We have another military medical malpractice case and another reason for Congress to legislatively negate the infamous Feres doctrine. Airman Colton Read, 20, went into the David grant Medical Center at Travis Air Force Base near Sacramento for a simple gallbladder operation — only to end up a double amputee due to malpractice.
For years, I have written articles as both an academic and as a columnist against the Feres Doctrine, which bars lawsuits against the military for negligence. For a discussion of the Feres Doctrine and its untold harm, click here and here and here. Such cases occur routinely but Congress refuses to act. (here and here and here).
In this case, Read went in for simple laparoscopic surgery to remove his gall-bladder. However, about 10 am (an hour before the surgery) a nurse ran out screaming that they needed blood. The Air Force surgeon had cut his aortic valve. However, the Air Force waited until 5:30 to send him to US Davis for a vascular surgeon. He had lost so much blood that doctors had to amputate both legs.
I can barely write about these stories after watching these tragedies for over a decade of study — only to see Congress ignore pleas from judges, professors, and military families for action. My study of the Feres Doctrine detailed about malpractice and negligence appeared much higher in the military than in the private area where there is a deterrent in the form of legal recourse for soldiers, sailors, air force personnel, and Marines. It is simply cheaper to maim or kill our military personnel. If members are serious of granting the very best for our military, they can start by giving them the same basic protections as other citizens.
For the full story, click here.
You can read more about Colton’s story at http://www.coltonread.com
The FTCA should be revised to only exclude “battlefield” treatment and conditions.
We all agree that something does not add up. If you go by the article written–why was the surgeon needing to do an incision an hour prior to the surgery? That time would be with the nurse and Anesthesiologist Preparing for the Surgery. Therefore it appears the article has mistated who caused the original trauma, typo, or something else. My question would be with regard to compensation of the damages done to this poor person (regardless of is military background-although I respect it highly) would be –are the doctor(s) involved contracted specifically with the military hospital? (meaning they have a signed contract of limitations to practice only with that hospital (military) and are the agents, employees or extended representatives of the hospital)–if not then they are individuals and would be responsible as an individual practice for the “human error”. Seeing the error was far below the acceptable Standard of Care. Mistakes happen, human error happens, but the standard of care should reflect immediate diagnosis, managment, and monitoring and/or immediate action. In this case immediate action would of been (in my opinion) the best cause of action. How long did it take??? I do not have all the info so I am just passing on my opinion from what I have read. My foodforthought.
I wish the family involved my prayers and well being!
bigdog, who is het jerkwad and what exactly did he or she post that upset you?
Het jerkwad-
Get your FACTS straight before spouting off… You are simply regurgitating what you read on Fox News, etc……
There is WAY more to this story than presented here… Bottom line is you are presenting a “story” from the families’ perspective – and NOT the facts…
Grow up!
Prof. Turley,
This wasn’t malpractice, it was a felony. These doctors and their superiors should be drummed out of the service so that they cannot hurt any other soldier.
Thanks for being so passionately concerned about the Feres doctrine. It continually surprises me that our representatives can’t see how unjust this situation is and, especially how tragic is this particular case.
Bob,Esq., thanks for the link. I’ve been wondering when someone would bring up the Iqbal decision. I read the whole damn thing and found it to be a complete abomination. My first thought was “plausible” to whom? What is the standard? My second thought was does anyone believe that Justice Scalia would find “plausible” allegations that Vice Pres. Cheney has authorized and approved the torture of human beings? After all, how can someone you go duck hunting with really be a bad guy?
Does the decision mean that in real life nothing “implausible” ever occurs which would give rise to a cause of action? Since when did we decide that federal judges could rule on a motion to dismiss by considering the credibility of factual allegations? I guess we can eliminate the summary judgment and judgment on the pleadings rules.
The Iqbal decision also highlights the absurdity of the Sotomayor hearings. The Democrats could have used the Iqbal decision to good advantage in explaining the importance of diversity and the effect that one’s background and experience brings to bear on the analysis of facts. Unless we believe that pleadings must be viewed from the standpoint of an “old white guys” plausibility test, it should be obvious that a factual scenario which might appear implausible to Roberts, Alito and Scalia might fall within the scope of experience of a “wise Latina.”
I could go on, but I don’t have the time. This decision should cause a lot more debate than it has so far.
Sleeper Decision Could Have Impact on Litigation
By ADAM LIPTAK
Published: July 20, 2009
WASHINGTON
The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.
But the lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.
…
Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” she said, “the court’s majority messed up the federal rules” governing civil litigation.
…
http://www.nytimes.com/2009/07/21/us/21bar.html?hp
Makes me want to sign up right now.
What a country.
And, if by chance, Airman Reed is ever directed to this blog; know that you are in our hearts and prayers. You stood up for us, now, the least we can do, is stand up for you.
I live near an Air Force hospital. I one asked a neighbor who worked there if it was OK for a civilian to use the ER. He said, “only if you want to die.”
A dear friend specialized in emergency medicine. I’ve watched him cry like a baby when telling stories of ER and surgery mishaps. This kind of thing happens far too often, and refusing to hold anybody accountable is wrong.
Decisions in the battlefield are one thing, but mishaps in a stateside hospital cannot be swept under the rug. Feres must be changed.
This is part of my conundrum: Is it wise to make concessions on tort reform to the AMA and the rest of the medical profession in return for their support on health care reform, or do the dangers of the Feres doctrine show us how important accountability is for deterrence?
eniobob:
you will end up with a labotomy.
this is just sickening. along with stories about subpar conditions in VA hospitals, the lack of proper body armor, soldiers getting electrocuted while they brush their teeth and people here wonder why I refuse to send my kids into the military. if they wanted to wear uniforms they can work at McDoalds. The pay is about the same and chances are if something goes wrong with the fryer their employer will take responsibility.
This is akin to the no accountability doctrine currently soaking into presidential policy theory.
It leads to a bigger problem which is then orders of magnitude more difficult to correct.
Being a Vet,with some glacoma issues,the VA has offered a new “COLD LASER” surgey to slow down the process of glacoma.
After reading this I am really skeptical.