View Full Version : Supreme Court To Reconsider Lawsuits Against The Military
SouthernDZ
06-23-2011, 07:25
I suppose this is a good thing; however, the timing is particularly bad as even the military won't be able to handle the flood gate this precedent may create right now.
McClatchy Newspapers (mcclatchydc.com)
June 22, 2011
Supreme Court To Reconsider Lawsuits Against The Military
By Michael Doyle, McClatchy Newspapers
WASHINGTON — Dean Patrick Witt died unnecessarily at an Air Force base in California seven years ago. Now, his name momentarily haunts the U.S. Supreme Court.
On Thursday, justices will consider the death of Dean Witt and its connection to the controversial legal doctrine that shields military personnel from lawsuits. Lawyers, loved ones and Pentagon officials alike are all coming to attention for the late Air Force staff sergeant.
"If the court chooses to re-examine this issue, thousands of service members would finally have the opportunity to have their day in court," said Laurie Higginbotham, an attorney for Witt's widow, Alexis.
The case called Witt v. United States challenges a 61-year-old rule that protects the federal government against lawsuits by military personnel injured on active duty. Those protected can include, as in Witt's case, military nurses and doctors who may have acted negligently.
The lawsuit immunity potentially saves the federal government from having to pay hundreds of millions of dollars annually. It avoids judges second-guessing military decisions. It is "woven into the fabric of the law," the Obama administration's chief lawyer says.
But sometimes, it also compels judges to lament their own rulings.
"A 25-year-old man who devoted his life to serving his country is dead through no fault of his own, and his widow cannot sue to recover for her loss," California-based U.S. District Judge John A. Mendez wrote in February 2009 when he reluctantly rejected a Witt family lawsuit.
The result, Mendez added, "can only be characterized as unfair and irrational." Nonetheless, Mendez concluded that until a higher court changes the rules, he had to turn away the claims of Witt's loved ones.
In the closed-door session Thursday, Supreme Court justices will decide whether to accept the Witt family's case and conduct a full hearing next term. The odds are against the family. The court accepts less than 5 percent of cases filed by attorneys; a decision should be made public Monday.
Still, some advocates insist the Dean Witt case offers a decent chance to render military officials financially liable for their mistakes.
"I'm hopeful," said attorney Allan S. Haley, who filed a legal brief for Veterans Equal Rights Protection Advocacy in support of the Witt family. "This is the first fully briefed petition on the (issue) in a long time."
In October 2003, Witt was at Travis Air Force Base northeast of the San Francisco Bay Area, preparing to move his wife and two young children from Utah. He began feeling severe pain in his lower right abdomen and went to the base's medical center, where doctors diagnosed him with acute appendicitis.
On Oct. 10, 2003, doctors operated successfully. Then, Witt began having difficulty breathing. He turned blue. A nurse mistakenly tried to use pediatric equipment to open his airway. It failed.
The nurse next found the right breathing tube, but placed it in Witt's esophagus rather than his trachea. For several crucial minutes, no oxygen reached Witt's brain. He entered into a persistent vegetative state and died on Jan. 9, 2004, after being disconnected from life support.
The supervising nurse subsequently admitted error and surrendered her license. If Witt were a civilian, his family probably would have a slam-dunk malpractice case.
But in a trio of 1950 cases, one involving an Army surgeon leaving a 30-inch towel inside a patient's abdomen, the Supreme Court specified that military personnel could not sue for injuries occurring "incident to service."
"Medical malpractice suits by active-duty service members also could substantially disrupt the military mission ... requiring the military to reallocate scarce resources away from compelling military needs," Acting Solicitor General Neal Katyal argued in a legal brief this year.
Katyal further noted that the Witt family already had received federal benefits: $250,000 from life insurance, a $100,000 death payment and tax-free monthly payments for Alexis Witt and her two children.
Separately, Witt is suing Prudential Insurance Co. for how the insurance money was handled.
Congress could change the rules, but it would be expensive. Legislation that would allow medical malpractice lawsuits by military personnel would result in an additional 750 lawsuits annually and cost the government an estimated $2.7 billion over 10 years, according to the Congressional Budget Office.
Haley acknowledged the potential costs, while insisting that the rules must change.
"It's not Congress's job to fix this," Haley said. "This is a judge-made problem, and it should be fixed by judges."
http://214.14.134.30/ebird2/ebfiles/e20110623827781.html
1stindoor
06-23-2011, 07:51
I suppose this is a good thing; however, the timing is particularly bad as even the military won't be able to handle the flood gate this precedent may create right now.
