Military Can't Be Sued For Malpractice

(CBS)  About a year ago, CBS News reported on the story of a Marine, Carmelo Rodriguez, who died of skin cancer that military doctors noticed but left untreated.

Rodriguez's family cannot sue the government for malpractice - the law won't let them. A year later, CBS News chief national correspondent Byron Pitts has a follow-up on our exclusive investigation.

Today the Rodriguez family from upstate New York came to Washington for the very first time.

Yvette Rodriguez, sister of the fallen Marine Corps sergeant, and her family were there to keep a promise.

They were here to keep a promise to their brother.

CBS News was invited to the Rodriguez home 15 months ago when Carmelo's family was standing vigil at his bedside.

"He said, 'Don't let this be it. Don't let this be it. Fight,'" sister Elizabeth Rodriguez recalled. "That's what we're doing. We're going to fight for him."

They told us the story of a strong and healthy platoon leader in Iraq. They say a military doctor there misdiagnosed the sergeant's skin cancer, calling it instead "a wart."

But CBS News obtained Rodriguez's medical report from 10 years earlier when a military doctor had noted his skin as "abnormal." In further details, he describes it as a "melanoma" on the right buttocks. But doctors did not inform Rodriguez of the condition nor did they recommend any follow up.

Eight years later, the melanoma had spread. By time CBS News met Sgt. Rodriguez, the once fit, gung-ho Marine had lost nearly 100 pounds. As we were preparing to interview him, he died.

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Read Byron Pitts' original report on Carmelo Rodriguez.
Find out more about how Pitts reported this story at Couric & Co.
voice heard on this issue.

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His death sparked a rush of e-mails, letters and calls to CBS News and members of Congress. Due to what's known as the Feres Doctrine, Rodriguez's family, including his 8-year-old son, cannot sue the military for medical malpractice.

The Feres Doctrine, a 1950 Supreme Court ruling, forbids 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. One argument - that allowing the lawsuits would disrupt military order and discipline.

Now, New York Congressman Maurice Hinchey has proposed a bill, named for Carmelo Rodriguez, to change the doctrine, which led to today's committee hearing.

"This bill is about holding our military accountable for its actions" Hinchey said on the floor of Congress last summer.

Committee members were shown the original CBS News report on Rodriguez's plight.

Still, the Feres Doctrine has its supporters, like Maj. Gen. John Altenburg, Jr. (Ret.). He said the doctrine should remain in place but added, "What should happen for people like Staff Sgt. Rodriguez and his family and others similarly situated is that the benefits system that we do have should be greatly enhanced."

The key testimony of the day came from Yvette Rodriguez.

"Carmelo wanted his story to be heard, even if his life couldn't be saved," she said. "He wanted to ensure that what happened to him could not happen to another service member."

Today's hearing was just the latest step in a long legislative progress. It could be months before the Carmelo Rodriguez bill ever reaches the floor of Congress for a vote. In nearly 60 years, no one has ever successfully challenged the Feres Doctrine. But no ever made it this far either.

[CPTG]

60 Minutes has done a GREAT DIS-SERVICE to America's Reservist Men and Women by perpetuating the MYTH that soldiers/sailours/airmen and marines can not seek redress through the Federal Torts Claims Act (1946)28 U.S.C. 26 1, 28 U.S.C. A.2671 (1946). Appearently Mr. Pitt and his staff failed to consult BROOKS v. UNITED STATES 337 U.S. 49 (1949)!!!

Government Lawyers LOVE shouting FERES DOCTRINE because like SHOUTING Fire in a Crowded Theatre or AIDS on a closed Porn Film set---they do it to deliberately involke PANIC and Disillusionment by the wronged Soldier(s) and their Plaintiff Lawyers.

So what IS the FERES DOCTRINE and how does it apply to we RESERVISTS?!!! THe FERES DOCTRINE is an amalgamation of THREE Cases that went before the US Supreme Court, these being FERES, Executrix v. United States, Jefferson v. United States and United States v.Griggs, Executrix, CONSOLIDATED; 340 U.S. 135, 715.ct 153; 95L Ed. 152; 1950 (04DEC1950) US Lexis 1352. The FERES Doctrine (also known as the 'Dead Baby Defense) is a THREE PART MEANS TEST to restrict a service member's access to the FTCA.

"IF" a soldier was on ACTIVE DUTY ORDERS AT THE TIME OF HARM "AND" the HARM was an act of NEGLIGENCE "AND" the harm was incidental to Military Service "THEN" FTCA redress is denied (meaning you still can file an ART138 and ART139 against said scumbag(s). ALL THREE IF, And Ands MUST be present for the Government to succeed on their FERES DOCTRINE CHALLENGE---Have One IF and One And or TWO ands but no IF and the challenge fails!!! We computer geeks call this an 'IF-And-And' Statement (condition).

