A Question Of Care: Military Malpractice?

One Marine Served His Country With Care. Was His Cancer Misdiagnosed, Leading To His Death?

(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.

[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!!!!

[WOW312002]

William O. Wheat, et al., Plaintiffs-appellees, v. United States of America, Defendant-appellant
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 [e-mail]

[vickilmj]

My son Staff Sgt Rodney R. Ryle went in the Air Force right out of High School and spent 17 1/2 years in the military. He came in for Christmas in 2000 and when he came out of the Bath Room after showering, my Mom asked him what that was on his back. She told him he needed to go to the hospital when he got back to base and have it checked out. He said it must be nothing or else the Drs. would have mentioned it during his physicals. I worked in medicine for a number of years and I knew it was bad. Anyway, my Son died May 24,2002 on Memorial day. He was stationed in Texas when diagnosed and it took our local congressmen to get him transferred closer to home, Wright Patterson AFB in Dayton, Ohio. Until then they were cutting on him and sending him to his apt. with percocet and morphine alone. They told me they assumed he had family there with him. We couldn't even get him to answer the phone. When they transfered him I went to stay with him. One thing the Onocologist told me at the base hospital was " I am so sorry, but for Rodney to have had a chance to beat this we would have had to have caught it maybe 10 years ago." I said " Well, you have had him him for 17 1/2 years and have given him physicals each of those years." He said" yes but Derm wasn't a priority then, it may be of some comfort to know it is now" After Rod passed and everything was over except for the nawing cancer that eats my heart out and will for the rest of my life, I got out all of his military records and his PHYSICALS WERE ALL MARKED SKIN, CHECK...MOLES,CHECK...NO OUTSTANDING MARKS. They didn't even look because an 82 year old Grandmother noticed it from all the way across the room, when she wasn't even supposed to be looking for it. I am so bitter. Rodney went from 180 lbs to 139 when he passed. I prayed for it to end as quick as God could allow it because of a man I took care of when I was a nursing assistant and I knew I couldn't bear to see him suffer any more than he did. I saw the pictures of Carmelo and it felt like It was hapening all over again. Please give my message to Carmelo's family and tell them if there is anything I can do to help them..just ask. This will never be over for Carmelo's mother, no one will hurt as deep or as long as she but God will be the only one that can help. My prayers are with the family. [e-mail]

[charlessorrow]

I have never been so discusted.How can we have pride for are country when we
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.

[projmngr1]

Sirs,

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.

[WOW312002]

HELLO I WOULD LIKE TO FIND OUT MORE ABOUT THIS CASE. SAYING THAT THEY CAN NOT DO NOTHING ABOUT THE MALPRACTICE A BUNCH OF CRAP. MY DAD WAS INVOLED IN SOMTHING LIKE THIS. SO IF SOMBODY FROM THE FAMILY IS READING THIS PLEASE POST BACK SO WE CAN TALK THIS IS NOT A JOKE. THANK YOU ALOT

[vetsmom]

God Bless Carmelo and ALL the young warriors that have faced such shameful treatment. It is no time to single out, but a time to change these systems and political negligence that Congress and the VA have allowed to take place. This country needs to take responsibility and set these matters as a number one PRIORITY. Our country is better than this!!! Congress should think about taking the recent pay raise they received and pay for Carmelo''s funeral that the military NEGLECTED to pay for.

[vetsmom]

God Bless Carmelo and ALL the young warriors that have faced such shameful treatment. It is no time to single out, but a time to change these systems and political negligence that Congress and the VA have allowed to take place. This country needs to take responsibility and set these matters as a number one PRIORITY. Our country is better than this!!! Congress should think about taking the recent pay raise they received and pay for Carmelo''s funeral that the military NEGLECTED to pay for.

[bleschke]

I was so sick at heart when I saw this story. It is all I could think about today and felt compelled to make a comment.

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

[tallia03]

KEEP CARMELO''S FIGHT ALIVE AND LET''S MAKE SURE HIS SON GETS THE BENEFIT''S, GRANTS, AND EVERYTHING ELSE HE DESERVES.

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!!!

[e-mail]

[tallia03]

I WENT TO SCHOOL WITH CARMELO. I JUST CAN''T BELIEVE HE DIED. AND DUE TO GROSS NEGLEGENCE AT THAT. I WAS WATCHING THE NEWS WHEN A CLIP CAME ON ABOUT HIM AND THEY WOULD BE SHOWING THE STORY SOON. WHEN HIS STORY CAME ON I WAS JUST HORRIFIED. HORRIFIED!!! I WOULD LIKE THE WORLD TO KNOW HE WAS ONE OF THE NICEST PEOPLE YOU WOULD EVER MEET. SMART, FUNNY, ARTISTIC, CARING, AND VERY DRIVEN.

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.

[graphicbratt]

this is such a sad story.. Mine is nothing compared to what this family has gone thru but has alot to do with malpractice and Drs... but it all goes hand and hand with politics.. and just goes to show you who can you trust.. def not our goverment the only thing the two actually care about is protecting thier own butts .

[dogwood14]

This is of nosurprise, a young solder that I know just cam back from from his 2nd tour in Iraq, and 8 mounts in Cosivo S/P. He was told that on this last return that he should take 3 months off Hatford Police officer and he would recieve his military pay. It seems as though that is nologer in play - seeing that the Gov. doesn''t have the funds for that program any longer.
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

[snowball122]

This is a tragic loss and my heart goes out to the family and friends of this young man.Unfortunately it but another tragic example of the failure of the military health care system and our government to provide the promised health care.More information on this subject can be found at groups.yahoo.com/groups/mrgrg-ms

[mabaynes]

I watched this story when it first came out and I cannot even describe the emotions I felt. Just from watching a 10 minute story, people could see what a beautiful soul he was. I want his family to know that I am truly inspired by Carmelo''s courage. I will never forget his story and pray that it brings a change to a law that makes absolutley NO sense! I truly believe his life will save the lives of others.

[tlw0723]

This story makes me feel bd to say I am an American! These young men and women are in the military to protect us and yes many hae falling in the line of duty, but no military person should ever ave to go through what this YOUNG man went though He and his family should be very proud that they brought this story to everyone''s attention and EVERONE needs to contact their goverment officials and let them know how outraged we are over this. THIS SHOULD HAVE NEVER HAPPENED!! God bless.