I'm not sure I agree with the decision to reopen this "battle." Like you said, the flood gates will open and we'll see lots of lawyers contacting lots of families trying to reopen old wounds.
greenberetTFS
06-23-2011, 10:47
Separately, Witt is suing Prudential Insurance Co. for how the insurance money was handled..........:( This in itself is a problem that needs to be addressed........:(
Big Teddy :munchin
Who once said, "follow the money". ???
To stir the pot just slightly,
The case called Witt v. United States challenges a 61-year-old rule that protects the federal government against lawsuits by military personnel injured on active duty. Those protected can include, as in Witt's case, military nurses and doctors who may have acted negligently.
Another layer down, is a lawsuit that lists my platoon sergeant as negligent in putting my life in harms way because he ordered me to take to open field to stop the enemies gun. But wait, he is enlisted like me, and he was only following orders from the young Platoon leader, aged 23, 2LT.
Why not just list the CO, BN CDR, or LTG theatre CINC?
Of course, I made the objective and not injured, but what's in it for me?
Did not others try to take "W" to court for sending troops to A-stan and invading Iraq?
Let the law stand as is....more damage will ensue if the lawyers have their way and it is not justice to them but a cash Govt. cow.
Who once said, "follow the money". ???
To stir the pot just slightly,
The case called Witt v. United States challenges a 61-year-old rule that protects the federal government against lawsuits by military personnel injured on active duty. Those protected can include, as in Witt's case, military nurses and doctors who may have acted negligently.
Another layer down, is a lawsuit that lists my platoon sergeant as negligent in putting my life in harms way because he ordered me to take to open field to stop the enemies gun. But wait, he is enlisted like me, and he was only following orders from the young Platoon leader, aged 23, 2LT.
Why not just list the CO, BN CDR, or LTG theatre CINC?
Of course, I made the objective and not injured, but what's in it for me?
Did not others try to take "W" to court for sending troops to A-stan and invading Iraq?To extend this hypothetical, who would be called upon to testify as expert witnesses? Would BTDTs be compelled to testify against their brothers in open court? What types of documents would be subpoenaed as a part of discovery?
How would the prospect of lawsuits impact the military effectiveness of the armed forces? Would good men and women think twice before dedicating themselves to armed service if they had to worry about malpractice lawsuits on top of everything else?
The Reaper
06-23-2011, 21:24
I'm not sure I agree with the decision to reopen this "battle." Like you said, the flood gates will open and we'll see lots of lawyers contacting lots of families trying to reopen old wounds.
Concur.
TR
I have mixed feeling on the issue. There are some military doctors that should be held accountable for blatant incompetance.
I suspect you are correct...but do we want to foist the same cost overhead on the military budget that exists in civilian medical care? How many million dollar law suits
can we pay out without affecting the whole military med system.... you can't put Pandora back in the box once out.
It is not perfect and mistakes are made but I will take the med care I recv'd on active duty, trauma care etc. 10fold over any civvy care I've gotten.
....Would good men and women think twice before dedicating themselves to armed service if they had to worry about malpractice lawsuits on top of everything else?
A lot of good folks think twice about "contracting" work, because they knew they are not protected under UCMJ, etc.
Concur.
TR
True, nothing good will come of this. Lawyers will make lots of money. All from our pockets. The welfare of the families they represent will be of little importance.
craigepo
06-24-2011, 08:24
Question: Is there any sort of review of medical care in the military at present, specifically concerning a hypothetical report of substandard care?
...is there any political gain to be made from this?
If the answer is "yes" then no one should be surprised if there isn't a few politicians lining up to carry the torch for it.
If it looks like a few votes are in the balance or a big campaign donation, then plan on seeing the military get portrayed as a "big business" that can afford to 'pay' for its mistakes.
...just my two cents, I could be wrong.
This opens up an enormous can of worms.
Say that the DoD determines a Standard of Care and appropriate treatment X for condition Y, with all the handy flow charts.
Now imagine that an 18D slathers your wound with honey to stave off infection in your gun shot wound in some shit hole country where no advanced medical care is available, and casevac is 96 hours away at best. Lets say you die from a condition, not worsened by the 18Ds care.
Your family is horrified and sues, and their friendly trial lawyer has a field day with said 18D's "horrifying treatment, listed nowhere in any medical textbook used by medical schools"....
Probable? Can't answer that. Possible? You betcha. This is a Bad Idea.
This opens up an enormous can of worms.
Say that the DoD determines a Standard of Care and appropriate treatment X for condition Y, with all the handy flow charts.
