Military Can't Be Sued For Malpractice

CBS Evening News: Congress Takes Up The Case Of Sgt. Carmelo Rodriguez, Which We First Brought You Last Year

(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.
Find out how to make your 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.

[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/

[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.

[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.

[mejordelahistoria]

nobody told them to go to iraq, it's a volunteer army.

[caligula1--2008]

"My father, a retired military officer, had significant treatment from the military at the end of his life, I would rate my father's care as 110%. I too, when I was a dependent, received extremely good care at military facilities. "

Let me guess, this was prior to 1996?

In 1996 President Clinton suggested shifting care for elderly, non service connected disabled vets, and indigent vets from the medicare system to, in part, the VA system. The opening of the VA system would be accompanied by a shift in Medicare funds. By executive order he removed the priority system of the VA, but for some reason the bill that was needed to shift the Medicare funds never made it out of committee. Golly, imagine that. In the meantime until Bush closed the system again, without ANY publicity, the VA caseload tripled with no increase in funding.

President Obama recently suggested again doing away with the priority system AND opening the system to ALL veterans making less than $30,000 a year or so.

Needless to say there is little talk of increasing funding, or for that matter addressing all but a token number of concerns raised by the committee which investigated VA effectiveness from its inception until that date (2007 I believe). Among other things, including a complete revamping of the VA healthcare system JUST for service connected disabled vets and retired vets, was increasing disability payments amounts by a minimum of 30%. The increase we GOT was 5.9%, as the VA system was linked to FICA COLA adjustments after the government noticed sometime in the 70's or 80's that the amounts hadn't been changed in almost a decade (and no, they never made up for that decade of no adjustments).

Yeah, from your government to those that depend on that "contract" that amounts to long term disability insurance for military personnel. Basically the care we get is almost IDENTICAL in quality to that one could expect at any Eastern European charity hospital at this point. The ONLY reason the VA was STARTING to catch up was the die off in aged WWII and Korean era vets. Now President Obama is apparently going to reopen the floodgates and again see how far he can get the military mule to carry his crazy ass universal healthcare agenda.

[apndrgn]

Most people don't realize it until its too late, but pets are also highly susceptible to skin cancer. The nose, ears of all dogs should be coated every two hours with sunblock if outside.

[apndrgn]

actinic keratosis turn into skin cancers at a rate of between 1 to 10 % a year, especially in desert regions. Those pushing great government care are desk jockeys in desert combat areas keeping their skin ultra violet free, and hording the sunblock.

[koko98-2009]

The U.S. government to it's defenders "THANKS FOR NOTHING".

[comfortmd1]

It's free medical care.
Posted by nancy_naive at 8:04 AM : Mar 25, 2009

nothing is ever free

[barbaram99]

So yes the can be.. I am just a lay person.

[bytheway59]

the doctors can be and should be court marshalled for failing their duty, that really is the apropriate action. several years back i was an inpatient at a VA facility and shared a room with an Army NCO that was in the final stages of terminal pancreatic cancer, an Army doctor failed to properly diagnose his condition, until it was to late. It is a sad way for our brave soldiers to die.

[mjvwsr]

when we have government health care we'll all get this great treatment

[Ichabod09]

Ah yes... the good old days.

Definition, "The Draft", when the white men force the black men to kill the yellow men to protect the country they stole from the red men.
Posted by nancy_naive at 8:07 AM : Mar 25, 2009

It was also the good old days when were obscene and not heard.

[hamiltongrad]

Getting back to Bonuses... How many at CBS get Bonuses, and what % are women ?

[TheAccidentalActivist]

Read the following statement from Ivette Rodriguez:

http://judiciary.house.gov/hearings/pdf/Rodriguez090324.pdf