A Question Of Care: Military Malpractice?

(CBS)  Carmelo Rodriguez was dancing with his niece just last year. By all accounts Rodriguez, a 29-year old, loved life, his family and the Marine Corps. He was also an artist, a father, and a part-time actor. He once appeared with Katie Holmes in a scene on the TV series Dawson's Creek.

An image of Sgt. Rodriguez with his Marine buddies in Iraq in 2005 shows him as a fit, gung-ho platoon leader.

CBS News correspondent Byron Pitts met Rodriguez two months ago. That once-buff physique had been whittled down to less than 80 pounds in 18 months by stage 4 melanoma. He was surrounded by family, including his 7-year-old son holding his hand. It was Rodriguez's idea we meet.

When Sgt. Rodriguez was in Iraq, military doctors, he says, misdiagnosed his skin cancer. They called it "a wart."

Eight minutes after Pitts met Sgt. Carmelo Rodriguez, and CBS News was preparing to interview him, he died.

At his family's insistence, Pitts and the camera crew stayed. With his body in the very next room, Pitts sat down with his relatives.

Pitts asked: "Why have us here for such a painful moment for your family?"

"[It was] His wish to have this known, because he doesn't want any other soldier to fight for his country and go through what he had to go through," said Rodriguez's uncle, Dean Ferraro. "To be neglected."

"He said, 'don't let this be it. Don't let this be it. Fight!'" his sister, Elizabeth Rodriguez, said. "That's what we're doing. We're gonna fight for him."

The "fight," as they call it is over what's known as the Feres Doctrine, a 1950 U.S. Supreme Court ruling that bars active-duty military personnel and their families from suing the federal government for injuries incidental to their service. In other words, unlike every other U.S. citizen, people in the military cannot sue the federal government for medical malpractice.

"When he enlisted in 1997, from his initial medical checkup - you know what I mean, physical - the doctor documented that he had melanoma, but never told him 'have anyone follow up on it,'" Ferraro said. "And that was back in '97. If we would have known back in '97, he would still be with us."

CBS News was given a copy of that medical report. The doctor notes skin as "abnormal." In further details he describes it as "melanoma on the right buttocks." There's no recommendation for further treatment.

Eight years pass. Sgt. Rodriguez is in Iraq.

"If a birthmark is about that big [she holds up two hands], and … it has a raise like that and is pussing, just let it go and say it's a wart??" his sister, Elizabeth, said. "Who does that; how does that happen? It's not right. It's not right."

His uncle Wilfredo Negron said: "Twenty-nine years old! You know all his life is good. Never into drugs, never into partying. Served his country faithfully. Served his Lord faithfully! He held on positive because he's a warrior. He's a Marine. He fought for his country and also for his family."

According to a veterans group that tracks soldiers who are misdiagnosed, there are hundreds of misdiagnosed cases across the country.

Twenty-five-year-old Air Force Staff Sgt. Dean Patrick Witt was one of them. Witt's family says his appendicitis was repeatedly misdiagnosed. After emergency surgery, Witt ended up brain dead.

He later died.

Pitts spoke with Military law expert Eugene Fidell, who is an attorney.

"You talk to military families who believe they have a malpractice case against the military and you tell them what?" Pitts asked.

"It's very very difficult when I get these calls, and I get these calls repeatedly over the course of a year. I probably get one ever couple months," Fidell said. "These people have to be made to understand that the law simply doesn't permit them to bring a lawsuit. They can bring a lawsuit, but their lawsuit will be a complete waste of time."

Pitts showed Fidell a copy of Rodriguez's medical records.

Military emails show that Sgt. Rodriguez's commanding officer, Lt. Col B.W. Barnhill, quotes a military nurse who called Rodriquez case "a major screw up."

An email also reads: "He should have been immediately seen and the wart removed and we may not have gotten to where we are now."

Pitts said to Fidell: "When he's in Iraq, the doctor says we'll have someone look at it when you get back to the states in five months."

He shook his head. "If I had a comparable condition myself, or a member of my family had, and somebody would have said, 'sorry, no one can see you for five months,' I would have fired the doctor!"

But Rodriguez didn't have that option.

"No, he didn't. I hope members of Congress are watching this show," Fidell said. "The law has got to change."

What's the military's response?

"I'm not prepared to discuss the Feres Doctrine," said Navy Capt. William Roberts, the medical officer of the Marine Corps.

Three weeks after CBS News' initial request, the Pentagon granted an interview with Roberts.

But he wouldn't discuss the Feres Doctrine, or Rodriquez's case, saying it was "under investigation."

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Find out more about how Byron Pitts reported this story at Couric & Co.
FYI: Find out how to make your voice heard on this issue.

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As for how many cases like the sergeants?

"I do not have those numbers at all," Roberts said.

Is that because those numbers don't exist or he can't provide them?

