Military Faces Challenge to Malpractice Shield

Veterans, military families and others who oppose a decades-old law that shields military medical personnel from malpractice lawsuits are rallying around a case they consider the best chance in a generation to change the widely unpopular protection.

The U.S. Supreme Court has asked for more information from attorneys and will decide next month whether to hear the case of a 25-year-old noncommissioned officer who died after a nurse put a tube down the wrong part of his throat.

If the law is overturned, it could expose the federal government to billions of dollars in liability claims. That makes it highly unlikely a divided Congress desperate to cut expenses will act on its own to change what’s called the Feres Doctrine, a 1950 Supreme Court ruling that effectively equates injuries from medical mistakes with battlefield wounds.

The court case involves the death of Air Force Staff Sgt. Dean Patrick Witt, who was hospitalized in 2003 for what should have been a routine appendectomy at Travis Air Force Base in Fairfield, Calif. Following surgery, a nurse anesthetist inserted a breathing tube into his esophagus instead of his trachea or airway, depriving his brain of oxygen. Witt, of Oroville, Calif., died once his family removed him from life support three months later.

The nurse admitted her mistake and surrendered her state license. Federal courts denied the legal claim by Witt’s widow, saying their hands were tied by the Feres Doctrine. Witt’s family appealed, aiming to help other service members who get hurt in military hospitals.

“We labored on this for a long, long time, and we decided that the right thing to do here was to protect the rights of other people who go into the military and are signing away their rights to get good health care in the military system,” said Witt’s brother-in-law, Carlos Lopez, of Salt Lake City. “So we’re hoping, we’re praying, that his case could be the one that changes everything.”

The Feres ruling grew out of the Federal Tort Claims Act of 1946, which allowed lawsuits against the government for negligent acts under certain circumstances. Initially the law was interpreted to forbid lawsuits by military personnel and their families only for combat-related injuries and deaths, but the decision in Feres vs. United States _ involving a soldier who died in a barracks fire _ widened that exclusion to bar any lawsuits over injuries “incident to military service.”

Opponents argue that the act’s intent was never to prevent servicemen and women who are victims of medical malpractice and their families from seeking redress. The effort to change the law has gotten wide support from military officers and veterans groups, including seven that have filed briefs in Witt’s case to demonstrate the public’s interest to the justices.

“We’ve given them a case that presents them with the best opportunity to fix this in a long time,” said Jamal Alsaffar, whose Austin, Texas, law firm represents the family. “They’re the ones who broke it, so they are in the best position to fix it.”

At least one of the justices has criticized the law the last time a related case came before the high court. The 1987 case reaffirmed the military hospitals’ protections in a 5-4 ruling, with conservative Justice Antonin Scalia writing a harsh dissenting opinion.

“Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received,” Scalia wrote.

The law has survived myriad legal challenges over the years and various congressional efforts to overturn it. In 2009, a bill introduced in the House – in the name of a 29-year-old Marine sergeant and Iraq war veteran who died of skin cancer his family claims was misdiagnosed – got some traction, but not enough. Republican lawmakers derided the measure, saying that opening up the military to lawsuits would be expensive and benefit trial lawyers more than service families.

The Congressional Budget Office estimated it would cost the government an average of $135 million every year in claims. If the law were made retroactive, the estimated price tag was $2.7 billion over the next 10 years.

One of the bill’s sponsors, Rep. Maurice Hinchey, D-N.Y., argued that the cost would be less than estimated because the law would result in a better level of care in military hospitals and fewer negligence claims.

“If there were a normal element of responsibility there would be less carelessness,” Hinchey said.

Feres supporters also say doing away with it would give a soldier who loses a limb to a doctor’s mistake, for example, a shot at a lucrative lawsuit, while another who loses a limb in combat would be limited to whatever help the Pentagon provides.

“This could demean injuries suffered in combat by providing the soldier injured on the battlefield with administrative compensation while the soldier injured in a military hospital could seek a multimillion-dollar damage award in federal court,” U.S. Rep. Trent Franks, R-Ariz., said in a committee hearing on the 2009 bill.

In Bradenton, Fla., the family of Lance Cpl. Ezequiel Freire learned about the Feres Doctrine after the 20-year-old Afghanistan combat veteran died from an overdose of medication in a naval hospital in Portsmouth, Va. Freire’s autopsy said he died from “multidrug toxicity,” and the hospital later said his treatment led to certain unspecified corrections and policy changes.

“They know nobody can do nothing, nobody can touch (them), because they have a medical negligence cover,” said the Marine’s father, Jorge Freire, whose family members started a website and have become activists for changing the law. “We want to do something for the next people who go to that hospital. Maybe we can make a difference, make it safe.”