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Military Personnel Deserve Equal Rights to Sue for Medical Malpractice

April 22nd, 2015

Every year, tens of thousand of serious medical errors are made in American hospitals. However, only a fraction of those unnecessary mistakes lead to medical malpractice lawsuits. There are many reasons as to why it is so difficult to hold a doctor or hospital accountable for a serious injury resulting from a careless mistake. Earlier this week, the New York Times examined one such frustration: institutional restrictions for our active duty military treated at VA hospitals.

The article summarizes an alarming problem that describes America’s 1.3 million active-duty service members as “captives of the military system, unable, without specific approval, to get care elsewhere if they fear theirs is substandard or dangerous.” The article goes on to note that if the patient is harmed or even killed, the service member or his or her surviving family has no legal right to challenge the care or file a medical malpractice suit. Just as frustrating is a lack of information provided by the military. Even in cases where the hospital is required to investigate a suspected malpractice situation, the investigation is internal and confidential. Thus, the injured patient or their family may never know why a loved one was harmed or whether steps are being taken to prevent another service member from suffering from the same mistake.

Among many unfortunate stories highlighted by the Times article is that the death of 27-year-old Sergeant Ronald Robinson Jr. Sergeant Robinson suffered from atrial fibrillation (commonly referred to as AFIB), a condition that causes the heart to beat at an abnormal, often faster, rate. He underwent a routine, outpatient procedure at the military’s San Antonio Medical Center to burn away problem scar tissue around the heart that causes the irregular beating. During the surgery, something went horribly wrong and Sargent Robinson died on the operating table. Desperate for answers as to what may have happened, Belinda Robinson, Sergeant Robinson’s mother, met with the cardiac electrophysiologist who performed the surgery. His only response was, “I wish I could tell you what happened… it is just an unknown.”

Further investigation by the New York Times revealed that the cause of death was not simply unknown. The death was never investigated. The required formal, confidential inquiry into the death never occurred. After a medical review of the relevant medical records by the Times, an independent doctor concluded that “because of some unknown factor, possible an equipment malfunction… the doctor inadvertently cauterized too close to two crucial pulmonary veins.” This, in turn, caused the veins to shutdown leading to fatal hemorrhaging. Had it not been for the Times investigation, the grieving family would never have received any explanation as to why their son died. Even with this explanation, the family is barred from bringing any sort of claim for medical malpractice or wrongful death.

The stories of other similar occurrences in military hospitals across the country are numerous and the results and lack of information or accountability just as frustrating. The Defense Department defends their policy by citing the need to maintain military discipline. They point to the 1950 Supreme Court case of Feres v. United States that bars active duty service members or their families from filing medical malpractice claims under the Federal Tort Claims Act. The Department claims that this restriction does not reduce the quality of care provided to men and women serving in the military.

Yet a simple glance at the headlines makes it difficult to take comfort in their assurance. In addition to the Times exposé, complaints of substandard military care has been in the news far too frequently. Examples include the recent national firestorm over treatment of injured veterans at Walter Read Medical Center to more local complaints of major delays in needed treatments at the VA’s Jesse Brown Medical Center in Chicago. The bottom line is simple: our military service members and veterans put their lives in danger in places far from home. They, of all people, should have access to the same justice and accountability as non-military civilians when they are carelessly harmed at our own military hospitals.

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