"I certainly don't know them," he said.

"If Carmelo Rodriguez was a civilian, his family would have the right to seek damages," Pitts said.

"I am sorry but I can't comment on the legality of that type of redress," he said.

For the Rodriguez family - the best they can hope for is a final report?

"They will get a final report if they ask for it," Roberts said.

Because he was a Marine, Sgt. Carmelo Rodriquez received a military funeral. But, it was an honor his family paid for.

As it turns out, Rodgriquez was forced into retirement due to his illness. Since he was retired, the military was no longer obligated to pay for his funeral.

His son, Carmelo Rodriquez IV, was shown the gratitude of a grateful nation: An American flag - and 55 percent of his father's benefits.

For those who would say these young men and women sign that line saying I turn my life over to the U.S. Military, hey willingly give up some of their rights?

"George Washington said that when a person puts on the uniform, he does not cede being a citizen," Eugene Fidell said.

Rodriguez was a citizen.

But to his family and his friends, he was a so much more.

[snoozebuttons]

I can relate - when my daughter was 3yrs old she fell 6' off playground on base face down, her elbow didn't look normal. She is speech delayed and doesn't comprehend w/mild hearing loss (thanks to military), but since she didn't cry or show sign of pain she wasn't taken seriously in ER. My husband was deployed at the time. When she fell, and seeing her elbow very swollen, she layed face down, didn't say anything. I stood her up and signed to her, she didn't answer she just cling to me. I tried to ask her where it hurts, she was quite and clingy. I put my kids in the car and drove straight to ER. We checked in at 6pm, no one offered ice or sent us to X-ray. Hours past, still sitting there. I called my husband's work - I thought maybe if I had someone with rank there they would take her seriously. My husband's supervisor showed up and kept asking the staff how long do we have to wait? Almost 2 1/2hrs later finally seen, I was told she just bruised her elbow. This doctor kept yanking, twisting, pulling her arm and she didn't show any sign of pain. He was going to send us home! I wanted X-ray, he denied, but I am pushy, I knew it was broken. On her paperwork it stated head injury and elbow. For a head injury - they should have done a CT scan on her but never did! We weren't wheel chaired to Xray, I had to carry her to X-rays and back. In X-rays she was screaming her lungs out, but when we went back to ER room, the doctor didn't believe it. Looking at X-rays she had a "Fat Pad" and lot of fluid in elbow. He wrapped her elbow, and told me to see her pediatrician in 5-7 days.

Forget that, all her screaming of pain, I went to orthopedics walk in clinic the next day. There was no referral for Orthopedics, so we had to wait awhile. Finally saw orthopedics (adult clinic)who couldn't see a break. She went thru so many casts due to pain, they kept telling me it was healed and she is screaming cuz she wants the attention. I kept requesting 2nd opinion, I emailed and contacted children hospitals trying to see if they would see her without referral. All my referral were always denied! I requested a CT scan and MRI also denied! The cast came off in May, she couldn't straighten it, she was still in pain. In Aug. 2008, they had her to do intensive PT where she would always cry but the PT guy said its helping her.

In 2009, we PCS'd, the new military doctor told us her elbow was healed! I wanted referal, finally an adult Orthopedic doctor told us her elbow was still broken never healed. The bad news her elbow is too complex of a break he wouldn't do it and recommended us to Shriners Children's Hospital. We were there on Christmas Eve who also confirmed her elbow still broken, but she would need a specialiest who can repair a very complex break in elbows. We got orders to East Coast, and Shriners told us to look into University hospitals, and find a doctor who specializes in complex breaks.

In Jan. 2010 we arrive new base. Military doctors said her elbow is healed, we got 1 referral to another incompetent doctor at CHOP. He couldn't answer any of my questions, in a 10min eval he told us he thinks her elbow is healed he didn't see anything wrong with it, that it healed nice. I started looking for a REAL Doctor! I found one at Hospital for Special Surgery. I tried forever with the base for a referral always denied. I paid out of pocket for the 1st visit. One look at her first X-ray he named what kind of break it was - nothing close to what military doctors said it was. He wanted a MRI done, but since the doctor at CHOP gave me a script for it, it would be cover under Tricare! March 19, back at HSS with MRI CD, the doctor told us she needed surgery and several doctors were shocked that she lived with a broken elbow for 2yrs. The pediatric orthopedic doctor called an adult orthopedic to come over and look at her MRI. Next thing I know 2 doctors were going to do the surgery scheduled for 4/12/2010. The adult orthopedic doctor had to transposition the nerve. Now she has a plate with 7 screws in elbow.