Now imagine that an 18D slathers your wound with honey to stave off infection in your gun shot wound in some shit hole country where no advanced medical care is available, and casevac is 96 hours away at best. Lets say you die from a condition, not worsened by the 18Ds care.
Your family is horrified and sues, and their friendly trial lawyer has a field day with said 18D's "horrifying treatment, listed nowhere in any medical textbook used by medical schools"....
Probable? Can't answer that. Possible? You betcha. This is a Bad Idea.
excellent point...Non Doctor DOD med personnel, medics-nurses- etc have much more latitude to treat/care for etc than in the civvy world...huge dif...that would look very suspect in a court of law with civilian jury and 'expert' medical witnesses
craigepo
06-24-2011, 22:45
This opens up an enormous can of worms.
Say that the DoD determines a Standard of Care and appropriate treatment X for condition Y, with all the handy flow charts.
Now imagine that an 18D slathers your wound with honey to stave off infection in your gun shot wound in some shit hole country where no advanced medical care is available, and casevac is 96 hours away at best. Lets say you die from a condition, not worsened by the 18Ds care.
Your family is horrified and sues, and their friendly trial lawyer has a field day with said 18D's "horrifying treatment, listed nowhere in any medical textbook used by medical schools"....
Probable? Can't answer that. Possible? You betcha. This is a Bad Idea.
"Standard of care" is a relative term. A paramedic in a ditch is not held to the same standard of care as a physician at the Mayo Clinic.
This serviceman died from an appendectomy. Let me say that again: this serviceman died from an appendectomy. No brain surgery, no bullet wounds. This is a procedure that is usually done with a freaking scope. He was not in a warzone MASH hospital---he was stateside. Moreover, he didn't die from surgery complications. He died because the people in charge of his care failed to maintain his airway, which caused braindeath. Is there anybody here who didn't learn the necessity of maintaining an airway? "ABC's"? Hell, this is taught during EIB training. And nurses and physicians in a stateside Air Force hospital can't get this done?
There is a bill that has been brought before Congress with the following provisions: The measure would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice. It contains an exception for combat-related injuries and requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury.
I am attaching a link to the article, so that you might read some of the comments from former service members who have had some horrendous care.
http://hamptonroads.com/2009/05/service-members-have-little-recourse-against-malpractice
If the Supreme Court would allow these suits to be brought, the would have to be filed under the Federal Tort Claims Act. These tort claims are different than state law claims. A few of the differences are: 1) the plaintiff has no right to a jury trial, so damages are determined by a judge; 2) the plaintiff's attorney's fees are maxed-out at 25%; 3) the statute of limitations is very short.
Like many of you, I am quite hesitant to open the litigation floodgates on this issue. However, if servicemen are dying because nurses and physicians in stateside military hospitals are so inept that they can't maintain an airway, something needs to be done.
frostfire
06-25-2011, 01:38
Question: Is there any sort of review of medical care in the military at present, specifically concerning a hypothetical report of substandard care?
http://www.jointcommission.org/
WAMC had to go through this a few months ago.
Had discussion about this with the ACLS director some time ago. Fear of lawsuit and losing license cause some to not go when Code Blue is called.
This is why I prefer to work downrange. There's so many moving variables (swiss cheese model) that are simply lawsuits waiting to happen.
I'm not going to second guess what happened, but in SF, CA nurses are allowed to put advanced airway? Was the nurse the only available personnel?Is a failed attempt worse than no attempt? The fear of doing something wrong may lead to doing nothing. Then what, lawsuit for pt abandonment. It's a lose-lose situation
In OBGYN, parents can sue any perceived mishaps during delivery until the child turns 18. I concur, once the law is changed, the flood of lawsuits might as well put military to bankcruptcy
I think we need to be careful when we use the term "standard of care". Standard of care is a legal term not a medical one. It is decided by a particular jury about care a particular patient received at a particular time. I'm sure the lawyers can explain this more in depth, but our various specialty organizations recognize that "Guidelines" are created for a more standardized and evidence based approach to patient care. These same organizations also recognize that it is not posssible to develop a "cookbook" approach to every situation and patient.
Thanks.
Wook
"Standard of care" is a relative term. A paramedic in a ditch is not held to the same standard of care as a physician at the Mayo Clinic.
This serviceman died from an appendectomy. Let me say that again: this serviceman died from an appendectomy. No brain surgery, no bullet wounds. This is a procedure that is usually done with a freaking scope. He was not in a warzone MASH hospital---he was stateside. Moreover, he didn't die from surgery complications. He died because the people in charge of his care failed to maintain his airway, which caused braindeath. Is there anybody here who didn't learn the necessity of maintaining an airway? "ABC's"? Hell, this is taught during EIB training. And nurses and physicians in a stateside Air Force hospital can't get this done?