Now lets fold BROOKS v. US into the mix. In JAN 1945, Old Man Brooks and his two sons,on FURLOUGH, were driving through the dark Georgia backroads on a rainy Night. As they drove through an intersection, A civilian Teamster, driving an Army Truck, blew the light and smacked Old Man Brook's car, killing one son instantly and injuring Old Man Brooks and the other son. Brooks sued, the Army fought it and it went to the US Supreme CT (Frankfurter Court?). The court found on behalf of Brooks, the case was returned to Georgia where the Army settled out of court.

The Court acknowledged that PFC Brooks was killed and his family injured as the result of Army (Driver) Negligence (tenate Two). But because both BROOKS sons were on FURLOUGH Status (Not AD) and they had nothing to do with the supply run mission (Incidental to Military Service), hence, they had the right to file an FTCA complaint.

Say your BN CDR, your Group CDR, Your RRC CDR and the USARC CDR wanted to screw you over like mine did and they pulled out all the stops to do it---you CAN Sue them for the violation of your 14th Amendment Rts, 10 U.S.C 1034 Army Whistleblower Protection Act and 10 U.S.C Ch47...Section 938 (UCMJ) rights, like I am doing. You are a reservist ONLY when you are on TPU Drill Status or school or whatever (orders must be cut including RMAs!!!). ANY TIME OUTSIDE OF YOUR TPU status and you are on FURLOUGH and not Active Duty!!! Of if you catch your Command doing criminal stuff against you or America---pop 'em for it like I am doing!!
ARMY REGULATIONS are not the discressionary rights of Colonels and Kings, they are the Rights CONGRESS GAVE YOU!!! If the Army followed ARMY REGULATIONS there wouldn't have been an Abu Ghrab, a Walter Reed Medical Scandal or a CPL Tillman Cover-up. If Pres. Bush followed the Geneva Convention, we would have never invaded IRAQ and consumed $3 Trillion dollars in debt ($1 Trillion weapons systems/parts replacement $1 Trillion in future health care costs/pay and $1 Trillion in Iraq/Afghanistan Development aide). CPTG

[hurtsoldier]

Let me give you a sample sequence of events.
"Doc, I got hurt and my knee won't bend."
"Here's a two day no-running profile and some asprin."
-1 week later-
"Doc... I'm still hurting and I can't put any weight on my knee..."
"Here's a three day no-running profile and some tylenol."
-2 weeks later-
"Doc, please... I'm limping all over the place and I'm in constant pain."
"Fine, here's a two week no-running profile, limited weight lifting profile, and some percocets."
-1 month later-
"Please sir... I need help. I can't function the pain is so bad."
"FINE, I'll send you for an X-ray."
"Thank you sir. And then?"
"And then what? You get the X-ray, then go back to your unit."
"But... isn't someone going to look at the X-ray?"
"Don't tell me how to do my job"
-3 years, cane, knee brace, several rounds of physical therapy and a prescription for Tramidol later-
"Please... I just want this pain to go away. This injury is destroying my life! I just want to get better! These pain pills whack me out so bad I can't function!"
"Well, we'll discharge you from the army."
"But... I'm too hurt to go back to my job from before the army. Can I please just have the knee replacement surgery?"
"No."
"Why not?"
"Because I don't feel like doing the paperwork. Here's your discharge."

Army medical has a simple rule. "If it doesn't bleed, swell or show on an X-ray, you're faking."

[USMarine12]

The above story is largely false. For one, No military doctor has the authority to "discharge" someone. That comes from the Command. They can help the Soldier medically separate, but that is a different process. I have been in the military a long time and this is what I see:

Young Army Members or Marines who are a product of their upbringing: i.e. whining, complaining, I want something for nothing people. My knee hurts too, but I know that is likely from all the training I do and all the running. What is a doctor going to do about it?? Do you uneducated idiots believe a miracle surgery exists to fix your freakin 'knee pain?'

Sure, if you have a torn ligament or something, maybe. But the majority of torn ligaments, in the military or civilian world, are NOT operated on. BECAUSE THEY HEAL.

The people who complain about Military Medicine are few. They are usually the guys that cannot hack it. They are the guys that would've pumped gas at my local Chevron, but someone joined the military.

If Feres Doctrine is taken away, good doctors that GIVE UP LARGE SALARIES IN THE CIVILIAN WORLD AND HARDLY SEE THEIR FAMILIES TO SERVE YOU IDIOTS will leave the Military. Why? Because every damn LCpl, PFC etc will sue for every time they feel 'entitled' to do so.