I am still fighting with Tricare to pay for the surgery, I owe close to $30,000.00. I rather be in debt than to have my child live with a broken elbow in pain for the rest of her life! I know her elbow will never be the same. She will never be able to swim, do a push up, climb a rope, do gynastics, she can't straighten her arm out, she can't really throw a ball, there is so much she won't be able to do and she is only 6yrs old now, all because she wasn't taken seriously when she broke her elbow! The funny thing 4/9/2010, we had meeting with her military PCM and who tried to talk us out of surgery and to see a doctor on Tricare network for a 2nd opinion!! I don't know what they don't understand we have so many doctors confirming it is still broken and she needed someone who specializes in complex elbow breaks which is very rare to find a doctor that is qualified!

[tangoad8]

I immediatly felt compassion the the family of Carmelo. I am scared now because my husband has brain tumors and he is being treated at the Cancer Treatment Research Center and now he is being referred to MD Anderson but the military has not diagnosed my husband with cancer. The military does however want to give my husband radiation therapy and chemotherapy without being diagnosed. My husband and I are tired and we only want the truth I am so scared right now because my husband does not receive therapy yet he is just seeing a variety of doctors.;and my heart really goes out to the Rodrigues family may God help you through while you hold close to all your memories. I posted this story on my face book because more people need to know the truth about the military and its Feres Doctrine. [e-mail]

[nelsonkm]

The government should not be excluded from all liability in every circumstance. Members of the military should get as good of care or BETTER than your average citizen. They are willing to put their lives on the line for our country and are not being given the same civil liberties as the rest of us. It is unforgivable that Carmelo's family had to pay for his military funeral when he died because of an error military doctors made and continued to make over time. Giving him the funeral he earned would have been the least they could do for him. I hope this Act passes. Maybe it will promote better care for our military personnel.

[Munch1958]

There are so many families ruined by the Feres Doctrine. This ruling needs to be overturned. Here is yet another example. This story appeared in today's Chicago Sun-Times:

http://www.suntimes.com/news/metro/2138728,CST-NWS-love04.article

http://blogs.suntimes.com/konkol/2010/04/love_for_aimee_and_yuriy.html

[hurtsoldier]

Note how fast even the events at Ft. Hood have passed from the public eye. There was a soldier who was clearly a danger to himself and others, and the response was to just punt him to a new unit rather than treat him. Sort of like the Vatican shuffle.

When I was downrange, I have no doubt that if I got shot and the medic got to me, he'd just take my weapon and run back to the others... because he'd get praised for saving the unit a phone book worth of paperwork for a lost weapon. Lost soldier is just a pamphlet of paperwork. Shows you where the priorities are.

[saalza]

i can totally relate to this family & story. i myself being a military wife am dealing with my own medical malpractice. i've been unable to enjoy my family & life for over 4 years. can't work and don't know if i will ever be able to again. can't collect either. so what are we to do?? someone should be responsible for their actions military or civilian. someone has to pay for mistakes made. it's only fair.

[flakaflaka]

To serve honorable to die courageously. God bless Carmelo and his family.

[monizk]

Come on lawyers take this case!!!
I?m in no way a lawyer and a lot of this is confusing but I read the 1950 ruleing and I didn?t see anything in there that said a serviceman/woman cant sue the government and I didn?t see anything in there that said the same for their family.

The 3 paragraph in the case says this:
(c) The Act confers on the district courts broad jurisdiction over "civil actions on claims against the United States, for money damages," but it remains for the courts to determine whether any claim is recognizable in law. Pp. 340 U. S. 140-141.

the mere fact that any lawsuits against the goverment are subjuct to a case in the 50's is absord especialy to the fact that 2 of the 3 are no brainers.
grigs vs united states-died while undergoing surgery no cause for death but im assuming this was an accident united states wins
feres vs united states- died while in barracks due to fire this was an accident united states wins
jefferson vs united states-goes into hospital for surgery comes out 8 months later goes into surgery again find a towel in stomach that had been there from the prior surgery doesnt say the member died from this however should the government be liable probably but if the member didnt die maybe not so i can side with both on this one
this case above however
cancer was never told to member is surely malpractice especialy since this marine goes through a physical every year. somebody should have caught this.
lawyers get off your ass and take on this case.

[smmonte]

I think this is appalling!! but unfortunatley I can't say that I am a bit surprised by the military or their lack of concern for this man and his family. They claim once you become a soldier you are no longer a citizen. What idiot said that!!??? I was always under the impression that when you fight for your country and put your life on the line you become more than just a soldier..... you become a hero!
This country has a short memory, we raise the flag and bless america but the minute one of these countless men and women serving our country so proudly and diligently are in need the military turns the other cheek.......What an outrage!!!! They need to start stepping up to the plate and acknowledging not only their negligence for allowing this travesty to have taken place but their "stupidity" as well.................God Bless Carmelo.

[phila48]

This is horrible, where is the justice for this family. My god, that idiot doctor did not do his job. My prayers are with the family.

God bless.

PS, SOME HOW, SOME WAY, YOU WILL BE ABLE TO SUE FOR MALPRACTICE!!!!