ELLENVILLE, N.Y., Jan. 31, 2007
A Question Of Care: Military Malpractice?
One Marine Served His Country With Care. Was His Cancer Misdiagnosed, Leading To His Death?
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Play CBS Video Video Marine's Cancer Misdiagnosed? The family of Marine Sgt. Carmelo Rodriguez says military doctors misdiagnosed his skin cancer. Now, as Byron Pitts reports, they want the U.S. government held accountable for his untimely death.
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Video Eye To Eye: Misdiagnosed? "Only On The Web": Marine Sgt. Carmelo Rodriguez died at the age of 29, after family members say, his melanoma was misdiagnosed. Byron Pitts spoke to the grieving family.
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Sgt. Carmelo Rodriguez III was a father, a soldier, an artist and an actor. He loved life and the Marines. But skin cancer took his life. Was it military malpractice? (CBS)
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Sgt. Carmelo Rodriguez III was a father, a soldier, an artist and an actor. He loved life and the Marines. But skin cancer ravaged his body, whittling it down to 80 lbs in 18 months. He died before CBS News correspondent Byron Pitts could interview him. (CBS)
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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.
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Pitts spoke with Military law expert Eugene Fidell, who is an attorney.If we would have known back in '97, he would still be with us.
Rodriguez's uncle, Dean Ferraro"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."
As for how many cases like the sergeants?Find out more about how Byron Pitts reported this story at Couric & Co.
"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.
© MMVIII, CBS Interactive Inc. All Rights Reserved.
Michelle Obama tells how her role as the First Lady has changed her perspective.
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See all 651 CommentsI?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.
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.
God bless.
PS, SOME HOW, SOME WAY, YOU WILL BE ABLE TO SUE FOR MALPRACTICE!!!!
United States Court of Appeals, Fifth Circuit. - 860 F.2d 1256
tell the familly to check out this case. it was my dads case it is a malpractice suit against the goverment an a private doctor, an the goverment was the millitary.
any questions e-mail me at wow312002@yahoo.com
have such a curupt goverment.I am embarrased for any non us citizen to read about
what are goverment does wich reflects on us US citezens .
Hope the Rodriquez fammily are able to get justice.
Has anyone checked into the fact that physicians at US VA hospitals do not have to be licensed to practice medicine in the US? I had been told many years ago that the doctors at the VA medical facilities aren't required to have a medical license to practice medicine on patients who go to the VA for treatment. I may be wrong and have been misinformed, but if this is true, how can our government allow this to happen to the men and women who risk their lives to defend our country?
As for the death of Sgt. Rodriguez, he is not the first to be treated, or not treated, properly by a VA medical facility. I think the biggest problem is there are no independent agencies or organizations to inspect or regulate the VA facilities. Who holds these facilities to the normal standards for medical facilities?
I think there should be an investigation into the whole VA medical system and hopefully get these facilities to comply with standards of the rest of the medical profession in the US. Only then will tragic stories like this one stop.
My brother was a U.S. Marine who was killed in Viet Nam in 1967. He never came home. He was listed as: Killed in Action/Body never recovered. Our government is spending millions of dollars each year on seminars, DNA analysis, search missions to recover the remains of Americans lost during WW I, WWII, Korea, Viet Nam, and the Cold War. As a family member of a MIA, I find this outrages. As much as I would wish that my brother could come home, I feel our priority as a Nation should and must be for Our Troops who are serving our Nation now!!! Take these millions and take care of our wounded, whether physical or mental. The government needs to be held accountable for the mistreatment of our troops and veterans who are living, rather than searching for the remains of fallen Heroes , who are beyond our help.
Sister to L/Cpl Virgil B. Terwilliger
HE WILL BE RAISED WITHOUT HIS WONDERFUL FATHER NOW. THE LEAST THE MILITARY COULD DO WOULD BE TO PICK UP THE TAB. IT IS DUE TO THEIR OWN NEGLEGENCE AND SCREWED UP SYSTEM THAT THIS BOY IS NOW FATHERLESS. NOW PROVIDE HIM WITH EVERYTHING HIS FATHER WOULD OF GIVEN HIM. STOP HIDING BEHIND SOME OUT OF DATE, SAD, PATHETIC DOCTRINE AND STAND ACCOUNTABLE. YOUR NATION IS NOW WATCHING!!!
TALLIA03@COMCAST.NET
IN THE STORY HIS SISTER LIZ SAID THAT HE DID NOT WANT THIS TO BE THE END OF IT. YES, DON''T LET THIS BE IT. CONTACT EVERYONE IMAGINABLE! OPRAH, DATELINE, 20/20, 60 MINUTES, FOX NEWS, CNN, NBC NEWS, ABC NEWS, DIANE SAWYER, BARBARA WALTERS, AND EVERYONE ELSE. NO JOKE. TRUST ME AS COMPELLING OF A CASE AS THIS IS IT NEEDS TO BE OUT THERE. ALOT OF THESE NEWS MEDIA OUTLETS WILL BE MORE THAT HONORED TO KEEP CARMELO''S FIGHT ALIVE. ALOT OF PEOPLE I HAVE SPOKEN TO SAID THAT THIS WAS THE MOST COMPELLING STORY THEY HAVE HEARD AND SEEN. THE CONTENT THAT WAS CAPTURED ON FILM THAT DAY IS PRICELESS IN TERMS OF SHOWING JUST HOW BAD HE SUFFERED DUE TO NEGLEGENCE.
THE MORE THIS STORY IS AIRED THE MORE THE MILITARY IS SHAMED INTO DOING SOMETHING ABOUT THE SITUATION. IF YOU DON''T KEEP AIRING THIS STORY THEN I AM PROBABLY AFRAID THAT IT WILL GET SWEPT UNDER THE RUG LIKE ALL OF THOSE OTHER CASES.
TO CARMELO''S SON:
I WAS AT LEAST HAPPY TO LEARN HE HAD A JUNIOR. NO ONE DESERVED A LITTLE MAN MORE THAN HIM. I KNOW YOU MUST HAVE HAD THE BEST DAD IN THE WORLD.
This solder was right up front every day. Thankyou very much now go back to your Civ. job with out your readustment time. He relly didn''t have a choice, he had bills to pay and needed the money.
Has far as this young Marine, that just goes beyund words.Our wonderful congress men got thier $5,000 a year raise that they oted in them self. They all should be kicked out of tier service wth out any med, or retire ment pay
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