For those of you who believe your kids are dying for their nation and deserve better - do you even know how good their Medical Care really is. Sure, mistakes happen and things get missed. One reason is because the Government does not provide our Military Doctors what they NEED to take the best care of us.

In some units, ONE doctor takes care of hundreds of Marines or Soldiers. YES, they may miss something. It happens. Its called being human.

And it is sad. These doctors risk their lives and give up their salary and time with their family to take care of us. What the hell is wrong with you people???

If the Feres Doctrine is repealed, we will no longer have doctors int he Military. They will leave. And Military Health Care will no longer be available. Ok, LCpl whatever, have fun sitting at the local General Hospital ER for 12 hours waiting to be seen.

Enjoy.

Selfish, Entitled Morons.

[cbsorcable]

Suing the VA:
Malpractice against VA government employees (non-government employees sue directly)
? Must be filed under FTCA (Federal Tort Claims Act of 1946) (non-active duty), or
? MCA (Military Claims Act) for active duty personnel
? Must be filed in Federal court (though state law applies)
? Must file administrative claim form & allow government 6 months to respond; if under MCA cannot sue if claim rejected
? No jury trials; all cases before Federal judge
? Contingency fees limited to 20-25% by Federal law.

[Edfremer]

This is another victim of the poor medical care in the Military. Please read the story on Airman Colton James Read. This is the same Military hospital that Killed Dean Witt. This occurred at the David Grant Medical Center at Travis Air Force Base.

The family can not take action because of the Feres doctrine. It is time for congress to act.

http://cbs11tv.com/health/medical.mistake.military.2.1092872.html

http://www.coltonread.com/

[Dr_Benton_Quest-FACS]

As tragic as this story is, whether there's one death at a hospital or more than one is not the point. One death is one too many.

Unfortunately, there are 54,000 hospitals in the U.S. -- and there are approximately 98,000-101,000 reported cases of medical mishaps resulting in loss of life or limb EACH YEAR in the U.S. If you do the math, that means the national average is two a year for every hospital -- private and public as well as military.

As for the claim of "poor medical care in the Military," that statement is not valid either -- especially in light of what is happening in places like Iraq and Afghanistan. Those doctors, nurses and med techs who have contributed to the highest rate of survivability in casualties (and therefore the lowest number of fatalities) in the history of modern warfare are the very same ones who just weeks or months before were providing that same level of quality care in a stateside military facility.

If anything, there has actually been an improvement in medical care in civilian hospitals due to members of the military medical profession who have come out of those institutions.

And as for those who have chosen to stay in for 20 or 30 years as a career certainly are not doing it for the money or because they couldn't "hack it" in the civilian world; they do it because they are dedicated to caring for the American soldier, sailor, airman, Marine and Guardsman.

[fight4dean]

Senator Bennett, Senator Hatch and Congressman Matheson of Utah...

I clearly remember a conversation I had with Senator Bennett in 2005 who deferred me to Senator Hatch in order to ask for help in regards to my brother-in-law, SSGT Dean Witt. Senator Bennett stated that Senator Hatch knew more about the legal aspects in regards to the Feres Doctrine. Senator Bennett also informed me that the Feres Doctrine would never be changed without many voices...I see that the voices are growing my dear sir.... and getting louder at that. So...running again this year I see. Time is Short.

Congressman Matheson...you never got back to my family in regards to our request for help. No matter how much we continued to follow up...you ignored us. Did you think we would give up and forget SSGT DEAN WITT?

Senator Hatch....tell your assistant thank you for sending the letter to the pentagon on your behalf...guess they knew your words on paper meant nothing. I guess this is your attempt to help or your hope of making my family grow tired and quiet?

Recent documents have surfaced to prove that the individual who killed my brother-in-law, SSGT DEAN WITT also killed another young man, age 21 at the same hospital. Now this individual is free to continue to work in another military hospital? How many more will you allow this person to kill and continue to hide behind the Feres Doctrine?

I know how you all have voted on the Feres Doctrine in the past...no more excuses...quit deferring responsibilities to others, stop ignoring the truth and speak up for yourself and others you represent!

[TheAccidentalActivist]

My son Michael Fremer was killed at Fort Polk, La on 2/13/08 because of Army Negligence at the conclusion of a training exercise. The Army can not be held accountable because of the Feres Doctrine. This law needs to be changed. Why is the Army exempt from being held accountable for Negligence? Our young men and woman are risking their lives. This is how our country treats the soldiers and the families?

There are other cases that involve the feres Doctrine. Dean Witt died because of Medical Malpractice at the David Grant Medical Center at Travis Air Force Base. This is not an isolated case. There is plenty of Medical Malpractice in the Military. It?s just most families do not have the strength to fight like the Rodriguez or Witt families.

