A former Green Beret nearly lost his life when he was shot by a sniper while deployed in Ramadi, Iraq in 2004. The bullet pierced his lung but heroic efforts saved his life. He was reminded once again in June 2017 how fragile life is when he went to a civilian physician with severe breathing problems that his military doctors told him was merely a case of pneumonia.
In January 2017, the 37-year-old father of two young daughters, 9 and 11, woke up feeling like he was drowning and could not breath. He went to the Womack Army Medical Center at Fort Bragg, North Carolina, where he had a chest CT scan. He reportedly was told that he was physically fine and sent home. Evidently, the CT scan was not properly read at the time he was discharged.
The veteran’s condition continued to deteriorate until May 2017, when he was rushed by ambulance back to the Army hospital. The emergency room records reportedly indicate that physicians re-evaluated his January 2017 chest CT scan and noted an irregularity described as a “possible mediastinal mass” and recommended a transbronchial biopsy, none of which was told to the veteran. Again the man was sent home, having been told that he had a simple case of pneumonia.
After he began coughing up blood, he contacted a pulmonologist on the Army base but was told he would have to wait at least one month for an appointment because he was a new patient. He therefore turned to the civilian doctor. When the civilian doctor performed a biopsy on the veteran in June 2017, the devastating results were terminal Stage Four lung cancer that had doubled in size since January 2017 and had spread to other organs.
Congress enacted the Federal Tort Claims Act in 1946 to create a remedy for individuals injured by the negligence of government employees. However, the U. S. Supreme Court carved out an exception, now known as the Feres Doctrine, which bars claims by military personnel for injuries received “incident to military service.” Courts have interpreted “incident to service” to encompass any treatment which military members receive in military medical facilities. Therefore, the Feres doctrine bars service members from bringing claims for medical malpractice.
Recent Challenge To The Feres Doctrine
On October 11, 2018, Walter Daniel filed a petition with the United States Supreme Court for the right to proceed with a medical malpractice lawsuit on behalf of his wife, Rebekah Daniel, who died after she hemorrhaged following childbirth at Naval Hospital Bremerton in 2014. Rebekah Daniel lost more than 1,500 ml of blood and bled to death allegedly because her healthcare team failed to follow the standards of care for postpartum hemorrhage, including acting quickly to check coagulation levels, administer blood and plasma transfusions, and other interventions. The Feres doctrine has prevented Rebekah Daniel’s family from pursuing a legal claim against the military hospital because she was an active-duty Navy lieutenant when she died.
The United States Court of Appeals for the Ninth Circuit (“Federal Appellate Court”) stated in its decision in the Daniel case filed on May 7, 2018 that it “regretfully reach[s] the conclusion that [the plaintiff’s] claims are barred by the Feres doctrine.” In its opinion, the Federal Appellate Court stated: “As we have done many times before, we regretfully reach the conclusion that [Walter Daniel’s] claims are barred by the Feres doctrine and, therefore, affirm [the dismissal of the case]. Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.”
If you or a loved one suffered injury (or worse) as a result of medical malpractice at a federal medical facility, you should promptly consult with a local medical malpractice lawyer in your U.S. state who handles Federal Tort Claims Act claims and who may investigate your federal medical malpractice claim for you and represent you or your loved one in a federal tort claim action, if appropriate.
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