedure, a student anesthetist pulled out his breathing tube too soon, cutting off oxygen to his brain, his wife said.

“It looked like he had been in a car accident. He was swollen, he had tubes everywhere and he wasn’t breathing on his own,” she said.

Zmysly, a veteran of the wars in Iraq and Afghanistan who once built his own computer and was set to leave the service to become a mechanical engineer, suffered brain damage and lost his ability to speak, see, walk and fully use his left hand, his wife said.

Last year, the Zmysly lawsuit made it to the doorstep of the Supreme Court after rejections by lower courts. But ultimately the court declined to hear the case due to the Feres Doctrine.

It is still unclear whether the court will see something different in the Witt case, but Zmysly said it is still giving her some hope that Feres might still be overturned and others might receive the day in court that her husband was denied.

“He loved working with his hands and fixing things,” she said. “They took everything away from him and it just isn’t fair.”

trittent@pstripes.osd.mil

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