Also Marines being exposed to Toxic chemicals on US Bases. This happened at a base in ElToro, California. This is the Link to one story:

http://www.salem-news.com/articles/january142009/el_toro_1-14-09.php

The Military is exempt from being held accountable on all of these matters. The Feres Doctrine needs to be overturned

[icjunior97]

I was in the Navy for over 8yrs, yes most of the time the health care was fine. No complaints. But there are times that there are problems. The biggest problem is that these Doctors are never reviewed, and keep on practicing. I had a fellow sailor in my shop, who left arm start to swell. She kept going to our medical, and they kep saying it was ok. She asked several times for request to go the main clinic. They said she would be put on report and punished if she went with out the proper apporval. This went on for over 3wks. One night we took to a non-military ER, she had a blood clot and almost lost her arm. She ended up paying that bill herself, so she would get in trouble. No one would help her. It was sad to witness. This was in 2001, she still has problems with that arm. Navy never did anything.

[janissaries]

There are incidences of successful lawsuits against military medical doctors.

In the late 1980's there was a Chief Petty Office that was diagnosed with terminal cancer. He was misdiagnosed and after several physicals the cancer was never caught until it was too late. The Chief sued and was awarded $1 million.

So, do not let this news article or any military official tell you it can't be done.

In fact, don't ever let anyone tell you no. If you have an issue you go for it and let the results answer for you. Don't disqualify yourself before you even start or let someone tell you you can't do it.

Icjunior, the person you're talking about should have requested Captain's Mast. It takes an ultrasound to determine if there is a blood clot. Had that blood clot not been taken care of properly it could have busted loose and lodged in her lungs, then she would be dead.

When my first baby was born it was at the Naval Hospital in Bremerton,WA. The doctor was a Captain. My wife wasn't fully dilated but the doctor insisted on delivering naturally. The result is he completely tore up my wives cervix so that it wouldn't be able to hold another plug to successfully carry another baby again. She also had to have 140 stitches which made it extremely painful for her to have sex with me.

We didn't sue because we were told that we weren't allowed. But a couple years later that Chief Petty Officer won a lawsuit against the military doctors and won. So it can be done.

[TheAccidentalActivist]

Major Ronald Aquino,

Do you think this is the only case of Medical Malpractice in the Military? If you do a little research you will see countless case of Military medical malpractice. Most Families don?t have the strength to fight for their rights. It?s great the Rodriguez's family is fighting this law. Join the Army lose your civil rights. Is that your motto?

[jasmiron]

First, I would like to offer my condolence to the Rodriguez family.

As a soldier in the Army, the healthcare I've received have been great. As I read the article, I started wondering what happened in the years after the initial physical exam? If the words "abnormal" and "melanoma" appeared anywhere in my health record, that would cause me to have a great deal of concern. Subsequently, I would request for a second opinion. Just because we are in the military, it does not mean that we don't have the right to request for a second opinion. I have had two incidents that fall in this category. First, after arriving at my first duty station, I noticed a mole on my back that changed its appearance (it got larger). I was concerned enough to go to a Family Practice Physician at the hospital. I informed him of my concern and requested for a referral to Dermatology. I've never had a concern regarding my mole on my two previous physical exams, nor was it ever mentioned by the other physicians. I recieved the referral and the mole removed. After about a week, the results came in and it was negative. Second, I had an issue with my lower back. After three doctor's visits, I was still concerned that I was not getting better. I had x-rays and yet no explanation as to what exactly was wrong with my lower back. I requested for a second opinion and given a referral to have an MRI. After the MRI, the first physician (who referred me) sat me down to explain my situation. The x-rays did not reveal the extent of the damage to my L5-S1 spine region, but the MRI did. I now know because I asked. I offer these two examples regarding individual responsibility regarding health care in the military. Whether in the military or not, every person has the right to request for a second opinion for any medical condition.

Every transfer from installation to installation (permanent change of station or PCS), I often reviewed my own health record. Prior to my departure from the installation, I ensured all documents regarding the health care I've received there were included in my health record . Additionally, while assigned as Chief, Coordinated Care/Clinical Support Division, I assisted patients to address their concerns regarding medical treatment and offered them the opportunity for a second opinion. I believed then that our military providers are well trained and still believe in the health care they provide to all service members and their families are the same, if not better, as their civilian counterparts.

Again, it's unfortunate that this happened and wish the family well.

Ronald Aquino
Major, US Army

The views expressed in this posting are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.

[bajajohn1]

Somehow, the Freres Doctrine, which I am not sure was a Supreme Court decision or a legislative act has shielded the government from military members or their families to sue for defective jets and other armaments produced negligently. A citizen of the U.S. should not have to give up his constitutional rights when they put on the uniform. Hold the negligent accountable for their actions. No one should be above the law.