There is a bill that has been brought before Congress with the following provisions: The measure would allow lawsuits on behalf of military personnel who are killed or injured by medical malpractice. It contains an exception for combat-related injuries and requires that any paid claim be reduced by the amount of any other government compensation resulting from the injury.
I am attaching a link to the article, so that you might read some of the comments from former service members who have had some horrendous care.
http://hamptonroads.com/2009/05/service-members-have-little-recourse-against-malpractice
If the Supreme Court would allow these suits to be brought, the would have to be filed under the Federal Tort Claims Act. These tort claims are different than state law claims. A few of the differences are: 1) the plaintiff has no right to a jury trial, so damages are determined by a judge; 2) the plaintiff's attorney's fees are maxed-out at 25%; 3) the statute of limitations is very short.
Like many of you, I am quite hesitant to open the litigation floodgates on this issue. However, if servicemen are dying because nurses and physicians in stateside military hospitals are so inept that they can't maintain an airway, something needs to be done.
I'm not denying that there have been specific instances of horrible medical care in military treatment facilities, and I understand the desire to hold doctors and nurses accountable for their actions, but I still disagree with this.
Military doctors have leeway right now to provide care that is not considered propper in civilian circles, or has not been approved by the FDA. Pulmanary bypass machines for blast lung patients going from Balad to Germany for example. Or the use of Factor VII for hemmorhage control, which has been effective but isn't FDA approved. Fentanyl lollipops for combat pain control are designed for cancer patients; the military uses them off-label and without FDA approval. The FDA has actually tried to stop that particular practice at one point.
Hell even the heavy use of early touriquet use advocated in the Haagman-Butler paper was heavily criticized in civilian circles, before the data from the Iraq war backed up their ideas.
Subjecting the military to Federal Tourt Law would put a giant chill in every doctors spine who has great ideas that arent FDA approved, but work. Any one of those ideas would be cannon fodder to any competent trial lawyer, regardless of whether they First Did No Harm or not.
I'm not going to second guess what happened, but in SF, CA nurses are allowed to put advanced airway? Was the nurse the only available personnel?
Coulda been a Nurse Anesthetist.
Richard
alright4u
06-25-2011, 17:44
I ask as some of us have been appointed as investigating officers for tragic deaths.
I vividly recall being the investigating officer after a rapelling death in late 69-early 70. I was a CPT in A CO 6th SFGA just trying to do my job and get the facts plus prevent any future such deaths. A fine SFC fell some 75 feet from the chopper with nothing but a loose rope. He fell to his death. I had the FM out and asked all the NCO's if the rig was right? Hell, the safety officer for C or D Company was a 2LT. I could not really say any man screwed up as the rope just came loose from the doughnut ring. Obviously someone screwed up, but; SF training is not 100% safe, never has been, and; I do not think ever will be. The man had a 27 year old wife. He was a 28-29 year old SFC. I did my job, sent the report to the Group CO, then I heard nothing.
That was like the investigations we did when a USSF RT man was KIA and the INDIG scattered to the wind only to be found the next day later on. I can only state I am no man's judge.
The Reaper
06-25-2011, 19:21
Lawyers will make money.
Politicians will get some money from the lawyers to make their jobs easier/more lucrative.
Some military doctors might make more money, but there will be fewer and they will be harder to get.
A few patients/families will make money.
More military lawyers will have to be hired to handle these cases.
There will be less money for soldier medical care as a result.
Taxpayers will lose out, guaranteed.
TR
Lawyers will make money.
Politicians will get some money from the lawyers to make their jobs easier/more lucrative.
Some military doctors might make more money, but there will be fewer and they will be harder to get.
A few patients/families will make money.
More military lawyers will have to be hired to handle these cases.
There will be less money for soldier medical care as a result.
Taxpayers will lose out, guaranteed.
TR
Agree, the 2/3rd order of effects on this would be catastrophic for Military medicine
alright4u
06-26-2011, 04:49
Once the door is opened, claims will creep into other areas of military life then just medical. At present the VA allows 100% ratings for men who were given substandard medical treatment and were further disabled under the Federal Tort Claims Act.
An extremely well educated man was left with a serious staph infection by the VA after lumbar spine surgery. He is required to use oxygen the rest of his life. All he could get was 100%. He does not complain. He already had a PH or two.